Parket bij de Hoge Raad, 11-07-2023, ECLI:NL:PHR:2023:676, 22/00545

IV. INTERVENING CIVIL PROCEEDINGS

(…)

17. On an unspecified date the State (the Tax and Customs Administration Directorate-General of the Ministry of Finance) summoned the applicant to appear before the provisional measures judge (voorzieningenrechter) of the Civil Law Section of the Regional Court (rechtbank) of The Hague in summary injunction proceedings (kort geding). The purpose was to obtain an order for the applicant to disclose information concerning bank account(s) held abroad after 31 December 1995 and submit documents relating to such bank account(s) in respect of the years running from 1 January 1996 up to and including 1 January 2000. The State based its claim on the taxpayers’ duty to provide information to the Tax Inspector under section 47 of the Act (…).

18. Having heard the parties on 19 November 2008, the provisional measures judge gave judgment on 27 November 2008. He ordered the applicant to state on the form “Declaration; Bank account(s) held abroad” (..) if he (had) held bank accounts abroad after 31 December 1995 and, if so, to provide information about those accounts by answering the questions on the form “Statement (opgaaf); Bank account(s) held abroad” (ibid.) and to provide the documents indicated on that form, including copies of all bank statements of the account(s) concerned covering the period between 1 January 1996 and 31 December 2000. The applicant was to comply with the order within fourteen days from the day on which the judgment was served on him and on pain of a penalty payment (dwangsom) of 5,000 euros (EUR) for each day or part of a day thereafter that he failed to comply, to a maximum of EUR 50,000. The judgment was provisionally executable (uitvoerbaar bij voorraad).

19. The applicant did not appeal. On 9 December 2008 his counsel sent to the counsel of the State documents received from the applicant and his wife, which consisted of the forms that had previously been sent to them by the Tax Inspector (…) and in which they declared that they had held a bank account together at X Bank in Luxembourg after 31 December 1994. Bank statements and portfolio summaries relating to that account were also submitted.

(…)

RELEVANT LEGAL FRAMEWORK AND PRACTICE

(…)

II. EUROPAN UNION LAW

40. In its judgment of 18 October 1989 in Orkem v Commission (…) concerning European competition law, the Court of Justice of the European Communities (“the CJEC”, which on 1 December 2009 became known as the Court of Justice of the European Union (CJEU)) examined the powers of the Commission to obtain information from an undertaking under investigation. In so far as relevant, it held as follows:

“34 Accordingly, whilst the Commission is entitled, in order to preserve the useful effect of Article 11(2) and (5) of Regulation No 17, to compel an undertaking to provide all necessary information concerning such facts as may be known to it and to disclose to it, if necessary, such documents relating thereto as are in its possession, even if the latter may be used to establish, against it or another undertaking, the existence of anti-competitive conduct, it may not, by means of a decision calling for information, undermine the rights of defence of the undertaking concerned.

35 Thus, the Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove.”

41. The European Union courts confirmed this case-law on many occasions, whilst also acknowledging the relevant developments in the caselaw of this Court which took place after the Orkem judgment. Thus, the CJEC referred for example to Funke, Saunders and J.B. v. Switzerland (…) in its ruling of 15 October 2002 in Limburgse Vinyl Maatschappij NV and others v Commission (…) and held that, for the privilege against self-incrimination to apply, “both the Orkem judgment and the recent caselaw of the European Court of Human Rights require, first, the exercise of coercion against the suspect in order to obtain information from him and, second, establishment of the existence of an actual interference with the right which they define” (…). In this judgment the CJEC also clarified that the right of an undertaking, as acknowledged in Orkem, not to be compelled by the Commission to admit their participation in an infringement of European competition law, means that, in the event of a dispute as to the scope of a question, it falls to be determined whether an answer from the undertaking to which the question was addressed was in fact equivalent to the admission of an infringement, such as to undermine the rights of the defence (…).

On 28 April 2010 the General Court of the European Union held that an undertaking could not be recognised as having an absolute right of silence. It considered that the mere fact of an undertaking being obliged to comply with the Commission’s request for the production of documents already in existence could not constitute a breach of the principle of respect for the rights of the defence or impair the right to fair legal process, which offered, in the specific field of competition law, protection equivalent to that guaranteed by Article 6 of the Convention. Moreover, where an undertaking was asked to describe the object, course, results and conclusions of meetings in which it had participated, when it was clear that the Commission suspected that the object of those meetings was to restrict competition, a request of that nature was of such a kind as to require the undertaking concerned to admit its participation in an infringement of the Community competition rules, so that the undertaking was not required to answer questions of that type. In such a situation, undertakings could not claim that their right not to incriminate themselves had been infringed when they had nevertheless, voluntarily, replied to such a request (see Amann & Söhne and Cousin Filterie v Commission (…)).

The Orkem case-law was most recently confirmed and clarified by the CJEU in its judgment of 28 January 2021 in Qualcomm (…). It found that in so far as the case-law arising from Amann & Söhne and Cousin Filterie v Commission (…) ruled out that the mere fact of being obliged to produce documents already in existence could infringe the rights of defence, that case-law could not be interpreted, a contrario, as meaning that any request for the production of a document which could not be regarded as “already in existence” necessarily infringed those rights, in particular the right to avoid self-incrimination (…). An undertaking would only be allowed to evade the obligation to communicate all necessary information where it was compelled to provide answers which might involve the admission on its part of the existence of an infringement (…).

42. In addition, in a judgment of 2 February 2021 – which concerned answers to questions to be provided rather than documentary material and is therefore of less relevance in the context of the present case – the Grand Chamber of the CJEU addressed the privilege against self-incrimination for the first time in the context of a natural person (Consob (…)). With reference to this Court’s judgments in Saunders (…) and Ibrahim and Others v. the United Kingdom (…), the CJEU held that the right to silence would be infringed where a suspect is obliged to testify under threat of sanctions and either testifies in consequence or is sanctioned for refusing to testify (…). It considered that the right to silence could not be confined to statements of admission of wrongdoing or to remarks which directly incriminate the person questioned, but that it also covered information on questions of fact which may subsequently be used in support of the prosecution and may thus have a bearing on the conviction or the penalty imposed on that person (…). The CJEU specified that its case-law concerning the obligation for undertakings, in the framework of proceedings which may lead to the imposition of sanctions for infringements of EU competition rules, to provide information which may be used to establish the existence of anti-competitive conduct (such as Orkem, (…)) could not be applied by analogy in the determination of the scope of the right to silence of natural persons who are the subject of proceedings for an offence of insider dealing (…).

(…)

THE LAW

ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

43. The applicant complained under Article 6 § 1 of the Convention that documents concerning a foreign bank account had been obtained from him under coercion for use in tax proceedings in which tax fines were imposed on him, in disrespect of the privilege against self-incrimination. Article 6 § 1 of the Convention reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

(…)

General principles

(i) The right to a fair trial under Article 6 § 1 of the Convention

60. The right to a fair trial under Article 6 § 1 is an unqualified right. However, what constitutes a fair trial cannot be the subject of a single unvarying rule but must depend on the circumstances of the particular case (…). The Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (…).

61. Compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be excluded that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings (…).

62. The Court has found that cases concerning tax surcharges – or tax fines – differ from the hard core of criminal law for the purposes of the Convention, and that, consequently, the guarantees of Article 6 under its criminal head will not necessarily apply with their full stringency (…).

(ii) General approach to the privilege against self-incrimination

63. The Court has held that the right to remain silent and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 of the Convention. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 (…).

64. The privilege against self-incrimination does not protect against the making of an incriminating statement per se but against the obtaining of evidence by coercion or oppression. In this latter context, the Court has held as follows in its judgment in Ibrahim and Others (…):

“... The Court, through its case-law, has identified at least three kinds of situations which give rise to concerns as to improper compulsion in breach of Article 6. The first is where a suspect is obliged to testify under threat of sanctions and either testifies in consequence or is sanctioned for refusing to testify. The second is where physical or psychological pressure, often in the form of treatment which breaches Article 3 of the Convention, is applied to obtain real evidence or statements. The third is where the authorities use subterfuge to elicit information that they were unable to obtain during questioning.”

65. For an issue to arise from the perspective of the protection against self-incrimination, therefore, an applicant must firstly have been subject to some form of coercion or compulsion by the authorities (…). Secondly, for a case to fall within the scope of protection of the right not to incriminate oneself, either that compulsion must have been applied for the purpose of obtaining information which might incriminate the person concerned in pending or anticipated criminal proceedings against him or her, or the case must concern the use of incriminating information compulsorily obtained outside the context of criminal proceedings in a subsequent criminal prosecution (…).

66. The underlying principle for this is the fact that the right not to incriminate oneself presupposes, in particular, that the prosecution in a criminal case seek to prove their case against the accused without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention (…).

67. The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing (…). However, where such evidence has been obtained by a measure which breaches Article 3, the privilege against self-incrimination remains applicable (…).

68. In cases where the privilege against self-incrimination is applicable (…), the Court has held – noting that the right not to incriminate oneself is not absolute (…) – that the degree of compulsion applied will be incompatible with Article 6 where it destroys the very essence of the privilege (…). Not all direct compulsion will destroy the very essence of the privilege against self-incrimination and thus lead to a violation of Article 6. In examining whether, in a given procedure, compulsion has extinguished the very essence of this privilege, the Court will consider, in particular, the nature and degree of the compulsion, the existence of any relevant safeguards in the procedure and, crucially, the use to which any material so obtained is put (…).

(iii) The privilege against self-incrimination and coercion to supply documents in the context of financial law matters

69. In principle, the privilege against self-incrimination can also apply in situations of coercion to supply documents. In developing its case-law in financial law matters falling under the criminal head of Article 6 § 1 of the Convention, the Court has however made distinctions, in particular as to the pre-existence of such materials and as to whether the authorities were aware of their existence. The following case-law of the Court is of relevance in this context.

70. The case of Funke (…) concerned compulsion in the shape of pecuniary penalties to produce foreign bank statements in the context of a suspicion of infringement of regulations governing foreign exchange controls. In its reasoning the Court placed emphasis on the fact that the customs authorities had sought documents which they believed must exist, although they were not certain of the fact, and that they had been “unable or unwilling” to procure them by means other than compelling the applicant himself to provide evidence. It held that the special features of customs law could not justify such an infringement of the right to remain silent and not to contribute to incriminating himself and concluded that Article 6 had been breached (…).

71. In J.B. v. Switzerland (…) the tax authorities – having noted that the applicant had made investments with one P. and his companies that had not been declared – attempted to compel him by means of the imposition of fines to submit “all documents concerning the companies in which he had invested money” (…). In the applicant’s opinion, it was clear that the authorities suspected the existence of further items of income and assets which they could not prove, for which reason they requested the information. While the Court did not wish to speculate as to what the nature of such information would have been, it noted that the applicant could not exclude that, if it transpired from these documents that he had received additional income which had not been taxed, he might be charged with the offence of tax evasion. In view of the persistence with which the tax authorities attempted to achieve their aim, the Court remained unconvinced by the Government’s argument that it could not be said that the authorities had gone out on a “fishing expedition” (…). Against the above background, the Court found a violation of the right under Article 6 § 1 of the Convention not to incriminate oneself.

72. In Allen v. the United Kingdom (…), the Court held that the requirement on the applicant to make a declaration of his assets to the revenue service did not disclose any issue under Article 6 even though a separate penalty was attached to a failure to do so. The Court differentiated Allen from J.B. v. Switzerland on the grounds that the applicant in Allen had not been prosecuted for failing to provide information which might have incriminated him in pending or anticipated criminal proceedings but for the offence of making a false declaration of his assets, which was an offence itself. The Court held that the privilege does not act as a prohibition on the use of compulsory powers to require taxpayers to provide information about their financial affairs for the purpose of securing a correct tax assessment, noting that the obligation to make disclosure of income and capital for the purposes of the calculation and assessment of tax is a common feature of the tax systems of member States and it would be difficult to envisage them functioning effectively without it. The Court noted that “the privilege against self-incrimination cannot be interpreted as giving a general immunity to actions motivated by the desire to evade investigations by the revenue authorities”. The Court followed the Allen approach in King v. the United Kingdom (…), which also raised the issue of sanctioning the applicant for making an inadequate tax return.

73. In Chambaz (…) two fines were imposed on the applicant for his refusal to comply with a request from the Swiss fiscal authorities to submit all documents concerning his business dealings with a company and with banks which held assets on that company’s behalf. While appeal proceedings against the imposition of those fines were pending, the federal tax authorities opened an investigation against the applicant for tax evasion.

Relying on Article 6 § 1, the applicant complained of a violation of his right not to incriminate himself due to the fact that he had been fined for his refusal to produce the requested documents which could have been used against him in the investigation for tax evasion. On this point, the Court noted that by fining the applicant, the authorities had put him under pressure to furnish documents which would have provided information on his income and assets. While the Court did not wish to speculate as to the nature of that information, it considered that the applicant could not exclude that any information relating to additional income from non-taxed sources exposed him to being accused of having committed the offence of tax evasion and was of such a nature as to compromise his position in the investigation for tax evasion (…). Even though, when reiterating the general principles (…), it made a reference to Saunders (…) the Court did not refer to the distinction made in that judgment between material the existence of which is dependent on the will of the person concerned, such as replies to questions put, and material, such as already existing documents, that exists independently of that person’s will. It concluded that in the specific circumstances of the case there had been a violation of Article 6 § 1.

(iv) Summary of the above case-law

74. In order for an issue to arise from the perspective of the privilege against self-incrimination, there must be some form of coercion or compulsion exerted on the person concerned. It is furthermore required that either that person is subject to existing or anticipated criminal proceedings – that is to say, a “criminal charge” within the autonomous meaning of Article 6 § 1 –, or incriminating information compulsorily obtained outside the context of criminal proceedings is used in a subsequent criminal prosecution (see paragraph 65 above). These may be considered the two prerequisites for the applicability of the privilege against self-incrimination (…).

75. Where these prerequisites are met, it is necessary to determine whether the use of evidence obtained by means of coercion or compulsion should nevertheless be considered as falling outside the scope of protection of the privilege against self-incrimination. As it transpires from the Court’s caselaw, the right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent. When methods of coercion are used with the aim of having an accused person answer questions or make testimonial statements, either orally or in writing, the will to remain silent is clearly not respected and the privilege against self-incrimination thus applies. The privilege does not, however, extend to the use in criminal proceedings of materials obtained from an accused through methods of coercion when these materials have an existence independent of his or her will (…).

76. Where the use of documentary evidence obtained under threat of penalties in the context of financial law matters is concerned, it may further be deduced from the Court’s case-law (…), that such use does not fall within the scope of protection of the privilege against selfincrimination where the authorities are able to show that the compulsion is aimed at obtaining specific pre-existing documents – thus, documents that have not been created as a result of the very compulsion for the purpose of the criminal proceedings – which documents are relevant for the investigation in question and of whose existence those authorities are aware. That situation is to be distinguished from the situation where the authorities attempt to compel an individual to provide the evidence of offences he or she has allegedly committed by forcing him or her to supply documents which they believe must exist, although they are not certain of it (…). The latter situation the Court has described as “fishing expeditions”. The Court considers that in that context a parallel may be drawn with testimonial evidence: when a person makes a statement which incriminates him or her, he or she is similarly providing the authorities with information of whose existence those authorities were not yet aware. Where the making of that statement came about as a result of coercion or compulsion, an issue arises under the privilege against self-incrimination, since, as set out above (…), it is incumbent on the prosecution in a criminal case to prove their case without resort to evidence obtained through such methods.

77. Lastly, it follows from the case-law that, regardless of whether or not the authorities are aware of the existence of documentary or other material evidence, if this has been obtained by methods in breach of Article 3, its use will always fall within the scope of the privilege against self-incrimination (…).

78. If the prerequisites for the applicability of the privilege against selfincrimination are met (…), and the use of evidence obtained through coercion or compulsion does fall within the scope of protection of that privilege (…), it is necessary to examine whether the procedure did not extinguish the “very essence” of the privilege, that is to say, to determine the manner in which the overall fairness of the proceedings was affected. For this purpose, it will be necessary to have regard, in turn, to the factors set out in paragraph 68 above: the nature and degree of compulsion used to obtain the evidence; the existence of any relevant safeguards in the procedure; and the use to which any material so obtained is put.

(b) Application of the above principles to the present case

79. Turning to the present case, the Court notes that the applicant complained that, in breach of the privilege against self-incrimination, he had been ordered, by judgment, to provide under the threat of penalty payments documents to the domestic fiscal authorities which were used in tax proceedings in which fines were imposed on him (…). Relying on the Court’s case-law, he argued that there were no grounds for concluding that this situation fell outside the scope of the privilege against self-incrimination (…).

80. The Court observes at the outset that the documents submitted by the applicant consisted of, firstly, two forms completed by the applicant in which he indicated that he had held a bank account at X Bank in Luxembourg and, secondly, bank statements and portfolio summaries relating to that account (…).

81. There is, however, no indication whatsoever in the file that use was made of the two forms in order to establish intent on the part of the applicant as required for the imposition or re-setting of a tax fine as at issue (…). Indeed, the Supreme Court explicitly stated that no use had been made of the forms for the imposition of the tax fine (…). The domestic proceedings solely concerned the use of bank statements and portfolio summaries that had been drawn up by X Bank and related to an account of which the applicant had already been identified as an account holder. That being the case, no issue can arise as to a breach of the right not to incriminate oneself in relation to the forms submitted by the applicant.

82. In examining whether the prerequisites for the applicability of the privilege against self-incrimination are met in so far as the use of the bank statements and portfolio summaries is concerned, the Court firstly observes that at the time the provisional measures judge ordered the applicant, on pain of penalty payments, to disclose documents relating to bank accounts held by him abroad after 31 December 1995 (…), a tax fine for his failure to comply with his obligations under section 47 of the Act in respect of capital tax for 1996 had already been imposed on him (…). Secondly, it observes that although, strictly speaking, it might be true that the order of the provisional measures judge did not relate to the capital tax adjustment and tax fine already imposed and in respect of which objection proceedings were pending, it is a matter of fact that those latter proceedings had been adjourned awaiting the outcome of the summary injunction proceedings (…). This adjournment enabled the Tax Inspector subsequently to make use, in the decision on the objection lodged by the applicant against the tax adjustment issued and the accompanying fine imposed for the year 1996 (…), of the bank statements and portfolio summaries that had been provided by the latter pursuant to the order of the provisional measures judge.

83. As the Court has found above (…), the proceedings in which the applicant’s objection and appeals against the tax fine imposed on him were determined fell within the scope of Article 6 of the Convention under its criminal head. Further, the bank statements and portfolio summaries that were used for re-setting the fine were obtained from the applicant by means of compulsion, namely the order of the provisional measures judge for disclosure on pain of substantial penalty payments (…). In this context the Court reiterates that Article 6 § 1 – and thus also the right not to incriminate oneself – applies throughout the entirety of proceedings for “the determination of ... any criminal charge”, including proceedings whereby a sentence is fixed (…). As such, the two prerequisites for applicability of the privilege against selfincrimination have been met (…).

84. The Court will therefore next examine whether the use of the bank statements and portfolio summaries falls within the scope of the protection provided by that privilege (…).

85. The Court has no doubt that these were pre-existing documents. It further considers that the authorities were aware of their existence since it had already been established that the applicant had held a bank account in Luxembourg at the relevant time (…). It can therefore not be said that the authorities were engaging in a “fishing expedition” when they instituted summary injunction proceedings in order for the provisional measures judge to order the applicant to submit certain documents in relation to that account (…). The order subsequently issued by the provisional measures judge, moreover, specifically indicated what documents the applicant was to supply (…). The present case can thus be distinguished from the cases of J.B. v. Switzerland (where the applicant was to provide all documents which he had concerning certain companies; (…)) and Chambaz (where the applicant was fined for his failure to submit all documents concerning his business dealings with a particular company and with banks which held assets on that company’s behalf; (…)). Lastly, the imposition of penalty payments which the applicant would incur if he failed to comply with the order of the provisional measures judge (…) cannot be considered to amount to treatment in breach of Article 3 of the Convention (…).

86. For the above reasons the Court finds that in the circumstances of the present case the use of the bank statements and portfolio summaries concerning the applicant’s account with X bank that were obtained from him by a judicial order for disclosure on pain of penalty payments does not fall within the scope of the protection of the privilege against self-incrimination. There is, therefore, no reason for the Court to proceed to the examination as set out in paragraph 78 above.

87. In the light of the foregoing considerations, the Court concludes that it cannot be said that, due to the use of the aforementioned documents, the applicant was deprived of a fair trial.

88. Accordingly, the Court finds that there has been no violation of Article 6 § 1 of the Convention.’