CASE OF DE LEGÉ v. THE NETHERLANDS

FOURTH SECTION

CASE OF DE LEGÉ v. THE NETHERLANDS

(Application no. 58342/15)

JUDGMENT

Art 6 § 1 (criminal) • Fair hearing • Use of bank documents for recalculation of tax fine – obtained from applicant by judicial order for disclosure, on pain of penalty payments – not within scope of privilege against self-incrimination • Scope and application of privilege concerning coercion in supplying documents in financial-law context • Both prerequisites for applicability of privilege met in circumstances • Authorities aware of pre-existing documents establishing holding of foreign bank account when seeking judicial order for disclosure • Judicial order specifically indicating documents to be supplied • Imposition of penalty payments in event of non-compliance with judicial order not amounting to treatment in breach of Art 3

STRASBOURG

4 October 2022

FINAL

30/01/2023

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of De Legé v. the Netherlands,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Gabriele Kucsko-Stadlmayer, President,

Tim Eicke,

Yonko Grozev,

Armen Harutyunyan,

Pere Pastor Vilanova,

Jolien Schukking,

Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 58342/15) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Dutch national, Mr Levinus Adrianus de Legé (“the applicant”), on 19 November 2015;

the decision to give notice to the Netherlands Government (“the Government”) of the complaint concerning the right to a fair trial;

the parties’ observations;

Having deliberated in private on 5 July and 6 September 2022,

Delivers the following judgment, which was adopted on that
last-mentioned date:

INTRODUCTION

1. The case concerns the use of documents for the recalculation of a tax fine. Those documents related to a foreign bank account and were obtained from the applicant under threat of substantial penalty payments. Relying on Article 6 § 1 of the Convention, the applicant alleged a breach of the privilege against self‑incrimination.

THE FACTS

2. The applicant was born in 1934 and resides in El Campello, Spain. He and his spouse were residents of the Netherlands until 2000, when they moved to Spain. He was represented by Mr M. Hendriks, a lawyer practising in Nijmegen.

3. The Government were represented by their Agent, Ms B. Koopman, of the Ministry of Foreign Affairs.

4. The facts of the case may be summarised as follows.

5. BACKGROUND TO THE CASE

6. In accordance with Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation (OJ 1977 L 336, p. 15) and Article 27 of the Tax Treaty between Belgium and the Netherlands of 19 October 1970, the Dutch Tax and Customs Administration (Belastingdienst) in 2005 obtained from their Belgian counterparts information concerning bank accounts held by residents of the Netherlands with X Bank in Luxembourg, including the balances of those accounts on 21 December 1994, and 5 September and 28 November 1996. The account information had been stolen from the bank and had been discovered in Belgium in the course of a criminal investigation.

7. On the basis of that information, the Dutch Tax and Customs Administration identified the applicant as one of the account holders.

8. Luxembourg had banking secrecy laws at the relevant time. They prevented the transmission by lawful means of information relating to accounts held with banks based in that country to foreign tax authorities except with the cooperation of the account holders themselves.

9. THE CORRESPONDENCE PHASE

10. On 7 March 2007 the tax inspector wrote to the applicant, informing him that an investigation into Dutch residents holding foreign bank accounts had been launched and that it appeared that he held (or had held) one or more bank accounts abroad, details of which he had not given in his income tax (inkomstenbelasting) or capital tax (vermogensbelasting) returns. The applicant was requested to declare any past or present foreign bank accounts held by him after 31 December 1994 on a form entitled “Declaration (verklaring); Bank account(s) held abroad”, and to complete a second form, entitled “Statement (opgaaf); Bank account(s) held abroad”, both of which were enclosed with the tax inspector’s letter. The second form indicated, inter alia, which documents the applicant was to provide, in addition to which the tax inspector in his letter also asked the applicant to submit copies of all bank statements for the account(s) concerned covering the period between 1 January 1995 and 31 December 2000. He was informed that, pursuant to section 47(1) of the General State Taxes Act (Algemene wet inzake rijksbelastingen – hereinafter “the Act”), he was obliged to provide the information and materials requested (inlichtingenplicht – see paragraph 33 below).

11. On 28 March 2007 the applicant, through his counsel, replied in writing. In so far as relevant to the case before the Court, he observed that it was “sufficiently known” that letters such as that of 7 March 2007 would be followed by additional tax assessments (navorderingsaanslagen) together with tax fines. Since, consequently, Article 6 of the Convention under its criminal head was applicable to the latter, he invoked the privilege against self‑incrimination, relying on Saunders v. the United Kingdom (17 December 1996, Reports of Judgments and Decisions 1996-VI) and J.B. v. Switzerland (no. 31827/96, ECHR 2001-III), pointing out that the information in issue was such that the Tax and Customs Administration could not obtain it without his cooperation, and noting that it was not at all certain that that information even existed. He informed the tax inspector, accordingly, that “in the given circumstances” the request for information would not be complied with.

12. On 27 June 2007 the tax inspector sent to the applicant’s spouse a letter with the same wording and enclosures as that sent to the applicant on 7 March 2007. On 13 July 2007 the applicant’s spouse, through her counsel, replied in the same terms as the applicant had done in his letter of 28 March 2007.

13. On 25 July 2007 the tax inspector informed the applicant and his spouse that, as they had failed to submit the information and material requested and had thus failed to comply with their obligations under sections 47 et seq. of the Act, additional tax assessments for the purposes of income tax and/or capital tax would be issued on the basis of estimated figures in the course of the year.

14. On 22 November 2007 the tax inspector wrote to the applicant, informing him that he held data indicating that one or more bank accounts in the names of the applicant and his spouse were or had been held with X Bank in Luxembourg; on the basis of those data it had been established that the applicant and/or his spouse were or had been (joint) holders of the account(s). The data in the tax inspector’s possession also included balances of the account(s) on different dates in the period 1994 to 1996. He notified the applicant of his intention to apply an increase in the applicant’s taxable income for 1995 on the basis of estimated returns on investment and on interest rate figures obtained from the national statistical office, Statistics Netherlands (Centraal Bureau voor de Statistiek), and to apply an increase in his taxable capital on 1 January 1996 on the basis of an estimate having regard to the average increase in the balances of a large number of accounts held with X Bank in Luxembourg between 1994 and 1996. The tax inspector would then issue corresponding additional tax assessments for income tax and for contributions to national social security schemes (premieheffing volksverzekeringen) in respect of 1995 and for capital tax in respect of 1996, and impose statutory tax fines amounting to 100% of those additional tax assessments without any possibility of remission (kwijtschelding) on account of the applicant’s having wilfully acted in breach of section 47 of the Act. The tax inspector referred to section 18(1) of the Act as the legal basis for the imposition of those fines and to paragraph 21(3) of the 1993 Regulation on tax fines (Voorschift administratieve boeten 1993) as regards the determination of the amount of the fines (see paragraphs 35-36 below). The applicant was further informed of the consequences if he had yet to comply with the obligation pursuant to section 47 of the Act to provide the information requested; if he did so before the additional tax assessments were issued, the fines would in principle be set at 50% of the amount of those assessments. If he were to file an objection (bezwaar) against the additional tax assessments issued but fully cooperate pending the objection phase of the proceedings, the fines could be reduced to 75%.

The applicant was invited to submit a response before 1 December 2007.

13. On 28 December 2007, having noted that the applicant had not responded to the letter of 22 November 2007, the tax inspector issued the additional assessment for income tax/social security contributions that had been announced in respect of 1995, which amounted to 10,142 Dutch guilders (NLG), plus NLG 4,035 for interest on tax arrears (no. 0303.37.033.H.57), and an additional capital-tax assessment in respect of 1996 of NLG 1,928, plus NLG 726 for interest on tax arrears (no. 0303.37.033.K.67), each increased by a tax fine amounting to 100% of those additional assessments with no possibility of remission (that is, NLG 10,142 – approximately 4,600 euros (EUR) – in respect of 1995; and NLG 1,928 – approximately EUR 875 – in respect of 1996).

14. THE OBJECTION PROCEEDINGS

15. On 21 January 2008 the applicant lodged an objection against the additional tax assessment issued in respect of 1996, based on the lack of convincing evidence that he had in fact held a bank account in Luxembourg. He also challenged the tax fine imposed, arguing that since the additional tax assessment should be declared void, the fine should be as well. He further objected to the tax inspector’s conclusion that he had wilfully acted in breach of section 47 of the Act.

16. On 20 March 2008 the applicant’s counsel was allowed to see redacted documents purporting to prove the existence of the bank account or accounts in issue.

17. On 26 March 2008 the applicant also lodged an objection against the additional tax assessment issued in respect of 1995 – which had reached him after the one issued in respect of 1996 – and against the tax fine imposed, referring to the grounds of his objection lodged on 21 January 2008. In addition, he challenged the lack of evidential value of the documents relied on by the tax inspector given that the provenance of those documents was unclear and the documents themselves had been so heavily redacted as to be rendered meaningless.

18. INTERVENING CIVIL PROCEEDINGS

19. 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 Division of the Regional Court (rechtbank) of The Hague in interim 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 (see paragraph 33 below).

20. 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 entitled “Declaration; Bank account(s) held abroad” (see paragraph 8 above) whether 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 entitled “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 EUR 5,000 for each day or part of a day thereafter that he failed to comply, up to a maximum of EUR 50,000. The judgment was provisionally enforceable (uitvoerbaar bij voorraad).

21. 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, comprising the forms that had previously been sent to them by the tax inspector (see paragraphs 8 and 10 above) and in which they declared that they had held a joint account at X Bank in Luxembourg after 31 December 1994. Bank statements and portfolio summaries relating to that account were also submitted.

22. RESUMPTION OF TAX PROCEEDINGS

    1. Resumption of the objection proceedings

23. In the objection proceedings, which had been adjourned pending the interim proceedings described in paragraphs 17-19 above, the tax inspector announced in a letter of 6 April 2009 that the applicant’s objection of 26 March 2008 (see paragraph 16 above) would be declared inadmissible on procedural grounds. Those grounds are not relevant to the case now before the Court. A formal decision to that effect was taken on 1 June 2009. The tax inspector nonetheless considered the objection to be a request to have the additional income tax assessment in respect of 1995 reviewed officially (ambtshalve). Since it appeared from the information submitted by the applicant (see paragraph 19 above) that the figures on which the original estimate had been based (see paragraphs 12-13 above) were too high, they were adjusted to the actual figures. Consequently the tax due, the interest on arrears and the tax fine payable by the applicant were adjusted accordingly, resulting in the fine being set at NLG 3,067 (approximately EUR 1,400).

24. As regards the fine, the decision stated that it was for the tax inspector to prove intent or gross negligence (opzet of grove schuld) on the part of the applicant for his failure to comply with his obligations under section 47(1) of the Act (see paragraph 33 below). In the fiscal context such proof could be provided by means of (rebuttable) presumptions that were based on established facts. In the case at hand, the tax inspector presumed intent, referring to the following established facts: firstly, there was an intelligence note (renseignement) relating to a foreign bank account; secondly, experience had shown that the identification of the holders of such accounts had in almost all cases been correctly identified; thirdly, the applicant had been identified as the account holder; fourthly, the account was held in Luxembourg, out of sight of the Dutch Tax and Customs Administration; fifthly, it was common knowledge that bank balances and revenues obtained therefrom had to be declared for income tax and capital tax purposes; and, sixthly, questions on the applicant’s tax returns relating to bank balances held abroad and revenues therefrom had each time either not been answered or answered in the negative.

As to the severity of the penalty, the tax inspector considered the applicant’s behaviour sufficiently serious to warrant the fine being set at 100% of the amount of the additional tax assessment.

22. In a further letter of 6 April 2009, the tax inspector announced that the applicant’s objection of 21 January 2008 (see paragraph 14 above) would be dismissed, and a formal decision to that effect was taken on 1 June 2009. The tax inspector similarly reduced the estimated figures in respect of the year 1996 to the correct levels and adjusted the capital tax due, the interest on arrears and, accordingly, the tax fine payable by the applicant. As a result, that fine was set at NLG 1,816 (approximately EUR 825). As regards the imposition and severity of the fine, the content of the tax inspector’s letter was the same as that concerning the objection of 26 March 2008 (see paragraph 21 above).

23. Appeal proceedings

24. On 4 May 2009 the applicant lodged an appeal (beroep) against both decisions with the Tax Division (belastingkamer) of the Breda Regional Court. In so far as relevant to the case before the Court, he protested against the use of the information which he had submitted following the order of the provisional-measures judge (see paragraph 19 above) for the purpose of recalculating the tax fines. He relied on the Court’s judgments in Saunders and J.B. v. Switzerland (both cited above).

25. In two judgments of 26 July 2010 that for present purposes were based on identical reasoning, the Regional Court found that the tax authorities had used the data provided by the applicant on 9 December 2008 in a lawful manner. It based this conclusion on a judgment of the Supreme Court (Hoge Raad) of 21 March 2008 (ECLI:NL:HR:2008:BA8179), which relied on the Court’s case-law to the effect that the right not to incriminate oneself does not extend to the use in criminal proceedings of material which may be obtained 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 (see Saunders, cited above, § 69). The Regional Court further held as regards the severity of the fines that it was justified, appropriate and necessary. Nevertheless, as the “reasonable time” requirement contained in Article 6 § 1 of the Convention had been breached, it reduced the tax fines by 5% (to NLG 2,913 – approximately EUR 1,325 – and NLG 1,725 – approximately EUR 780 – respectively). It dismissed the appeals for the remainder.

26. Further appeal proceedings

27. The applicant lodged further appeals (hoger beroep) against the Regional Court’s judgments with the Tax Division of ‘s-Hertogenbosch Court of Appeal (gerechtshof).

28. On 19 December 2013 the Court of Appeal decided both appeals in a single judgment. In so far as relevant, it held as follows:

“As regards the question [whether the tax inspector breached the principle of nemo tenetur[1]]

4.8. [The applicant] claims that the tax inspector should not have used the data, which he had provided in his letter of 9 December 2008 [see paragraph 19 above], as evidence. In that context [the applicant] argues that he had interpreted the tax inspector’s letter of 7 March 2007 [see paragraph 8 above] as a criminal charge and that, as a result of having been coerced into submitting the bank documents on 9 December 2008, he had provided evidence against himself in breach of the principle of nemo tenetur.

4.9. In its judgment of 12 July 2013 (ECLI:NL:HR:2013:BZ3640[2]), the Supreme Court [Civil Division] considered the following:

‘3.5 In the examination of the plea [in the appeal on points of law], it ought to be considered at the outset that, pursuant to section 47 [of the Act], a taxpayer is obliged to provide the tax inspector with all data and information that may be relevant for taxation in the taxpayer’s case. Since the present claim [namely the State’s application for an order to disclose information] is based on that legal obligation, the starting-point is that the requested provisional measure must be given. Article 6 of the European Convention on Human Rights (ECHR) does not preclude this (see [Allen v. the United Kingdom (dec.), no. 76574/01, ECHR 2002‑VIII] and [Marttinen v. Finland, no. 19235/03, § 68, 21 April 2009]). The plea raises the question whether, and if so to what extent, this starting-point should be abandoned in connection with the possibility that, if the application [for a provisional measure] were granted, [the applicant] might be coerced into cooperating, in a manner contrary to Article 6 ECHR, in the gathering of evidence for the purpose of the imposition of a tax fine or institution of a criminal prosecution, and that if he refused to comply with the order issued in these interim proceedings, he would liable to (substantial) penalty payments.

3.6. In [Saunders, cited above] the European Court of Human Rights (ECtHR) held that the prohibition of forced self-incrimination is connected with the right to remain silent, which means that this prohibition does not extend to the use in criminal proceedings of evidence that, although obtained by means of coercion, has an existence independent of the will of the accused (hereinafter: will‑independent material). It does not appear from the ECtHR’s later case-law that this view has been abandoned. This means that obtaining will‑independent material by means of an order given in interim proceedings does not constitute a violation of Article 6 ECHR, even if that order is accompanied by penalty payments.

3.7. In so far as it concerns evidential material the existence of which is dependent on the will of the taxpayer (hereafter: will-dependent material), the following applies. The principle is that the surrender of such material may be coerced for the purpose of levying tax. If it cannot be excluded that the material will also be used in connection with a “criminal charge” (compare [J.B. v. Switzerland, cited above]), the domestic authorities will have to ensure that the taxpayer will be able to exercise effectively his right not to cooperate in self-incrimination. Since regulation directed to this end is lacking in the Netherlands, it is for the courts to provide the necessary guarantees.’

4.10. The tax inspector’s letter of 7 March 2007 is based on section 47 of [the Act]. Having regard to the judgment [of the Supreme Court] cited in 4.9, Article 6 ECHR does not preclude the obligation to provide the tax inspector with all data and information that may be relevant to the taxation of the taxpayer concerned.

4.11. As regards the fines ... it is, according to the above-mentioned judgment, relevant whether will-dependent or will-independent material is concerned. In its judgment of 21 March 2008 (ECLI:NL:HR:2008:BA8179), the Supreme Court considered the following on that point:

‘3.3.2. The imposition of ... a fine must meet the requirements set out in Article 6 § 1 ECHR under its criminal head. This includes respect for the accused’s right to remain silent and the right not to incriminate himself or herself (see Saunders [cited above]). In the Saunders judgment, the ECtHR made a distinction between (evidential) material that does and [(evidential) material that] does not owe its existence to the will of the accused. The documents containing data provided to the tax inspector by the person concerned constitute material in the latter sense. Moreover, the documents at issue concern an account in respect of which the person concerned had already, without his involvement, been identified as the account holder and, therefore, are documents the existence of which the inspector was entitled to assume; the documents, which are not directly relevant for the question whether the person concerned has committed the punishable offence, were submitted by that person after the inspector had specified the documents he required. Having regard to the Saunders judgment, Article 6 § 1 ECHR does not preclude that in the framework of assessing whether a fine should be imposed, documents such as those requested by the tax inspector for determining tax liability are taken into account, if these have been provided by the person liable. This is not altered by the fact that some active participation of the taxpayer – consisting, in the case at hand, in the submission of the documents by post – is required (see also Jalloh v. Germany [GC], no. 54810/00, [§ 114,] ECHR 2006‑IX).’

4.12. In view of the judgment [of the Supreme Court] cited at 4.11, the information provided by [the applicant] in or with his letter of 9 December 2008 can be characterised as will-independent material. Indeed, it consists of bank account statements and portfolio summaries. Having regard to the judgment of the Supreme Court cited at 4.9, Article 6 ECHR does not preclude that the information provided by [the applicant] is taken into account in the framework of the tax fines.”

27. The Court of Appeal subsequently found, in paragraphs 4.34 and 4.37 of its judgment, that neither the additional tax assessments nor the fines had been set too high, as the tax inspector had lowered the assessments in view of the data provided by the applicant in his letter of 9 December 2008 and it had not appeared that the tax inspector’s calculations were incorrect. It further held the severity of the fines to be appropriate and necessary. Nevertheless, in view of the length of the proceedings the appellate court reduced the tax fines further to NLG 2,606 (approximately EUR 1,180) as regards the failure to provide the required information for the assessment of income tax and social security contributions, and to NLG 1,543 (approximately EUR 700) for the same issue in relation to the assessment of capital tax; it dismissed the remainder of the appeals.

28. Proceedings before the Supreme Court

29. The applicant lodged an appeal on points of law (cassatie), which is limited to procedural conformity and points of law, with the Tax Division of the Supreme Court. As relevant to the case before the Court, he again invoked the privilege against self-incrimination, relying on Article 6 of the Convention. He cited Funke v. France (25 February 1993, Series A no. 256‑A), J.B. v. Switzerland (cited above), Marttinen (cited above) and Chambaz v. Switzerland (no. 11663/04, 5 April 2012).

30. The Advocate-General’s opinion

31. In his opinion (conclusie) of 19 December 2014, the Advocate-General (Advocaat-Generaal) at the Supreme Court stated, inter alia, that:

“4.4 [The applicant] complains in his first ground of the appeal on points of law about a violation of Article 6 ECHR, on account of being compelled to give information without a guarantee having been given – prior to the request for information – that the information provided would not be used for a possible sanction.

4.5 It must be said at the outset that a taxpayer is obliged under section 47 of the Act to provide the tax inspector with data and information that may be relevant for taxation in the taxpayer’s case. It can be deduced from the Allen and Marttinen cases [both cited above] that Article 6 ECHR does not preclude States from attaching penalties to a taxpayer’s refusal to declare his or her financial situation in the context of taxation. Thus, in ... Allen the ECtHR held:

‘In the present case, therefore, the Court finds that the requirement on the applicant to make a declaration of his assets to the Inland Revenue does not disclose any issue under Article 6 § 1, even though a penalty was attached to a failure to do so. The obligation to make disclosure of income and capital for the purposes of the calculation and assessment of tax is indeed a common feature of the taxation systems of Contracting States and it would be difficult to envisage them functioning effectively without it.’

4.6 In the period allotted for filing a tax return, the opening of the books does not lead to the risk of being sanctioned since the taxpayer thus precisely meets his legal obligations. Failure to make a tax return (in full), or to do so out of time, is punishable, but those fines are not a consequence of having provided the information requested.

4.7 It will become a different matter if the tax inspector, under threat of punishment or a fine, compels the taxpayer to provide information which can lead to the discovery of a (tax) offence committed by the person being questioned. The question then arises whether the coercion used by the tax inspector implies a violation of the nemo tenetur principle.

4.8 In dealing with this first ground, I will first consider the case-law of the ECtHR in respect of the consequences of the use of coercion (punishment or fine) on a (potential) suspect/taxpayer to provide material or give statements and then I will consider some judgments of the Supreme Court on this topic. I will then analyse the case-law of the ECtHR and the Supreme Court and discuss the effect of the use of material obtained under coercion. Lastly, I will apply the prior analyses to the present case.”

30. After taking note of the Court’s considerations in Funke (cited above, § 44), Saunders (cited above, §§ 68-69), Choudhary v. the United Kingdom ((dec.), no. 40084/98, 4 May 1999), J.B. v. Switzerland (cited above, §§ 65‑66, 68 and 71), O’Halloran and Francis v. the United Kingdom ([GC], nos. 15809/02 and 25624/02, §§ 35, 53 and 58, ECHR 2007‑III), Jalloh (cited above, §§ 110-11, 113, 117 and 123), Marttinen (cited above, §§ 68-69, 71‑73 and 75-76) and Chambaz (cited above, §§ 52-58), as well as several domestic rulings, the Advocate-General made the following considerations:

“4.37 The Saunders judgment makes a distinction between, on the one hand, will-dependent material, in particular statements, that may not be obtained by using methods of cooperation or oppression in defiance of the will of the accused in cases where Article 6 ECHR applies, and, on the other hand, will-independent material, such as bank statements and other existing documents, [the disclosure of] which can in principle always be demanded even with coercion. In view of (at least) the judgments given by the ECtHR up to HR BNB 2008/159 [ruling of 21 March 2008], I endorse the Supreme Court rulings. Among others, the judgments in Funke and J.B. [v. Switzerland] have not been able to convince me that the ECtHR has deviated from Saunders or [that it] intended to say something else with the Saunders judgment. It is true that in Funke and J.B. [v. Switzerland] the ECtHR found a violation of Article 6 ECHR due to the obligation to provide documents, but both cases appear to concern a disguised request to declare which documents the taxpayer actually held. However, since Chambaz, it is in my opinion clear what the ECtHR means or has possibly meant for already some time.

4.38 Summarised briefly, the nemo tenetur principle ... not only concerns giving oral or written statements (thus the coming about of the material) but also the use of methods of coercion or oppression in defiance of the will of the accused when forcibly obtaining already existing (will-independent) material, such as documents.

4.39 In its judgment of 12 July 2013, BNB 2014/101[3], the Supreme Court correctly draws the conclusion from the case-law of the ECtHR that coerced disclosure of material by imposing penalty payments is only allowed when the taxpayer has been given the guarantee that the material requested will not be used for prosecution purposes. Also, in view of the reference to Saunders under 3.6, the Supreme Court seems, as regards the material, to hold on to its distinction previously made on the basis of this judgment between will-dependent and will-independent material. However, according to the ECtHR in Chambaz, a taxpayer must also be given a guarantee concerning the use of will-independent material, at least for documents and other records such as bank statements.

4.40 Not every [form of] coercion breaches Article 6 § 1 ECHR; a low fine or slight pressure is allowed. In my opinion, this does not include penalty payments. The Supreme Court also found this in its judgment of 12 July 2013, BNB 2014/101 but, wrongly, only in respect of will-dependent material in the form of statements. In his annotation of BNB 2014/101, [Mr] Van Eijsden wrote: ‘The nature and extent of coercion of penalty payments are such that it cannot be said that the documents concerned can be obtained independently of the will of the taxpayer’. I agree with him.

4.41 For the time being, I see no reason to ignore Chambaz for being a judgment with reasoning tailored to that case alone (‘gelegenheidsarrest’). In addition, Marttinen can be regarded as a (major) precursor to this judgment. Chambaz is the (provisional?) tailpiece of a development restricting the margin for requisitioning will-independent material. What still constituted an exception in Funke and J.B. [v. Switzerland] has now been stated by the Court as a fixed rule in Chambaz. Also, will-independent material that has been obtained through coercion – unless this is very light – cannot be used against the person concerned in a prosecution for tax fraud. To this end, a guarantee must be provided in advance to the person concerned. ...

4.43 In its judgment of 12 July 2013, BNB 2014/101, the Supreme Court ruled (in paragraph 3.9) that will-dependent material provided by a taxpayer on pain of penalty payments may not be used for tax fines or prosecution. If this nevertheless happens, the tax or criminal court must determine what consequence must be attached to that use.

4.44 It has been noted in the literature that this consideration of the Civil Division of the Supreme Court does not guarantee that the tax or criminal court will exclude the evidence, which, according to various authors, is the only correct consequence. ...

4.50 The ECtHR also recently ruled (23 October 2014) in the Furcht v. Germany case [no. 54648/09, 23 October 2014] that evidence obtained by the police by means of incitement (violation of Article 6 ECHR) should be excluded. The ECtHR considered that a mitigation of sentence was not sufficient; according to the ECtHR, any measure short of excluding such evidence is insufficient to afford adequate redress for a breach of Article 6 § 1.

4.51 In view of the above, I consider that exclusion of evidence is the only correct consequence that the tax or criminal court can attach to the use of material provided on pain of penalty payments. In the first place, this applies to the taxpayer who, prior to providing the material, has been given a guarantee from the civil court that the material will not be used for tax fines or prosecution, since the legal protection envisaged by the Civil Division of the Supreme Court would otherwise – in the words of Van Eijsden – ‘be of no value whatsoever’. In my opinion, evidence should also be excluded when the taxpayer was unjustly not given the legal protection to which he was entitled prior to providing the material used. ...

4.56 As follows from sections 4.37-4.42, I am of the opinion that obtaining material by means of coercion through the imposition of penalty payments is only permitted when the taxpayer is given the guarantee that the requested material will not be used for the imposition of tax fines or for criminal prosecution, in which context I do not distinguish between statements and already existing material such as (bank) documents and other papers. In breach of Article 6 ECHR, this guarantee was not provided to [the applicant]. The question is whether this should have consequences.

4.57 I am of the view that it should not in so far as the statements provided by [the applicant] are concerned. In my opinion the Court of Appeal has apparently meant to say in paragraph 4.12 of its judgment [see paragraph 26 above] that that court has not used the statements provided by [the applicant] for its examination of the fine; the tax authorities had indeed made use of only the bank statements and portfolio summaries.

4.58 As regards the other information provided by [the applicant] (bank statements and portfolio summaries), the Court of Appeal held that these could be taken into account in the context of the fines. The fact that the Court of Appeal did indeed have regard to these data follows, in my view, from paragraphs 4.34 and 4.37 of that court’s judgment [see paragraph 27 above] ...

4.59 As follows from paragraphs 4.43‑4.50, I am of the opinion that the consequence of exclusion of evidence must be attached to the use of the material. The case must be remitted to another court of appeal, which must re‑examine the imposition of the tax fines without using all the material provided by [the applicant], on pain of penalty payments, in a letter of 9 December 2008 ...”

2. Judgment of the Supreme Court

3. On 29 May 2015 the Supreme Court gave judgment, dismissing the applicant’s appeal on points of law. As relevant to the case before the Court, its reasoning included the following (domestic case-law references omitted):

“2.3.1. As regards the nemo tenetur principle, the Court of Appeal has ... ruled that the information provided by [the applicant] to the tax inspector pursuant to the judgment of the provisional-measures judge – bank account statements and portfolio summaries – can be regarded as will-independent, and that Article 6 ECHR does not prevent such data from being taken into account in the context of tax fines.

2.3.2. The first ground for the appeal on points of law challenges that finding on the basis of a point of law (rechtsklacht) and on the basis of reasoning. The point of law complaint is that it follows from the ECtHR’s case-law that the nemo tenetur principle also applies to documents the handing over of which implies recognition of their existence, so that the Court of Appeal has failed to appreciate that in this case the question to be answered is not whether the documents handed over by [the applicant] exist independently of his will, but whether those documents can be taken into account in the proceedings irrespective of [the applicant’s] will. The complaint about the reasoning is that the Court of Appeal has not explained why two declarations completed by [the applicant] would be will-independent.

2.3.3. In [Saunders, cited above] the ECtHR held that the prohibition of forced self-incrimination is connected to the right to remain silent, which entails that this prohibition does not extend to the use in criminal proceedings of evidence that, although obtained by compulsion, has an existence independent of the will of the accused. It does not appear from the ECtHR’s subsequent case-law that it has differed in its approach since. This rule has been expanded on in Dutch domestic case-law ...

It would not be reconcilable with the rule set out in Saunders that – as argued by [the applicant] – the nemo tenetur principle extends to all documents, the surrender of which implies recognition of their existence. Such recognition is, after all, implicit in every forced surrender of documents. To accept [the applicant’s] position would accordingly render the distinction made in the Saunders judgment meaningless.

In the case of documents such as those here in issue, namely bank account statements and portfolio summaries drawn up by the bank which relate to accounts of which the taxpayer concerned has already been identified as the holder and the existence of which the tax inspector could thus assume (van welke stukken de inspecteur derhalve het bestaan mag aannemen), it is beyond doubt that they constitute material that exists independently of the will of the person concerned ...

The complaint based on a point of law therefore fails. ...

2.3.5. The finding of the Court of Appeal as summarised above at 2.3.1. is based on the factual finding that the information made available by [the applicant] consists of bank account statements and portfolio summaries. ... [T]his finding is to be understood in the sense that for the decision on the tax fine and for the decision to set the fine at a lower amount, only the bank account statements and portfolio summaries which the bank made available to [the applicant] were of interest. This incorporates the finding that the statements (contained in one or more documents) that [the applicant] has made have not had an independent significance for the decision.

Understood in this manner, the Court of Appeal – contrary to what is assumed in the ground of the appeal on points of law – has not held that the declarations completed by [the applicant] are will-independent. The complaint [about the reasoning] thus lacks a factual basis.”

32. Consequently, the tax fines, as set by the Court of Appeal, remained unaffected.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

1. RELEVANT DOMESTIC LAW AND PRACTICE

   1. General State Taxes Act

2. Section 47 of the General State Taxes Act (“the Act”), as in force as the relevant time, provided as follows:

“1. Everyone is obliged to make available to the tax inspector, when so requested:

a. any data and information that may be of relevance for the levying of taxes upon them;

b. the books, documents and other information-bearing media, or their content – as the tax inspector sees fit – the consultation of which may be of relevance for the determination of facts that may influence the levying of taxes in their regard.

2. If tax law designates matters pertaining to a third party as matters pertaining to the presumed taxpayer (degene die vermoedelijk belastingplichtig is), then in so far as it concerns these matters, the same obligations shall apply to the third party. ...”

3. An additional tax assessment can be imposed within five years after the tax year concerned (section 16(3) of the Act). Where foreign assets are concerned, this period is twelve years (section 16(4) of the Act).

4. Section 18 of the Act, which was in force from 1 January 1994 to 1 January 1998 and applied to additional tax assessments in respect of those years, provided for the imposition of punitive fines. Its first paragraph read:

“The tax imposed by means of an additional tax assessment will be increased by one hundred percent, except where the shortfall in tax levied cannot be explained by any intent or gross negligence on the part of the taxpayer that too little tax was levied.”

2. Regulation on tax fines (1993)

3. In accordance with paragraph 21(3) of the 1993 Regulation on tax fines, in force at the relevant time, the tax inspector would not grant a remission of the statutory fine of 100% in the event of, inter alia, serious or substantial or relatively substantial fraud (ernstige òf omvangrijke òf verhoudingsgewijs omvangrijke fraude), with the word “serious” indicating factors such as cunning (listigheid), falsehood (valsheid) or collusion (samenspanning) and the like.

4. Settled case-law of the Supreme Court

5. The Supreme Court (Tax Division) established that fines based on section 18 of the Act (see paragraph 35 above) should be characterised as a “criminal charge” within the meaning of Article 6 of the Convention (judgment of 19 June 1985, ECLI:HR:1985:AC8934).

6. In a judgment of 12 July 2013 (ECLI:HR:2013:BZ3640; see also Van Weerelt, cited above, § 37, and paragraph 26 above, at point 4.9), which concerned proceedings against an order issued to a taxpayer by a provisional-measures judge to submit, on pain of penalty payments, certain information and material, the Supreme Court (Civil Division – civiele kamer) held that in so far as evidential material was concerned – the existence of which was dependent on the will of the taxpayer – that material should not be used for the purpose of imposing a tax fine or initiating a criminal prosecution. If such use was nevertheless made, it was for the tax court which examined the tax fine or the criminal court examining the charge to determine the consequences. The Supreme Court did not, however, exclude the use, for the purpose of imposing a tax fine or initiating a criminal prosecution, of material which existed independently of the will of the taxpayer.

7. According to the settled case-law of the Supreme Court (Tax Division) (see the case-law references in paragraphs 24, 26 and 30 above), its understanding of the Court’s Saunders judgment (cited above) and subsequent case-law is that bank statements have an existence that is independent of the will of the account holder. On that point it held in a judgment of 24 April 2015 (ECLI:NL:HR:2015:1117) as follows:

“4.4.2. The second part [of the cassation complaint] is directed against the Court of Appeal’s finding that the documents demanded by the State, in particular bank statements, are in the given circumstances to be regarded as will-dependent material. This [complaint] succeeds. The [Supreme Court] judgment of 12 July 2013 [ECLI:NL:HR:2013:BZ3640], at [point] 3.6, defines, with reference to the Saunders judgment, ‘will-independent material’ as ‘material that has been obtained through compulsion, but that exists independently of the will of the accused’. It follows that the qualification of material as either ‘will-independent’ or ‘will-dependent’ – which distinction is related to the right of the person concerned to remain silent – is connected to the nature of the material (whether it physically ‘exists’ independently of the will of the person concerned).

The Court of Appeal incorrectly links the will-(in)dependence to the answer to the question whether the demanded documents could be obtained without the cooperation of the person concerned. This link renders the distinction made in the judgment of 12 July 2013 and in the Saunders judgment meaningless, since the surrender of documents on the basis of an order in interim proceedings can never take place without the cooperation of the person concerned.”

2. EUROPEAN UNION LAW

3. In its judgment of 18 October 1989 in Orkem v. Commission (C‑374/87, EU:C:1989:387) 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 – “the CJEU”) examined the powers of the Commission to obtain information from an undertaking[4] 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.”

36. The EU courts have confirmed this case-law on many occasions, whilst also acknowledging the relevant developments in the case-law of this Court (following the Orkem judgment). Thus, the CJEC referred, for example, to Funke, Saunders and J.B. v. Switzerland (all cited above) in its ruling of 15 October 2002 in Limburgse Vinyl Maatschappij and Others v. Commission (Joined Cases C-238/99 P, C‑244/99 P, C-245/99 P, C‑247/99 P, C-250/99 P to C-252/99 P and C‑254/99 P, EU:C:2002:582, § 274) and held that, for the privilege against self-incrimination to apply, “both the Orkem judgment and the recent case‑law 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” (ibid., § 275). In that 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 (ibid., § 273).

On 28 April 2010 the General Court 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 judgment of 28 April 2010 in Amann & Söhne and Cousin Filterie v. Commission, T‑446/05, EU:T:2010:165, §§ 326 and 328-29).

The Orkem case-law was most recently confirmed and clarified by the CJEU in its judgment of 28 January 2021 in Qualcomm and Qualcomm Europe v. Commission (C‑466/19 P, EU:C:2021:76). It found that in so far as the case-law arising from Amann & Söhne and Cousin Filterie v. Commission (cited above) 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 conversely 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 (Qualcomm and Qualcomm Europe v. Commission, cited above, § 146). 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 (ibid., § 147).

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 (judgment of 2 February 2021 in Consob, C‑481/19, EU:C:2021:84). With reference to this Court’s judgments in Saunders (cited above) and Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, 13 September 2016), the CJEU held that the “right to silence” would be infringed where a suspect was obliged to testify under threat of sanctions and either testified in consequence or was sanctioned for refusing to testify (see Consob, § 39). It considered that the “right to silence” could not be confined to statements of admission of wrongdoing or to remarks which directly incriminated the person questioned, but that it also covered information on questions of fact which might subsequently be used in support of the prosecution and might thus have a bearing on the conviction or the penalty imposed on that person (ibid., § 40). The CJEU specified that its case-law concerning the obligation for undertakings, in the framework of proceedings which might lead to the imposition of sanctions for infringements of EU competition rules, to provide information which might be used to establish the existence of anti-competitive conduct (such as Orkem, see paragraph 40 above) could not be applied by analogy in the determination of the scope of the “right to silence” of natural persons who were the subject of proceedings brought for an offence of insider dealing (see Consob, §§ 46 and 48).

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 breach of the privilege against self-incrimination. Article 6 § 1 of the Convention reads:

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

44. The Government contested that argument.

45. Admissibility

    1. As regards the bank statements and portfolio summaries in respect of 1995

46. The Court notes at the outset that the documents made available by the applicant after the interim proceedings consisted of, inter alia, bank statements and portfolio summaries relating to a bank account that he and his wife held in Luxembourg (see paragraph 19 above). In so far as those statements and summaries related to 1995, the tax inspector used them to assess the actual – rather than an estimated – amount owed in income tax and in social security contributions in respect of that year and to recalculate the corresponding tax fine (see paragraphs 20, 26, at point 4.12, 30, at point 4.57, and 31, at point 2.3.5., above). However, since the order issued in the interim proceedings was only for the disclosure of information on bank accounts held abroad after 31 December 1995 (see paragraphs 17-18 above), it cannot be said that the tax fine imposed in respect of the tax year 1995 was based on evidence that had been provided by the applicant under coercion.

47. It follows that, to the extent that the applicant’s complaint of a breach of the privilege against self-incrimination concerns the fine of approximately EUR 1,180 (see paragraph 27 above) imposed in respect of the tax year 1995, it must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

48. Applicability of Article 6 of the Convention

49. The Court notes that it is not in dispute between the parties that, in so far as the proceedings at issue concerned a tax fine, they fall within the scope of Article 6 of the Convention under its criminal head. In the light of its findings in Jussila v. Finland ([GC], no. 73053/01, §§ 29-38 and 45, ECHR 2006‑XIV), and having regard to the characterisation of the tax fine imposed on the applicant under domestic law (see paragraph 37 above), the Court sees no reason to conclude otherwise. In this respect it is observed that the determination of the “criminal charge” against the applicant had become final through the judicial rulings on his appeals against the (recalculation of the) tax fine that was allegedly grounded on information coerced from him (contrast Van Weerelt v. the Netherlands (dec.), no. 784/14, §§ 62 and 66, 16 June 2015).

50. However, as set out in paragraphs 55-59 below, the parties are divided as to whether the case falls within the scope of the privilege against self-incrimination, which privilege lies at the heart of the concept of a fair trial under Article 6 of the Convention (see paragraph 63 below). The Court observes that this issue is closely connected to the merits of the applicant’s complaint. Consequently, the Court considers that it would be more appropriate to examine these arguments in the context of an examination of the merits of the case.

51. Objection based on a lack of significant disadvantage

52. Article 35 § 3 (b) of the Convention, as amended by Article 5 of Protocol No. 15 to the Convention[5], provides:

“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

...

(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits.”

50. The Government argued that the applicant had not suffered any significant disadvantage, as required by Article 35 § 3 (b) of the Convention. In that respect they noted that the material obtained from the applicant pursuant to the order of the provisional-measures judge of 27 November 2008 (see paragraph 18 above) had actually resulted in a reduction in the additional tax assessments issued and the tax fines imposed on the applicant, as the tax inspector had adjusted both amounts downwards. The Government further noted that the applicant’s complaint of a breach of the privilege against self‑incrimination had been duly considered by both the Court of Appeal and the Supreme Court. The Government therefore contended that the application should be rejected on that ground in accordance with Article 35 § 3 (b) of the Convention.

51. The applicant argued in reply that, although the tax fines at issue had indeed been reduced owing to the information which he had been forced to provide about his bank account in Luxembourg and on account of the length of the proceedings, he had still had to pay NLG 4,149 (approximately EUR 1,900) for the two tax fines put together, which, both relatively and absolutely, remained in his view a considerable sum. In his opinion, the compelled cooperation had not led to an advantage, but to a less severe disadvantage. He further submitted, referring to the different views expressed in domestic legal practice on the interpretation of the case-law of the Court relating to material the existence of which is dependent or not dependent on the will of the person concerned, that his complaint concerned a fundamental dispute of great importance for the legal protection of Dutch citizens.

52. The Court refers to the principles established in its case-law regarding the notion of “significant disadvantage” (see Sylka v. Poland (dec.), no. 19219/07, § 27, 3 June 2014). It observes that, although the amount of the tax fine imposed in respect of the tax year 1996 was reduced after the applicant, on the basis of the judicial order of 27 November 2008 (see paragraph 18 above), had made available the material requested by the tax authorities, he remained liable to pay the fine imposed for his failure to comply in good time with his duty under section 47 of the Act. In addition, account should be taken of the fact that the question whether or not the punitive fine was imposed in breach of the privilege against self-incrimination constituted an issue of principle for the applicant (see, mutatis mutandis, Konstantin Stefanov v. Bulgaria, no. 35399/05, § 46, 27 October 2015). The issue also falls to be considered from an objective point of view, given the importance which the Court’s case-law attaches to the right to remain silent and the right not to incriminate oneself (see paragraph 63 below).

53. Having regard to the foregoing and the particular circumstances of the case, the Court is of the opinion that, whether or not the applicant suffered a significant disadvantage, respect for human rights within the meaning of Article 35 § 3 (b) of the Convention requires that the examination of the application be continued. In that context, it observes that the case brought to the Court by the applicant concerns a question of interpretation of the Court’s case-law. A ruling of the Court on this issue will provide national courts with guidance as to the applicability and scope of the privilege against self-incrimination (see, mutatis mutandis, Nicoleta Gheorghe v. Romania, no. 23470/05, § 24, 3 April 2012). That being the case, the Court concludes that respect for human rights as defined in the Convention and the Protocols thereto requires an examination of this part of the application on the merits.

54. Overall conclusion as to admissibility

55. The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

56. Merits

    1. The parties’ submissions

(a) The applicant

55. The applicant maintained that, in breach of the privilege against self-incrimination, use had been made, in tax proceedings in which fines had been imposed on him, of documents which he had been ordered, by judgment, to provide under threat of penalty payments and without having been given a guarantee that the requisite material would only be used for the purpose of levying tax. In his opinion, relying on the Court’s rulings in J.B. v. Switzerland (no. 31827/96, ECHR 2001‑III), Chambaz v. Switzerland (no. 11663/04, 5 April 2012), Marttinen v. Finland (no. 19235/03, 21 April 2009) and Van Weerelt (cited above), the privilege against self-incrimination was not limited to refusing to testify during a hearing but also included a guarantee against the use of methods of coercion or oppression to obtain evidence in defiance of the will of the accused, including where it concerned potentially incriminating documents or other so-called pre-existing evidence.

56. With reference to Choudhary v. the United Kingdom ((dec.), no. 40084/98, 4 May 1999), the applicant further argued that a pre-existing document was not evidence that existed independently of the will of the suspect if the prosecution authorities would not have been able to take cognisance of it without coercing the suspect, and it was, moreover, clear from the Court’s considerations in J.B. v. Switzerland and Chambaz (both cited above) that the materials requested from him were covered by the privilege against self-incrimination and that the exception for evidence whose existence was not dependent on the will of the applicant did not apply.

(b) The Government

57. According to the Government, when considering whether Article 6 had been violated, the Supreme Court had correctly and in line with the Court’s case-law (see Van Weerelt, cited above, § 55, with further references) drawn a distinction between evidential material, obtained through methods of coercion, having an existence independent of the taxpayer’s will; and evidential material, whose existence depended on the will of the taxpayer.

58. Part of the rationale behind the privilege against self-incrimination was that statements made under duress could be influenced, thus rendering such evidence unreliable, whereas miscarriages of justice had to be prevented. This applied to a far lesser extent to cases where the reliability of the evidence was not at issue and where there was therefore no risk of a miscarriage of justice. For this reason the accused might be compelled to a certain degree to cooperate in the production of objective evidential material, that is to say material whose existence was not dependent on the taxpayer’s will. According to the Government, the documents at issue in the present case fell into that category. The requested bank statements and portfolio summaries constituted information that was objective in nature and the risk of the evidential material being unreliable was small. Referring to the Court’s considerations in Saunders v. the United Kingdom (17 December 1996, Reports 1996‑VI) – which had been built on by the Dutch domestic courts and which, according to the Government, had not been abandoned by the Court in subsequent case‑law – and the Court’s findings in Jalloh v. Germany ([GC], no. 54810/00, §§ 100-02, ECHR 2006‑IX), the Government were of the opinion that the coercion exercised in this case had not been in violation of Article 6 of the Convention.

59. The Government lastly pointed out that in the present case the actual existence of the evidence was already known to the tax inspector in that information about the existence of the bank account had, after all, been obtained from the Belgian authorities. This meant that, in contrast to the situation in Funke v. France (25 February 1993, Series A no. 256‑A) and J.B. v. Switzerland (cited above), there was no question of a “fishing expedition” in the case at hand.

60. The Court’s assessment

(a) 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 (see O’Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, § 53, ECHR 2007‑III). The Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see, among many other authorities, Beuze v. Belgium [GC], no. 71409/10, § 120, 9 November 2018).

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 (see, inter alia, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 251, 13 September 2016, and Beuze, cited above, §§ 121-22).

62. The Court has found that cases concerning tax reassessments – 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 (see Jussila, cited above, § 43; Segame SA v. France, no. 4837/06, § 59, ECHR 2012; Chap Ltd v. Armenia, no. 15485/09, §§ 41 and 44, 4 May 2017; and, in the context of a complaint under Article 4 of Protocol No. 7, A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 133, 15 November 2016).

(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 concept 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 (see Ibrahim and Others, cited above, § 266).

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 held as follows in its judgment in Ibrahim and Others (cited above, § 267, with further references):

“... 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 (see, for example, Serves v. France, 20 October 1997, § 47, Reports 1997-VI, and Bykov v. Russia [GC], no. 4378/02, § 102, 10 March 2009). 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 (see Weh v. Austria, no. 38544/97, §§ 42-43, 8 April 2004; see also Wanner v. Germany (dec.), no. 26892/12, § 24, 23 October 2018).

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 (see Saunders, cited above, § 68).

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 (see Saunders, cited above, § 69; Kalnėnienė v. Belgium, no. 40233/07, § 52, 31 January 2017; Sršen v. Croatia (dec.), no. 30305/13, § 44, 22 January 2019; and El Khalloufi v. the Netherlands (dec.), no. 37164/17, §§ 38-40, 26 November 2019). However, where such evidence has been obtained by a measure which breaches Article 3, the privilege against self-incrimination remains applicable (see also Jalloh, cited above, §§ 105, 108 and 115-16).

68. In cases where the privilege against self-incrimination is applicable (ibid., §§ 110‑13), the Court has held – noting that the right not to incriminate oneself is not absolute (see Heaney and McGuinness v. Ireland, no. 34720/97, § 47, ECHR 2000‑XII; Weh, cited above, § 46; and O’Halloran and Francis, cited above, § 53) – that the degree of compulsion applied will be incompatible with Article 6 where it destroys the very essence of the privilege (see John Murray v. the United Kingdom, 8 February 1996, § 49, Reports 1996‑I). 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 (see, for instance, Allan v. the United Kingdom, no. 48539/99, § 44, ECHR 2002‑IX; Jalloh, cited above, § 101; and Ibrahim and Others, cited above, § 269).

(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 (cited above) 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 that 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 (ibid., § 44).

71. In J.B. v. Switzerland (cited above), the tax authorities – having noted that the applicant had made investments with a certain 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” (ibid., § 65). 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 relevant 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” (ibid., § 69). 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 ((dec.), no. 76574/01, ECHR 2002‑VIII), the Court held that the requirement on the applicant to make a declaration of his assets to the Inland Revenue 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 (cited above) 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 rather for the offence of making a false declaration of his assets, which was an offence in itself. The Court held that the privilege did 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 was a common feature of the tax systems of member States and that it would be difficult to envisage them functioning effectively without it. The Court noted that “[t]he privilege against self-incrimination cannot be interpreted as giving a general immunity to actions motivated by the desire to evade investigation by the revenue authorities”. The Court followed the Allen approach in King v. the United Kingdom ((dec.), no. 13881/02, 8 April 2003), which also raised the issue of a penalty on the applicant for making an inadequate tax return.

73. In Chambaz (cited above) two fines were imposed on the applicant for his refusal to comply with a request from the Swiss tax 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 owing 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 (ibid., §§ 53‑54). Even though, when reiterating the general principles (ibid., § 52), it made reference to Saunders (cited above, §§ 68‑69), the Court did not refer to the distinction made in that judgment between material the existence of which was dependent on the will of the person concerned, such as replies to questions put, and material, such as pre-existing documents, that existed 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 first be some form of coercion or compulsion exerted on the person concerned. Second, either that person must be facing 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 must be 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 (see, for instance, Eklund v. Finland (dec.), no. 56936/13, § 51, 8 December 2015).

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 can be seen from the Court’s case‑law, 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 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 (see paragraph 67 above).

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 (see paragraphs 69-73 above) that such use does not fall within the scope of protection of the privilege against self‑incrimination 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 that where the authorities attempt to compel an individual to provide 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 (see Funke, § 44, and J.B. v. Switzerland, § 69, both cited above). The Court has described such a situation 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 (see paragraph 66), it is incumbent on the prosecution in a criminal case to prove their case without recourse 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 real 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 (see paragraph 67 above).

78. If the prerequisites for the applicability of the privilege against self‑incrimination are met (see paragraph 74 above), and the use of evidence obtained through coercion or compulsion does fall within the scope of protection of that privilege (see paragraphs 75-76 above), 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 threat of penalty payments certain documents to the domestic tax authorities which had been used in tax proceedings in which fines had been imposed on him (see paragraph 55 above). 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 (see paragraph 56 above).

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 (see paragraph 19 above).

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 imposing or recalculating a tax fine such as the one at issue (see paragraphs 21, 24, 27 and 35 above). Indeed, the Supreme Court explicitly stated that no use had been made of the forms for the imposition of the tax fine (see paragraph 31 above, point 2.3.5.). 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 a 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 (see paragraph 18 above), 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 (see paragraph 13 above). Secondly, it observes that although, strictly speaking, it might be true that the order of the provisional-measures judge did not relate to the additional capital tax assessment 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 pending the outcome of the interim proceedings (see paragraph 20 above). This adjournment enabled the tax inspector subsequently to make use, in the decision on the objection lodged by the applicant against the additional tax assessment and accompanying fine in respect of 1996 (see paragraph 13 above), 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 (see paragraph 47), 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. Furthermore, the bank statements and portfolio summaries that were used for recalculating 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 (see paragraph 18 above). 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 (see Phillips v. the United Kingdom, no. 41087/98, § 39, ECHR 2001‑VII, and Aleksandr Dementyev v. Russia, no. 43095/05, § 23, 28 November 2013). As such, the two prerequisites for applicability of the privilege against self‑incrimination have been met (see paragraph 74 above).

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 (see paragraphs 75‑76 above).

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 (see paragraphs 6 and 12 above). It can therefore not be said that the authorities were engaging in a “fishing expedition” when they instituted interim proceedings in order for the provisional-measures judge to order the applicant to submit certain documents in relation to that account (see paragraph 17 above). The order subsequently issued by the provisional-measures judge, moreover, specifically indicated what documents the applicant was to supply (see paragraph 18 above). The present case can thus be distinguished from those of J.B. v. Switzerland (where the applicant was to provide all documents which he had concerning certain companies – see paragraph 71 above) 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 – see paragraph 73 above). Lastly, the imposition of penalty payments which the applicant would incur if he failed to comply with the order of the provisional-measures judge (see paragraph 18 above) cannot be considered to amount to treatment in breach of Article 3 of the Convention (see paragraph 77 above).

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 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, owing to the use of the above-mentioned 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.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the tax fine imposed in respect of the tax year 1996 admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 4 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Ilse Freiwirth Gabriele Kucsko-Stadlmayer
Deputy Registrar President

[1] “Nemo tenetur se ipsum accusare” – the privilege against self-incrimination.

[2] See Van Weerelt v. the Netherlands (dec.), no. 784/14, § 37, 16 June 2015.

[3] For more on this judgment, see Van Weerelt, cited above, § 37.

[4] In the field of EU competition law, the concept of “undertaking” covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. Any activity consisting in offering goods or services on a given market is an economic activity.

[5] See Article 8 § 4 of Protocol No. 15 and paragraph 24 of the Explanatory Report to Protocol No. 15.