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1. The author of the
communication is Constant Joseph Francois van Marcke, a Belgian citizen,
born on 1 March 1928. He claims to be a victim of violations by Belgium of
article 14, paragraphs 1 and 3(g), of the Covenant. He is represented by
Dauginet & Co, a law firm in Antwerp.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 In July 1988, a former employee filed a complaint against the author,
who was the managing director of N.V. Interprovinciale stoombootdiensten
Flandria, a shipping company, for fiscal fraud and evasion of income tax. As
a result, the Public Prosecutor ordered a preliminary enquiry. Later, on 22
June 1989, the Public Prosecutor ordered the collection of information from
the Tax Control Office. The information collected from the Tax Control
Office was reflected in police protocol No. 17.375 of 17 November 1989. In
the protocol, mention was made of a conversation with a tax officer, who had
inquired into the taxes paid by the company in 1987 and 1988, and whose
report was annexed to the protocol. According to the author, this was done
in violation of article 350 of the Income Tax Code in force at the time,
which provided that tax officials could only be heard as witnesses in
criminal matters and which prohibited their active participation in a
criminal inquiry.. On 26 February 1990, the same tax officer reported to the
Public Prosecutor breaches of the tax code committed by officers in the
company.
2.2 On 18 June 1990, after completing the preliminary inquiry, the Public
Prosecutor laid charges of forgery and fraud against the author and several
co-accused. On 19 June 1990, the author was arrested and questioned by the
police. According to the author, the Prosecution was waiting for the outcome
of the investigation by the Tax Control Office into the tax payments of the
company. The Tax Control Office's report was sent to the Judge in charge of
the case on 1 April 1992. The case against the author was then referred for
trial at the Court of First Instance in Antwerp.
2.3 By judgement of 30 June 1995, the author was convicted of forgery and
fraud. On 28 June 1996, the Court of Appeal confirmed the judgement of first
instance and sentenced him to a suspended sentence of two years'
imprisonment and a fine of 500,000 BEF.
2.4 In its judgement, the Court of Appeal rejected the author's request that
the criminal proceedings for fiscal fraud be declared inadmissible or
subsidiarily that the tax inspector's 1989 report be removed from the
criminal file. It confirmed the finding of the Court of First Instance that
the penal inquiry was not initiated because of that report but because of a
complaint filed by a former employee. Since the elements of fiscal fraud had
been notified to the prosecutor before the tax control report was
communicated to him, the Court found that there was no reason to declare the
criminal proceedings inadmissible or to remove the report from the file. The
Court also rejected the other claims made by the author in relation to
alleged violations of the right to fair trial as non-substantiated. In
particular, the Court rejected the claim that the tax-inspector had been
involved in the criminal inquiry in any way and concluded that the
cooperation of the tax officials with the penal inquiry had in no way
violated the author's rights.
2.5 On 15 April 1997, the Court of Cassation rejected the author's further
appeal. With this, all domestic remedies are said to have been exhausted.
2.6 The author petitioned the European Commission of Human Rights. On 19
January 1998, the Commission rejected the author's application as
inadmissible.
THE COMPLAINT
3.1 The author claims that he is a victim of a violation of article 14,
paragraph 1, of the Covenant, because of irregularities in the preliminary
enquiry: the author alleges that the Prosecution relied on an investigation
conducted by the tax inspector in violation of article 350 of the Income Tax
Code in force at the time, which provided that tax officials could only be
heard as witnesses in criminal matters and which prohibited their active
participation in a criminal inquiry. According to the author, the judicial
authorities waited for the outcome of the investigation conducted by the
inspector of the Tax Control Office before bringing him to trial, and the
information provided by the tax inspector was used in the preliminary
inquiry against him and formed the main basis for his conviction.
Consequently, the author claims that the preliminary inquiry and the trial
against him were not impartial, in violation of article 14, paragraph 1, of
the Covenant. With regard to the finding of the court that the tax inspector
had not been involved in the criminal inquiry the author argues that
nevertheless there was an appearance of partiality which in itself
constitutes a violation of article 14 (1). Moreover, the author alleges that
the participation of the tax inspector in the preliminary inquiry against
him violated the confidentiality of the preliminary inquiry.
3.2 Further, the author argues that his right to equal access to information
has been violated, because the Court of Appeal refused to have the fiscal
file added to the criminal file, although the results of the judicial
inquiry were based on or had originated in the conclusions of the fiscal
inquiry. The author claims that the Public Prosecutor had access to the
fiscal file for information, and that he decided on that basis which
investigation to order to obtain evidence against the author. The author
acknowledges that he had access to the fiscal file during the fiscal inquiry
against him, but argues that norms of fair trial require that the Court also
should have had full access to all information used by the Prosecution.
3.3 Finally, the author claims that his right to remain silent as protected
by article 14, paragraph 3(g) was violated. He explains that as a tax payer
he had the obligation to provide correct information on his fiscal situation
during the tax control inquiry which took place after the criminal complaint
had already been filed against him. He was obliged to provide an answer to
all questions asked by the tax administration at the risk of incriminating
himself. If he would have refused to cooperate, he would have been subject
to fiscal or penal sanctions. Consequently, the author cooperated fully with
the tax authorities and provided information. The author states that "even
though the results of this fiscal inquiry were not directly used as evidence
in the criminal proceedings against the defendant, the results of this
obligation to cooperate have contributed at least indirectly to the
petitioner's conviction." The author argues that this constitutes a breach
of his right to remain silent, as the use of his formal right to remain
silent during the criminal proceedings had become illusory because of the
information he had earlier provided to the tax authorities and since the tax
inspector's report was used in the preliminary inquiry against him. In this
context, the author refers to the ECHR judgement in the Saunder case (17
December 1996).
THE STATE PARTY'S SUBMISSION ON ADMISSIBILITY AND MERITS
4.1 By submission of 5 December 2000, the State party refers to the decision
by the European Commission of Human Rights, dated 19 January 1998, declaring
the author's petition inadmissible on the basis that there was no appearance
of a violation. The State party emphasizes that the European Commission
entered into the merits of the author's complaint and did not reject it for
procedural reasons or ratione materiae. In particular, the State party
states that the jurisprudence of the European system shows that the right to
fair trial includes the right to remain silent, and that the rights applied
by the European Commission are thus the same as those contained in the
Covenant. The State party argues therefore that since the same matter has
already been examined by the European Commission on Human Rights, the
communication is inadmissible under article 5, paragraph 2(a) of the
Optional Protocol.
4.2 The State party further refers to the Committee's jurisprudence on the
matter of exhaustion of domestic remedies, according to which the author
should raise the substance of his complaint before the domestic instances.
In this context, the State party notes that in his cassation appeal the
author did not raise the question of violation of article 14 of the
Covenant. The State party refers to the grounds of cassation introduced on
behalf of the author, which refer to article 6, paragraph 1, of the European
Convention on Human Rights and article 149 of the Constitution (obligation
to provide reasoning for judgements). The State party argues therefore that
the claims raised in the present communication were not brought before the
domestic courts and that the communication should therefore be inadmissible
under article 5, paragraph 2(b), of the Optional Protocol.
4.3 On the merits, the State party states that the file shows that the
author's right under article 14, paragraph 1, to a public hearing by a
competent, independent and impartial tribunal established by law, has been
fully guaranteed. In respect of the author's allegation that article 350 of
the Income Tax Code was violated, the State party argues that it is for the
domestic courts to interpret the national laws and to review their
application, and that the Committee is not competent to decide on a possible
violation of domestic law which is not also a violation of the Covenant. In
this context, the State party notes that the right to a confidential
preliminary investigation is not included in article 14 of the Covenant nor
in article 6 of the European Convention.
4.4 Concerning the author's claim that he did not have a fair trial, the
State party refers to the findings of the European Commission in the
author's case, which considered that the author had had full opportunity to
present all his arguments before the domestic courts, in particular
concerning the alleged active participation of the tax inspector. In the
opinion of the European Commission, the fact that the author disagrees with
the court's conclusions in this respect does not in itself show that the
trial against him was unfair. The State party fully shares the views
expressed by the European Commission.
AUTHOR'S COMMENTS
5.1 By letter of 14 June 2001, the author comments on the State party's
observations in respect of the admissibility of the communication. In reply
to the State party's argument that the communication is inadmissible under
article 5, paragraph 2(a), of the Optional Protocol, the author points out
that the European Commission of Human Rights rejected his application by
decision of 19 January 1998 and that the matter is thus no longer being
examined under another procedure of international investigation or
settlement. He further notes that the State party has entered no reservation
to exclude the Committee's competence in matters that already have been
decided by another such procedure. The author concludes therefore that his
communication is admissible.
5.2 In reply to the State party's argument that the communication is
inadmissible because of non-exhaustion of domestic remedies, the author
argues that he raised before the courts the substantive rights protected by
article 14 of the Covenant, and that he has exhausted all available remedies
in this respect. He refers to the Committee's jurisprudence, according to
which a petitioner should raise the substantive rights protected by the
Covenant but need not do so by reference to specific articles of the
Covenant. He concludes therefore that he has fulfilled the admissibility
requirement of article 5, paragraph 2(b), of the Optional Protocol.
5.3 By letter of 28 June 2001, the author provides comments on the State
party's observations on the merits of his communication. With respect to the
State party's argument that the Committee is not in a position to review the
interpretation and application of domestic law, the author argues that he
has invoked article 350 of the Tax Code to argue that the cooperation of the
tax inspector in the criminal procedure created at least an impression of
active participation leading to a violation of his right to an impartial and
fair hearing. The author further states that the Court of Cassation has
based its judgement in his case solely on the interpretation of domestic law
and has not tested the interpretation against international norms of fair
trial. He argues that it is up to the Committee to decide whether the
domestic authorities acted in compliance with the Covenant in this respect.
THE COMMITTEE'S ADMISSIBILITY CONSIDERATIONS
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant.
6.2 The Committee has noted the State's party's objection to the
admissibility of the communication under article 5, paragraph 2(a) of the
Optional Protocol. The Committee observes in this respect that the author's
application to the European Commission of Human Rights concerning the same
matter was declared inadmissible by the Commission on 19 January 1998 and is
thus no longer being examined. In the absence of a reservation by the State
party which would exclude the Committee's competence to consider
communications that have already been examined by another procedure of
international investigation or settlement, the Committee concludes that
there is no obstacle to the admissibility of the communication under article
5, paragraph 2(a) of the Optional Protocol.
6.3 The Committee has also noted the State party's objection to the
admissibility of the communication for failure to exhaust domestic remedies
because the author failed to invoke article 14 of the Covenant before the
domestic courts. In this context, the Committee recalls its jurisprudence
that for purposes of the Optional Protocol, the author of the communication
must raise the substantive rights of the Covenant before the domestic
instances, but need not refer to the specific articles.
6.4 The Committee notes that the author did not raise the issue of the
alleged violation of his right to remain silent in his domestic appeals.
This part of the communication relating to an alleged violation of article
14, paragraph 3(g) is therefore inadmissible under article 5, paragraph 2(b)
of the Optional Protocol.
6.5 Noting that the author argued his domestic appeal on the basis of an
alleged violation of his right to be heard by an impartial and independent
tribunal and on an alleged violation of his right to equal access to
information, the Committee considers that the author has exhausted domestic
remedies in respect of these remaining claims.
7. The Committee therefore decides that the communication is admissible in
so far as it raises issues under article 14, paragraph 1, of the Covenant.
THE COMMITTEE'S CONSIDERATION OF THE MERITS
8.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1 of the Optional Protocol.
8.2 With regard to the author's allegation that the tax inspector
participated actively in the preliminary inquiry and that his reports were
used in the criminal case against him, in violation of article 14, paragraph
1 of the Covenant, the Committee notes that the courts rejected the author's
claim in this respect and found on the facts that there was no active
participation of any tax officials in the criminal case. As established by
the Committee's jurisprudence, the Committee is generally not in a position
to review the evaluation of facts by the domestic courts. The information
before the Committee and the arguments advanced by the author do not show
that the Courts' evaluation of the facts was manifestly arbitrary or
amounted to a denial of justice. The author has further argued that the
appearance of bias in itself constitutes a violation of article 14,
paragraph 1, of the Covenant, even if the tax inspector did not participate
actively in the criminal case against him. While acknowledging that in
certain circumstances the appearance of bias may be such as to violate the
right to a fair hearing by an independent and impartial tribunal, the
Committee finds that in the present case the facts do not amount to a
violation of article 14, paragraph 1 of the Covenant.
8.3 With regard to the author's claim that his right to equal access to
information was violated by the courts' refusal to add the fiscal file to
the criminal file, the Committee notes that the Court and the author had
access to all documents used in the criminal case against him, and that the
fiscal file did not constitute the basis of the prosecutor's case before the
courts. The fact that information supplied by the fiscal authorities alerted
the prosecutor to lines of inquiry for independent investigations did not
require that the fiscal file be made part of the prosecution's case.. The
Committee observes that the right to a fair hearing contained in article 14,
paragraph 1, does not in itself require that the prosecution bring before
the court all information it reviewed in preparation of a criminal case,
unless the failure to make the information available to the courts and the
accused would amount to a denial of justice, such as by withholding
exonerating evidence. The Committee notes that the author has made no claim
that anything contained in the fiscal file would have been exculpatory. In
the circumstances of the instant case, the Committee finds that the
information before it does not show that the refusal of the courts to join
the fiscal file to the criminal case hampered the author's right to defence
or otherwise amounted to a violation of his right to fair hearing.
9. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol, is of the view that the facts before it do not disclose a
violation of the International Covenant on Civil and Political Rights.
_______________________________
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.] |
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