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THIRD
SECTION
DECISION
Application no.
18450/07
Murat BINGÖL
against the Netherlands
The
European Court of Human Rights (Third Section), sitting on 20 March
2012 as a Chamber composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Mihai
Poalelungi,
judges,
and Santiago Quesada,
Section Registrar,
Having
regard to the above application lodged on 21 April 2007,
Having
regard to the partial decision on admissibility of 13 October 2009,
Having
regard the observations of the parties,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Murat Bingöl, is a Turkish national who was born
in 1966 and lives in The Hague. He was represented before the Court
initially by Mr N.J.F. Snoek, a lawyer practising in Ulvenhout (later
in Amstelveen), and subsequently by Mr A. Verbruggen, a lawyer
practising in The Hague.
- The
Turkish Government, although informed by the Registrar of their right
under Article 36 § 1 of the Convention to participate in the
proceedings, did not indicate that they wished to do so.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- The
applicant is a businessman with a number of projects in The Hague. In
2001 several of his properties were expropriated to make way for
development projects planned by the municipality (gemeente).
As compensation for the expropriated properties the applicant was
offered the lease of a new building on favourable terms, which he
subsequently indicated would be used as a party centre (partycentrum
– a location in which space is made available for private
social events, usually with the offer of catering) and sports
facility. By letter of 12 December 2001 the municipality notified the
applicant that it was his responsibility to obtain the licences
required.
- At
the end of 2002 the applicant received possession of the party centre
and it was opened for business in the course of 2003. The lease
agreement between the applicant and the municipality was signed in
October 2003. It provided, among other things, that the applicant
must obtain the licences required for his business.
- The
applicant submitted a request for an operating licence
(exploitatievergunning) to the Burgomaster (Burgemeester)
of The Hague on 8 January 2004, after having been reminded by the
municipality.
- As
the applicant had previously been refused a licence under the
Licensing and Catering Act (drank- en horecavergunning) in
2001 for another of his businesses because of criminal convictions
including for employing illegal aliens, the Burgomaster requested
advice pursuant to section 7 § 3 of the Public Administration
(Probity Screening) Act (Wet bevordering integriteitsbeoordelingen
door het openbaar bestuur – referred to hereafter by its
acronym “BIBOB Act”).
- On
2 December 2004 the National Agency for Public Administration Probity
Screening (landelijk bureau bevordering integriteitsbeoordelingen
door het openbaar bestuur – “the BIBOB Agency”)
recorded in its report the foll owing “criminal offences and
suspicious conduct”:
employing foreign
nationals without the requisite work permit;
providing housing to
illegal aliens;
convictions,
settlement penalties (transacties), official reports
(processen verbaal) and notations on incidents
(mutaties) concerning minor hygiene and environment related
offences (overtredingen);
problems with safety
regulations in several buildings the applicant had rented or let;
an unusual
transaction of EUR 5,000 registered in the name of the applicant.
Accordingly
the BIBOB Agency advised the Burgomaster that there was a serious
danger that the applicant would use the requested licence either to
enjoy the proceeds of crime or to commit criminal offences.
- On
22 December 2004 the Burgomaster notified the applicant of his
intention (voornemen) to reject the request for an operating
licence and allowed the applicant to submit written comments
(zienswijze) regarding his proposed decision.
- In
his written comments the applicant explained that he had been
convicted of employing illegal Turkish bakers in his bakery. There
had been no one else available at the time capable of that
traditional work and he would have gone bankrupt had he not employed
them. The problem had been solved since and his last conviction had
been in 2000. He further stated that he had not been aware that
illegal aliens had been living in his houses (especially since some
of the houses were jointly owned by his brother and mother as well as
by himself) and all he had done had been to let or sublet them to
third parties, without any knowledge of who was actually living in
them. The hygiene and environment-related offences had involved such
matters as not using the correct proportion of water in bread dough,
a faulty exhaust and a defective waste disposal system, and had been
caused by inexperienced personnel and concerned very minor offences.
The breaches of the safety regulations had likewise all occurred
several years previously and in the main had concerned minor issues
such as defective wiring caused by persons renting his apartments
trying to install radio and television cables. The allegedly unusual
transaction had in fact concerned an uncle in Turkey who had worked
for him and the money was in respect of pension benefits his uncle
received in the Netherlands. Finally, the applicant submitted that
none of the issues mentioned would arise in the party centre as he
would only be supplying customers with a room to rent and would
therefore not use any personnel of his own as the customers would be
responsible for cleaning the premises.
- On
8 April 2005 the Burgomaster rejected the applicant’s written
comments and refused to grant him an operating licence. He also
ordered the party centre to be closed.
- On
26 April 2005 the applicant lodged an objection (bezwaar)
against the Burgomaster’s decision. In his objection he argued
that his previous convictions for employing illegal aliens had arisen
from an immediate need for Turkish bakers to keep his bakery in
business. As he had already indicated, that problem had now been
solved. Furthermore, any alleged financial benefits he had reaped had
no bearing on the current operation of the party centre. He also
argued that it was unfair to impute to him events such as subletting
to illegal aliens, those being transactions which had taken place in
apartments operated by his brother and the latter’s business
partner Y and about which he had known nothing. Nor, for that matter,
could he have been aware of what his tenants did when he was not
there. Furthermore, the applicant submitted that quite obviously a
party centre would not be used to house illegal aliens.
- On
1 August 2005 the Burgomaster rejected the applicant’s
objection. He considered that, given his history and in accordance
with the BIBOB Act, there was a serious danger that the applicant
would use the requested licence to enjoy the proceeds of crime or to
commit criminal offences. He found that the BIBOB Agency’s
report showed that the applicant had systematically, over a long
period of time, provided housing and work to illegal aliens and
thereby gained financial reward. There were therefore reasonable
grounds to fear that the applicant would use the party centre for the
same purposes.
- On
14 September 2005 the applicant lodged an appeal with the Regional
Court (rechtbank) of The Hague against the Burgomaster’s
decision. He submitted that the provisions of the BIBOB Act violated
Article 6 § 2 of the Convention as his request for an operating
licence had been rejected to a large extent on the basis of facts and
suspicions which had never led to a criminal conviction. In
particular, the applicant argued that although he had never been
convicted of housing illegal aliens, the suggestion that he had done
so had been a weighty factor in the Burgomaster’s decision to
reject his request for a licence. Furthermore, the aliens had been
housed by tenants who had sublet the apartments without his knowledge
and he had put an end to the practice as soon as he had been made
aware of it. He also claimed that he could not be held responsible
for events that had taken place in apartments belonging to his
brother. Finally he submitted that the Burgomaster had also taken
into account anonymous tip-offs from illegal aliens visiting the
party centre even though that information had never led to any
arrest, let alone a conviction.
- On
3 March 2006 the Regional Court dismissed the applicant’s
appeal. It considered that the serious danger referred to by the
BIBOB Agency in its report was based mainly on the commission of
criminal offences and the use of the proceeds of such offences. It
had attached only minor importance to the environmental and safety
related offences. The court therefore considered that it had been
reasonable for the Burgomaster to conclude that the requested licence
would be used by the applicant either to enjoy the proceeds of crime
or to commit criminal offences. It held that in the light of the
BIBOB Agency’s advice there were sufficient reasons to conclude
that the applicant and his brother worked so closely together as to
make it legitimate to hold the applicant accountable for his
brother’s activities. It further found that the illegal aliens
had been present in premises above or next to a building the
applicant owned and frequently visited, so that it was unlikely that
he had been unaware of their presence. The court rejected the
applicant’s argument that these previous events would have no
bearing on the activities for which the applicant required the
licence as it considered that the Burgomaster had rightly assumed
that the licence would simply be used to enable the applicant to
carry on as before. The fact that most of the offences had been
committed some years previously was irrelevant as the applicant had
been a recidivist. Finally the court considered that the provisions
of the BIBOB Act did not violate Article 6 § 2 as they did not
entail any criminal procedure for the purpose of establishing a
person’s guilt of a criminal offence. It had thus been
reasonable for the Burgomaster to refuse the applicant the requested
licence.
- In
accordance with the judgment of the Regional Court, the Burgomaster
notified the applicant on 13 March 2006 that the party centre would
be closed pursuant to his letter of 8 April 2005.
- On
18 April 2006 the applicant lodged an appeal to the final appellate
court: the Administrative Jurisdiction Division of the Council of
State (Afdeling bestuursrechtspraak van de Raad van State;
“the Administrative Jurisdiction Division”). In his
appeal he argued, inter alia, that the refusal of a licence
had a punitive character for the purposes of Article 6 of the
Convention as, even though he had not been convicted of any criminal
offences for a number of years, he had not been allowed to continue
with his business activities. As he had not even been charged with a
number of the offences mentioned in the BIBOB Agency’s and
Burgomaster’s reports, previous events could in practice be
held against him for years to come; accordingly, the provisions of
Article 6, and in particular the presumption of innocence, had, in
his submission, been violated. Specifically, he had not enjoyed any
of the rights of the defence mentioned in Article 6 and had basically
been handed a life-long ban on conducting his business. The applicant
noted that no criminal offences had ever been committed at the party
centre. He further argued that the fact that he had a business
partnership with his brother could not mean that all his brother’s
acts (even those performed outside the partnership) were attributable
to the applicant as well. The applicant also presented further
arguments as to why there could be no serious danger that the
requested licence could lead to his employing illegal aliens as the
entire idea of the party centre was that customers would organise
their own festivities.
- On
22 November 2006 the Administrative Jurisdiction Division rejected
the applicant’s appeal. Its reasoning included the following:
“2.4. [The applicant] also maintains
his statement that the BIBOB Act runs counter to the presumption of
innocence guaranteed by Article 6 § 2 of the Convention ...
2.4.1. The Regional Court has rightly held,
referring to the drafting history [of the BIBOB Act], that Article 6
§ 2 of the Convention only applies to criminal or comparable
proceedings and that the instruments offered by the BIBOB Act fall
outside its scope, already because advice under the BIBOB Act and the
decision which the government body concerned must base, inter
alia, on that do not purport to establish anyone’s guilt of
a criminal offence. According to the standards developed by the
European Court of Human Rights to determine whether there is a
‘criminal charge’ within the meaning of Article 6 of the
Convention the nature of the norm transgressed, the circle of persons
to whom the norm is addressed and the purpose, the nature and the
seriousness of the sanction risked through the transgression. It is
also relevant whether the enforcement of the norm transgressed has
been labelled criminal in domestic law. Application of the ground of
refusal set out in section 3 of the BIBOB Act is intended to prevent
government organs from facilitating criminal activities by
unwittingly and unintentionally issuing licences, providing subsidies
and granting government contracts. Refusal [of a licence] does not
purport to impose suffering in order to encourage behaviour in
conformity with the norm. No punitive sanction is therefore in issue.
It makes no difference in this respect that [the applicant] perceives
the refusal of the licence in this sense. It must be found, as the
Regional Court did, that no criminal charge is in issue and the
presumption of innocence is irrelevant to the case.
In implementing section 3 of the BIBOB Act the
Burgomaster has a responsibility of his own under administrative law,
which is unrelated to the responsibility of the government bodies
charged with prosecution and punishment. ...”
The
Administrative Jurisdiction Division went on to reject the
applicant’s argument that the offences in question had been
committed in the distant past and should have had no bearing on his
request for an operating licence. It also noted the importance of
action to prevent the employment of illegal aliens. The
Administrative Jurisdiction Division noted that the Regional Court
had correctly interpreted the business partnership of the applicant
and his brother as well as the consequences of the partnership for
the applicant. Finally, it concluded that it had been reasonable for
the Burgomaster to conclude that the criminal offences had been
committed in pursuit of activities that could also be exploited if
the licence was issued.
B. Relevant domestic law and practice
- The BIBOB Act entered into force on 1 June 2003.
According to the explanatory memorandum to the Bill (Memorie
van Toelichting; House of Representatives,
no. 26, 883, 1999-2000 session, no. 3), its main purpose is to create
an effective instrument to help administrative bodies avoid
unwittingly facilitating criminal activities, such as the illegal
transport of goods.
- Pursuant
to section 3 of the BIBOB Act, an administrative body can refuse a
request for a licence or revoke a previously granted licence if there
exists a serious danger that the licence will be used either to
commit criminal offences or to enjoy the proceeds of crime.
- Section
3 of the BIBOB Act reads:
“1. In so far as administrative
authorities have acquired such power by or pursuant to an Act of
Parliament they may refuse to make a requested decision or may cancel
a decision that has been made if there is a serious danger that the
decision could be used, among other things:
(a) to enjoy proceeds obtained or yet to be
obtained from criminal offences that have been committed, or
(b) to commit criminal offences.
2. In so far as the serious danger referred
to in subparagraph 1, opening words and (a) is concerned, the degree
of danger is to be determined on the basis of:
(a) facts and circumstances that indicate or
give rise to a reasonable suspicion that the person concerned is
connected with criminal offences as referred to in subparagraph 1
(a);
(b) in the event of suspicion, the level
thereof;
(c) the nature of the connection; and
(d) the amount of the proceeds obtained or
yet to be obtained.
3. In so far as the serious danger referred
to in subparagraph 1, opening words and (b) is concerned, the degree
of danger is to be determined on the basis of:
(a) facts and circumstances that indicate or
give rise to a reasonable suspicion that the person concerned is
connected with criminal offences that have been committed in the
course of activities that correspond or are related to activities for
which the decision has been requested or given;
(b) in the event of suspicion, the level
thereof;
(c) the nature of the connection; and
(d) the number of criminal offences
committed.
4. The person concerned is deemed to be
connected with criminal offences as referred to in subparagraphs 2
and 3 if:
(a) he has himself committed these criminal
offences;
(b) he is or has been directly or indirectly
in charge of, has or has had control over or provides or has provided
capital to a legal entity within the meaning of Article 51 of the
Criminal Code (Wetboek van Strafrecht) [i.e. a body possessing
legal personality, a partnership, etc.] which has committed these
criminal offences; or
(c) another person has committed these
criminal offences and this person is or has been directly or
indirectly in charge of, has or has had control over or provides or
has provided capital to the person concerned or is in a
joint-business venture with him.
5. The refusal or cancellation
referred to in subparagraph 1 shall take place only if this is
proportionate to:
(a) the degree of danger, and
(b) in so far as the serious danger referred
to in subparagraph 1 (b) is concerned, the seriousness of the
criminal offences.
6. Administrative authorities shall have the
same power of refusal or cancellation as referred to in subparagraph
1 if facts and circumstances indicate or give rise to a reasonable
suspicion that a criminal offence has been committed in order to
obtain the decision applied for or made. The refusal or cancellation
shall take place only if it is at least proportionate, in the event
of suspicions, to the level thereof and to the seriousness of the
criminal offence.
7. If no serious danger, as referred to in
subparagraph 1, exists, the administrative authority may, in the case
of a lesser degree of danger, attach conditions to the decision. Such
conditions shall be designed to remove or limit the danger in
question.”
- In
accordance with Chapter 3 of the BIBOB Act the above procedure is
executed by a separate agency, the BIBOB Agency, at the request of an
administrative body, by consulting a number of public and classified
databases as well as the criminal records of the person requesting
the licence.
- In
the explanatory memorandum to the BIBOB Act, express reference is
made to the provisions of Article 6 of the Convention. It was
considered that any person whose request for a licence was rejected
or whose licence was revoked under the BIBOB Act had the normal
avenues of appeal available under the General Administrative Law Act
(Algemene wet bestuursrecht), and that this complied with the
provisions of Article 6 § 1. The memorandum
further stated that Article 6 § 2 was not applicable to the
procedures of the BIBOB Act as it only applied to cases where a
person was liable to have criminal charges brought against him and
had to be considered innocent until proven guilty according to law
whereas the conclusions of the BIBOB Agency and subsequent decisions
of the administrative body were not intended to establish anyone’s
guilt of a criminal offence.
- The
judgment of the Administrative Jurisdiction Division of the Council
of State concerning the present application was its first ruling on
the application of the BIBOB Act.
COMPLAINTS
- The
applicant alleged a violation of the presumption of innocence as
guaranteed by Article 6 § 2 in that offences had been held
against him of which he had not been criminally convicted and some of
which he might at most have been expected to commit in the future.
THE LAW
- The
applicant relied on Article 6 § 2 of the Convention, which
provides as follows:
“2. Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to
law.”
The
Government disputed the applicant’s allegations.
- The
Government submitted in the first place that Article 6 § 2 was
not applicable, since the proceedings in question had not at any
stage concerned the determination of a “criminal charge”
within the meaning of Article 6 of the Convention. Citing McParland
v. the United Kingdom (dec.), no. 47898/99, 30 November 1999,
they argued that this was not altered by the fact that in deciding to
refuse the applicant an operating licence the Burgomaster had had
regard to the applicant’s previous criminal record.
- Secondly,
in stating that no “criminal charge” was in issue, they
referred in addition to the criteria developed by the Court in its
case-law, namely “whether or not the text defining the offence
in issue belongs, according to the legal system of the respondent
State, to criminal law; next, the nature of the offence and, finally,
the nature and degree of severity of the penalty that the person
concerned risked incurring” (Öztürk v. Germany,
21 February 1984, § 50, Series A no. 73). The BIBOB Act belonged
squarely to administrative law, both in respect of its substance and
in respect of its procedure. Previous criminal offences were not a
primary consideration, but merely circumstances to be taken into
account to determine the risk that a licence might be abused for
criminal purposes. The refusal of a licence under the BIBOB Act was
neither punitive nor deterrent, but merely preventive.
- In
the alternative, assuming Article 6 § 2 to apply, the Government
stated that the applicant had had the benefit of procedural
guarantees including adequate defence rights, of which he had
actually made use.
- Finally,
the measure complained of was limited in duration and therefore not
disproportionate.
- The
applicant replied that the Government had exaggerated the gravity of
the various offences imputed to him to the point of
misrepresentation. Some, like the unlawful employment of foreign
nationals, had been removed from criminal law and were now enforced
entirely by administrative law. Others had been based on obsolete
legislation that had since been repealed. Others still had never
resulted in prosecutions or had been settled for very small
penalties.
- Similarly,
the Government’s rendering of the facts ignored the current
tendency in the Netherlands to transfer repressive powers from
classical criminal law to administrative law, thus depriving persons
concerned of the attendant guarantees of criminal procedure. The
object of the BIBOB Act remained, however, the fight against crime,
from which it followed that the matters which it covered properly
belonged in the criminal sphere. The actual refusal of the licence –
decided by the Burgomaster after the municipality had let the
property to him, based solely on the advisory opinion of the BIBOB
Agency – had forced him to close down his business and made it
virtually impossible for him to set up a similar business in the
foreseeable future, which reflected its nature and severity as a
punitive sanction.
- Given
the applicability of Article 6, the violation of Article 6 § 2
lay in the failure to allow him to defend himself in front of the
BIBOB Agency before it finalised its – in his submission,
ill-considered – report. Subsequent review by the Regional
Court and the Administrative Jurisdiction Division had been deficient
in scope since neither court had examined the accuracy and pertinence
of the actual information underlying the report.
- The
Court notes that unlike in a number of other cases concerning Article
6 § 2 brought against the same respondent Party, the applicant
in the present case does not complain of the wording of a judicial or
other decision reflecting a finding of guilt on his part after a
prosecution that did not result in a conviction (Masson and
Van Zon v. the Netherlands, 28 September 1995, Series A no.
327 A; Leutscher v. the Netherlands, 26 March 1996,
Reports of Judgments and Decisions 1996 II; Baars v.
the Netherlands, no. 44320/98, 28 October 2003; Del Latte
v. the Netherlands, no. 44760/98, 9 November 2004; Geerings v.
the Netherlands, no. 30810/03, 1 March 2007; and Bok v. the
Netherlands, no. 45482/06, 18 January 2011). Rather, the
applicant complains that the refusal of the operating licence in and
of itself violates Article 6 § 2 in that it takes his criminal
antecedents into account.
- The
Court and Commission have taken the view that, for purposes of
conviction and sentencing, Article 6 does not prevent domestic courts
from having regard to an existing criminal record (see, for example,
X v. Denmark,
no. 2518/65, Commission decision of 14 December 1965; Albert
and Le Compte v. Belgium,
10 February 1983, § 40, Series A no. 58; Meerbrey
v. Germany, no.
37998/97, Commission decision of 12 January 1998; and Z.
v. Latvia (dec.),
no. 14755/03, 26 January 2006). It cannot see any
reason of principle why Article 6 § 2 should prevent competent
authority from doing so in considering whether a person meets
standards of probity required for a particular purpose.
- Furthermore,
in its above-mentioned McParland decision, the Court was
invited to consider under the criminal head of Article 6 complaints
of an applicant to whom a road service license had been refused on
the ground that, in view of his criminal record, he was not
considered to be of “good repute” within the meaning of
the applicable legislation. The Court observed that the impugned
proceedings had taken the form of a licensing procedure. At no stage
had they involved the determination of a criminal charge within the
meaning of Article 6 § 1 of the Convention. This conclusion was
not affected by the fact that the applicant’s request for the
licence there in issue had foundered on the basis of his previous
criminal convictions.
- In
the present case also, the applicant was refused an operating licence
on the ground that, in view of his criminal antecedents, he was
deemed unfit to carry on his intended business. Identical reasons
therefore apply.
- It
follows that the applicant’s complaint under Article 6 § 2
is incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 35 § 3 (a)
and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the remainder of the application inadmissible.
Santiago Quesada Josep Casadevall
Registrar President
