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. BACKGROUND TO THE CASE
5. 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. 6. On the basis of that information, the Dutch Tax and Customs Administration identified the applicant as one of the account holders. 7. 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. THE CORRESPONDENCE PHASE
8. 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). 9. 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. 10. 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. 11. 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. 12. 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). THE OBJECTION PROCEEDINGS
14. 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. 15. 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. 16. 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. INTERVENING CIVIL PROCEEDINGS
17. On an unspecified date the State (the Tax and Customs Administration Directorate-General of the Ministry of Finance) summoned the applicant to appear before the provisional-measures judge (voorzieningenrechter) of the Civil 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). 18. Having heard the parties on 19 November 2008, the provisional-measures judge gave judgment on 27 November 2008. He ordered the applicant to state on the form 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). 19. The applicant did not appeal. On 9 December 2008 his counsel sent, to the counsel of the State, documents received from the applicant and his wife, 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. RESUMPTION OF TAX PROCEEDINGSResumption of the objection proceedings

20. 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). 21. 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). Appeal proceedings
23. 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). 24. 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. Further appeal proceedings
25. The applicant lodged further appeals (hoger beroep) against the Regional Court’s judgments with the Tax Division of ‘s-Hertogenbosch Court of Appeal (gerechtshof). 26. 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. Proceedings before the Supreme Court
28. 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). The Advocate-General’s opinion
29. 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 ...”
Judgment of the Supreme Court
31. 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
RELEVANT DOMESTIC LAW AND PRACTICEGeneral State Taxes Act

33. 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. ...”
34. 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). 35. 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.”
Regulation on tax fines (1993)
36. 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. Settled case-law of the Supreme Court
37. 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). 38. 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. 39. 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.”
EUROPEAN UNION LAW
40. 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.”
41. 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. AdmissibilityAs regards the bank statements and portfolio summaries in respect of 1995

45.

Article of the Convention at issue: Article 6
Outcome: no_violation