#81: I force you to cooperate
No one can be forced to cooperate with their own conviction. This principle is known in criminal law as the nemo tenetur principle. An important rationale behind this principle is that a certain amount of force might affect the reliability of a statement, but also that undue coercion on a suspect is not desirable. A suspect’s right to remain silent is perhaps the most absolute and well-known right that has its origins in the nemo tenetur principle. But the principle encompasses more aspects. For example, discussions exist on how much physical pressure may be put on a suspect to cooperate with an investigation, think about giving fingerprints. In financial or tax cases the question is mostly whether you can be obliged to hand over incriminating documents to the authorities and whether these documents may be used to impose a fine? The latter question was at stake in a case before the European Court of Human Rights (ECtHR) against the Netherlands.
In criminal investigations this question hardly ever arises since documents are seldom asked from a suspect. Investigative agencies have ample opportunities to seize documents such as bank statements. In administrative penal procedures the authorities have less far-reaching powers to seize documents in the Netherlands. Take for example the tax authorities, who have the possibility to request documents for tax purposes but are not able to conduct house searches for instance. Thus, for the most part – apart from third-party examinations – the tax authorities depend on information provided by the taxpayer himself. However, if the tax authorities want to impose a tax penalty, the right to a fair trial as laid down in article 6 from EHRC applies. This means that the nemo tenetur principle applies the moment the tax authorities suspect that, for example, an incorrect tax return was filed intentionally.
The question before the ECtHR was whether enforced information may be used for the proof of a fine. A taxpayer is in principle obliged to hand over tax-relevant information and documents pursuant to Article 47 of the ‘Algemene Wet Rijksbelastingen’, the general state tax law. If someone fails to do so or does so incorrectly or incompletely, this constitutes a punishable offense. The tax authorities can also enforce bank statements through summary proceedings by means of a penalty payment. The question is whether the evidence that has been gathered through coercion is admissible as proof for a fine or whether this is contrary to the nemo tenetur principle.
A Dutch taxpayer filed a complaint with the ECHR. The facts were as follows: the tax authorities requested bank statements from Mr. Lege. At the same time a suspicion existed that he had failed to declare assets regarding a foreign bank account in his income tax returns. The requested documents were eventually enforced through penalty proceedings in civil court and then used to impose a fine. The question for the ECtHR is whether this practice and use of evidence violates the nemo tenetur principle.
In the present case, the Court recognizes that coercion was used to obtain documents that were then used to impose a fine. However, the question is whether this situation is also protected by the nemo tenetur principle. To this end, the Court considers that the documents existed independently of the defendant’s will and that the authorities knew in advance about the existence of these documents. To that extent, therefore, there was no fishing expedition. Furthermore, the degree of coercion is not such that one can speak of a violation of Article 3 of the ECHR, the article prohibiting torture, inhuman or degrading treatment. The Court thus concluded that there was no violation of the nemo tenetur principle.
This ruling offers the Netherlands an important lesson. Yes, it is possible to enforce documents through a penalty procedure and use them for a fine, but only if the documents have a pre-existence before the request and there must be no fishing expedition! This means the authorities need to know about the existence of the documents that they are requesting. The Court refers to two other ECtHR cases in this regard where the requests were formulated far too broadly and generally. Thus, the requests must be concrete and specific and the tax authorities must have concrete evidence of the existence of the documents before they can be used in the present situation to prove a fine. We believe that many requests from the tax authorities can be qualified as fishing expeditions.