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Cite as: [2012] ECHR 573

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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;

(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;

(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.