EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 25507/94

S.E.W.

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 1 July 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-5) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 6-23) 2

III. OPINION OF THE COMMISSION

(paras. 24-37) 5

A. Complaint declared admissible

(para. 24) 5

B. Point at issue

(para. 25) 5

C. As regards Article 6 para. 1 of the Convention

(paras. 26-36) 5

CONCLUSION

(para. 37) 7

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 8

I. INTRODUCTION

1. The present Report concerns Application No. 25507/94 introduced on 12 July 1994 against the Netherlands and registered on 27 October 1994.

The applicant is a Canadian national born in 1951 and resident in Rotterdam.

The applicant is represented before the Commission by Mr G. Spong , a lawyer practising in The Hague.

The respondent Government are represented by their Agent, Mr R.A.A. Böcker , of the Netherlands Ministry of Foreign Affairs.

2. The application was communicated to the Government on 19 October 1995.  Following an exchange of written observations, the complaint relating to the length of proceedings (Article 6 para. 1 of the Convention) was declared admissible on 2 July 1997.  The decision on admissibility is appended to this Report.

3. Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (Second Chamber), after deliberating, adopted this Report on 1 July 1998 in accordance with Article 31 para. 1 of the Convention, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

4. In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by the Netherlands.

5. The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

6. In April 1985 the police received information that the applicant had forged bills of lading in connection with a shipment of 25 non-existent passenger cars from the Netherlands to Kuwait. From the subsequent police inquiry it appeared that the applicant, who had been running an export company dealing in passenger cars, had left the Netherlands on 15 March 1985, whereas the alleged offence had taken place just before that date. An international warrant for the applicant's arrest was issued on 6 August 1985.

7. On 10 June 1986 the investigating judge ( rechter-commissaris ) closed the preliminary judicial investigation ( gerechtelijk voor-onderzoek ) regarding the applicant and, since the applicant's address was unknown at that time, deposited the notifications of this closure and of the prosecution's decision to commit the applicant for trial ( kennisgeving van verdere vervolging ) with the Registry of the Rotterdam Regional Court ( Arrondissementsrechtbank ) on 18 June and 4 July 1986 respectively.

8. On the basis of the international arrest warrant, the applicant was apprehended by the authorities of the United States of America at the airport of Los Angeles on 7 June 1988 and was informed that he was wanted in the Netherlands. With reference to the international arrest warrant's diffusion number 6.813.3/81, the applicant's full name and date of birth, the authorities of the USA informed the Dutch authorities of this arrest and requested them to urgently confirm the warrant and whether extradition would be sought.

9. The Dutch authorities were unable to verify, within the time-limit of 48 hours set for this purpose, whether the identity of the arrested person corresponded to the applicant's. After the expiry of this time-limit, the applicant was released from the federal prison where he had been detained for lack of an extradition request.

10. It appears that the applicant was again arrested and detained in the United States in the beginning of March 1990. He was informed that he had been arrested at the request of the Dutch judicial authorities and that they suspected him of forgery. Following consultations between the Prosecutions Department ( Openbaar Ministerie ) of Rotterdam and the United States Justice Department, the applicant's extradition was requested on 30 March 1990. As the applicant did not contest his extradition, he was extradited to the Netherlands on 9 April 1990 and subsequently detained on remand.

11. On 20 April 1990 the applicant was summoned to appear before the Regional Court of Rotterdam on 27 June 1990. He was released on 2 May 1990.

12. At the hearing before the Regional Court on 27 June 1990 the applicant's lawyer argued that the determination of the criminal charges against his client could not be held to have taken place within a reasonable time and raised an objection in respect of the admissibility of the prosecution in connection with the deposition of the decision to commit the applicant for trial.

13. By interlocutory judgment of 10 July 1990 the examination of the case was suspended in order for an investigation to be carried out by the investigating judge into the question whether or not the Prosecutions Department had been, or could have been, aware, by seeking information from Interpol Canada, of the applicant's address in Canada at the time of the notification of the prosecution's decision to commit the applicant for trial. Should this have been the case, the notification had been deposited with the Regional Court's Registry contrary to provisions of the Code of Criminal Procedure ( Wetboek van Strafvordering ), entailing the inadmissibility of the prosecution. In order to clarify this issue, the investigating judge travelled to Canada.

14. Following a second hearing on 17 April 1991, the Regional Court, on 1 May 1991, found that it had not been established that Interpol Canada was aware of the applicant's address on 4 July 1986 and, consequently, that the Prosecutions Department had acted correctly in depositing the above-mentioned notification with the Registry of the Court. The applicant was found guilty of forgery and sentenced to 15 months' imprisonment with deduction of the time spent in detention in the United States pending the Netherlands' request for his extradition and the time spent in pre-trial detention in the Netherlands.

15. The Regional Court held that, as the applicant had left the Netherlands and could not be found for a long time in spite of sufficient efforts thereto by the prosecuting authorities, the delay which had occurred between the offence being committed and the case going to trial could not be attributed to the Prosecutions Department. In addition, the Regional Court stated that the applicant could himself at any time have shortened this period by travelling to the Netherlands.

16. On 7 May 1991 the applicant filed an appeal with the Court of Appeal ( Gerechtshof ) of The Hague against the Regional Court's judgment of 1 May 1991.

17. A hearing took place before the Court of Appeal on 6 November 1992 and, in its judgment of 20 November 1992, the Court of Appeal quashed the decision of the Regional Court for technical reasons, convicted the applicant of forgery and sentenced him to 12 months' imprisonment with deduction of the time spent in detention in the United States pending the Netherlands' request for his extradition and the time spent in pre-trial detention in the Netherlands.

18. The Court of Appeal rejected the argument of the defence that the prosecution should be declared inadmissible on the grounds that the proceedings had exceeded a reasonable time within the meaning of Article 6 para. 1 of the Convention. It held that neither the period between the applicant's arrest on 7 June 1988 and the examination of the case by the Regional Court on 27 June 1990 nor the period between the filing of the appeal by the applicant on 7 May 1991 and the examination of the case on appeal had been such as to justify the conclusion that the determination of the criminal charges had exceeded the reasonable time entailing the inadmissibility of the prosecution. In this respect, the Court considered irrelevant the time between 10 July 1990 and 17 April 1991 during which the investigation into the Prosecutions Department's knowledge of the applicant's address in Canada had taken place, since this investigation had been necessitated by the applicant's claim that the prosecution should be declared inadmissible for not correctly having notified the applicant of the decision to commit him for trial.

19. Although the Court of Appeal agreed with the sentence imposed on the applicant by the Regional Court, it nevertheless imposed a lighter sentence having regard to the time which had elapsed since the commission of the offence.

20. The applicant filed an appeal in cassation with the Supreme Court ( Hoge Raad ) on 25 November 1992 against the Court of Appeal's decision of 20 November 1992. He complained, inter alia , of the length of the proceedings.

21. At the end of October 1993 the applicant's case-file was received by the Supreme Court from the Registry of the Court of Appeal.

22. A hearing took place before the Supreme Court on 18 January 1994, during which the applicant, with reference to his complaint of the length of the proceedings, also drew attention to the time which had elapsed between the lodging of the appeal in cassation and the examination of the case by the Supreme Court.

23. On 3 May 1994, the Supreme Court rejected the appeal in cassation . With regard to the length of the proceedings, it accepted the Court of Appeal's considerations and, furthermore, did not find that the period which had passed between the lodging of the appeal in cassation and the Supreme Court's hearing constituted a breach of Article 6 para. 1 of the Convention.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

24. The Commission has declared admissible the applicant's complaint that his case was not heard within a reasonable time.

B. Point at issue

25. The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" requirement referred to in Article 6 para. 1 of the Convention.

C. As regards Article 6 para. 1 of the Convention

26. The relevant part of Article 6 para. 1 of the Convention provides as follows :

"In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by (a) ... tribunal ..."

27. The proceedings in question concerned the criminal charge of  forgery brought against the applicant and they accordingly fall within the scope of Article 6 para. 1 of the Convention.

28. The Commission considers that these proceedings began on 7 June 1988, when the applicant was arrested for the first time and thus substantially affected by the proceedings against him (cf. Eur. Court HR, Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, p. 24, para. 46). The proceedings at issue ended on 3 May 1994, when the Supreme Court rejected the applicant's appeal in cassation . They thus lasted slightly less than five years and eleven months.

29. The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court HR, Kemmache v. France judgment of 27 November 1991, Series A no. 218, p. 27, para. 60).

30. According to the Government, the length of the proceedings was due to the applicant's conduct as, aware of the existence of a warrant for his arrest since 7 June 1988, the applicant chose to remain abroad and to evade apprehension by the Dutch authorities. Although the applicant is solely responsible for this delay, the Dutch courts did allow him some clemency for the passage of time between the commission of the offences and the applicant's conviction.

31. The Government further submit that the applicant's objection in respect of the deposition of the notification of the decision to commit the applicant for trial was thoroughly investigated, which inevitably took some time. They further submit that the proceedings against the applicant before the trial courts were conducted within a reasonable time and that no unacceptably long delays occurred. In this respect the Government further point out that, apart from the period between 9 April and 2 May 1990, the applicant was not detained pending the proceedings against him.

32. The Commission notes that the case was not very complex and finds that the applicant's conduct is not in itself sufficient to explain the length of the proceedings. The Commission notes in particular two delays imputable to the State. The first one occurred between the applicant's first arrest in the United States in June 1988 and his second arrest in the United States in March 1990. It considers that no convincing explanation for this delay has been advanced by the respondent Government.

33. A further delay occurred between 20 November 1992, when the Court of Appeal handed down its judgment, and the first hearing before the Supreme Court on 18 January 1994. This period of inactivity appears to have been caused by the fact that it was not before the end of October 1993 that the Registry of the Court of Appeal transmitted the applicant's case-file to the Supreme Court, thus extending the period during which the applicant's case was being handled at the Court of Appeal to more than 29 months. Similarly, no convincing explanation has been advanced by the respondent Government as to the time which elapsed between the date on which the Court of Appeal handed down its judgment and the date on which the applicant's case-file was transmitted to the Supreme Court .

34. It is true that the applicant's sentence was mitigated by the Court of Appeal, but this mitigation was not based on a finding that the proceedings against the applicant had exceeded a reasonable time within the meaning of Article 6 of the Convention but on the time which had elapsed since the facts in respect of which the applicant had been charged had taken place.

35. The Commission reaffirms that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on any criminal charge brought against him within a reasonable time (Eur. Court HR, Baggetta v. Italy judgment of 22 June 1987, Series A no. 119, p. 32, para. 23).

36. In the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.

CONCLUSION

37. The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 of the Convention.

   M.-T. SCHOEPFER                              J.-C. GEUS

      Secretary                                     President

to the Second Chamber                     of the Second Chamber