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EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 20882/92

José Giovannie Mangwa KOC

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 22 February 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-20). . . . . . . . . . . . . . . . . . . . . . . . 3

III. OPINION OF THE COMMISSION

(paras. 21-33). . . . . . . . . . . . . . . . . . . . . . . . 4

A. Complaint declared admissible

(para. 21) . . . . . . . . . . . . . . . . . . . . . . . 4

B. Point at issue

(para. 22) . . . . . . . . . . . . . . . . . . . . . . . 4

C. Compliance with Article 6 para. 1 of the Convention

(paras. 23-32) . . . . . . . . . . . . . . . . . . . . . 4

CONCLUSION

(para. 33) . . . . . . . . . . . . . . . . . . . . . . . 5

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . . 6

APPENDIX II : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . 7

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Dutch citizen, born in 1965. At the time of

the introduction of the application the applicant was detained in the

Aruba remand centre. He was represented before the Commission by

Mr. G. Spong, a lawyer practising in The Hague.

3. The application is directed against the Netherlands. The

respondent Government were represented by their Agent,

Mr. K. de Vey Mestdagh, of the Netherlands Ministry of Foreign Affairs.

4. The applicant complains under Article 6 para. 1 of the Convention

that the criminal proceedings against him have exceeded a reasonable

time. These proceedings began with the applicant's arrest on

8 March 1989 and ended on 28 April 1992 when the Supreme Court rejected

his appeal in cassation.

B. The proceedings

5. The application was introduced on 21 August 1992 and registered

on 16 November 1992.

6. On 30 June 1993 the Commission (Second Chamber) decided, pursuant

to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite them to submit

written observations on the admissibility and the merits of the

application.

7. The Government's observations were submitted on

27 September 1993. The applicant replied on 9 December 1993. On

17 January 1994 the Government submitted additional observations. The

applicant's additional observations in reply were submitted on

1 February 1994.

8. On 11 May 1994 the Commission (Second Chamber) declared the

applicant's complaint under Article 6 para. 1 of the Convention as to

the length of the proceedings admissible.

9. The text of the Commission's decision on admissibility was sent

to the parties on 25 May 1994 and they were invited to submit such

further information or observations on the merits as they wished. The

parties did not avail themselves of this possibility.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. To this end consultations took place with the

parties between 7 July 1994 and 28 October 1994. In the light of the

parties' reaction, the Commission now finds that there is no basis on

which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (Second

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

12. The text of this Report was adopted on 22 February 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

16. On 8 March 1989 the applicant was apprehended by the police of

Aruba on the suspicion of having committed offences under the

Netherlands Antilles/Aruba Narcotics Act (Landsverordening Verdovende

Middelen) and subsequently detained on remand.

17. On 15 September 1989 the Court of First Instance (Gerecht in

Eerste Aanleg) of Aruba convicted the applicant under the Netherlands

Antilles/Aruba Narcotics Act and sentenced him to eight years'

imprisonment.

18. On 26 June 1990 the Court of Appeal of the Netherlands Antilles

and Aruba (Gemeenschappelijk Hof van Justitie van de Nederlandse

Antillen en Aruba) quashed the judgment of 15 September 1989. After a

new examination of the case it convicted the applicant under the

Netherlands Antilles/Aruba Narcotics Act and sentenced him to

seven years' imprisonment.

19. On 29 June 1990 the applicant filed an appeal in cassation with

the Supreme Court (Hoge Raad). On 11 April 1991 the Registrar of the

Court of Appeal sent the documents concerning the applicant's case to

the Supreme Court, where they were received on 15 April 1991. The

Supreme Court started its examination of the case on 14 January 1992.

On 28 April 1992 the Supreme Court rejected the appeal in cassation.

20. The Supreme Court examined the applicant's complaint that, in

view of the period between the introduction of his appeal in cassation

and the examination of the appeal by the Supreme Court whilst he

continued to be detained, the length of the proceedings had exceeded

"a reasonable time" within the meaning of Article 6 para. 1 of the

Convention. The Supreme Court noted that the period between

8 March 1989, when the applicant was apprehended and subsequently

detained on remand, and 14 January 1992, when the Supreme Court started

its examination of the applicant's appeal, was two years, ten months

and six days. The Supreme Court considered that such a period cannot,

in general, be regarded as unreasonable and that in the present case

there were no circumstances leading to a different conclusion.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

21. The Commission has declared admissible the applicant's complaint

concerning the length of the criminal proceedings against him.

B. Point at issue

22. The point at issue is accordingly whether there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

C. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention

23. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads:

"In the determination of (...) any criminal charge against him,

everyone is entitled to a (...) hearing within a reasonable time

by a (...) tribunal established by law."

24. The proceedings at issue began on 8 March 1989, when the

applicant was apprehended on the suspicion of narcotics offences and

ended with the Supreme Court's judgment of 28 April 1992. They thus

lasted more than three years and one month.

25. The Commission recalls that the reasonableness of the length of

criminal proceedings must be assessed in the light of the particular

circumstances of the case and having regard to its complexity, the

conduct of the applicant and the conduct of the competent authorities

(cf. Eur. Court H.R., Kemmache judgment of 27 November 1991, Series A

no. 218, para. 60).

26. The applicant submits that the period which elapsed between the

judgment of the Court of Appeal of the Netherlands Antilles and Aruba

(26 June 1990) and the judgment of the Supreme Court (28 April 1992),

i.e. 22 months, cannot be regarded as "reasonable" within the meaning

of Article 6 para. 1 (Art. 6-1) of the Convention. He complains in

particular of the delay in transmitting the case-file to the Supreme

Court after the judgment of the Court of Appeal. The judgment of the

Court of Appeal was given on 26 June 1990 and the case-file was not

transmitted until 11 April 1991, i.e. 9½ months later, while according

to Section 11 para. 3 of the Rules of Cassation for the Netherlands

Antilles in force at the relevant time, the time-limit for transmitting

the case-file was 84 days.

27. The Government submit that the statutory rule concerning the

delay for the transmission of a case-file to the Supreme Court, which

is no longer in force, was merely a norm to be observed by the

Registrar of the Court which gave the ruling against which an appeal

in cassation has been lodged. The failure to respect this norm does not

entail nullity. The Government further submit that the Supreme Court,

once it had received the case-file, delivered judgment within a

reasonable time.

28. The Commission notes that the facts in the present case were not

very complex.

29. The applicant made use of the remedies available to him, but

there can be no objection to an accused in criminal proceedings making

use of the ordinary remedies available to him under domestic law.

30. With regard to the conduct of the judicial authorities dealing

with the case, the Commission notes that the period between the day on

which the applicant lodged his appeal in cassation (29 June 1990) and

the day on which the Supreme Court received the applicant's case-file

from the Court of Appeal (15 April 1991) lasted about 9½ months. The

Government have offered no explanation for this delay.

31. The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention imposes on the Contracting States the duty to organise their

legal system in such a way that their courts can meet each of its

requirements (Eur. Court H.R., Bunkate judgment of 26 May 1993,

Series A no. 248-B, p. 31, para. 23).

32. The Commission finds in particular that, where an appeal is

lodged against a court's judgment, it should be possible for that court

to transmit the case-file to the higher court within a short period of

time so as to permit the higher court to start its examination of the

appeal without delay. The period of 9½ months which elapsed in the

present case cannot therefore be regarded as "reasonable" for the

purposes of Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur.

Court H.R., Bunkate judgment loc. cit., p. 31, para. 23; and Eur. Court

H.R., Abdoella judgment of 25 November 1992, Series A no. 248-A, p. 17,

para. 24).

CONCLUSION

33. The Commission concludes, by 12 votes to 1, that there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

21 August 1992 Introduction of application

16 December 1992 Registration of application

Examination of admissibility

30 June 1993 Commission's decision (Second Chamber) to

communicate the case to the respondent

Government and to invite the parties to

submit observations on admissibility and

merits

27 September 1993 Government's observations

9 December 1993 Applicant's observations in reply

17 January 1994 Government's additional observations

1 February 1994 Applicant's additional observations in

reply

11 May 1994 Commission's decision to declare

application admissible

Examination of the merits

25 May 1994 Decision on admissibility transmitted to

parties. Invitation to parties to submit

further observations on the merits, should

they so desire

6 September 1994 Commission's consideration of state of

proceedings

17 January 1995 Commission's consideration of state of

proceedings

22 February 1995 Commission's deliberations on the merits,

final vote and adoption of the Report

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KOC v. THE NETHERLANDS

KOC v. THE NETHERLANDS

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