Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 18395/91

Mathilde Elizabeth Lupker and Others

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 13 October 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-5). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 6-11) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 12-16). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-28) . . . . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 29-43) . . . . . . . . . . . . . . . . . . . . .5

A. Complaint declared admissible

(para. 29). . . . . . . . . . . . . . . . . . . . .5

B. Point at issue

(para. 30). . . . . . . . . . . . . . . . . . . . .5

C. General considerations

(paras. 31-32). . . . . . . . . . . . . . . . . . .5

D. Determination and assessment of

the length of the proceedings

(paras. 33-42). . . . . . . . . . . . . . . . . . .5

E. Conclusion

(para. 43). . . . . . . . . . . . . . . . . . . . .6

APPENDIX I : HISTORY OF THE PROCEEDINGS. . . . . . . . . .7

APPENDIX II : DECISION ON THE ADMISSIBILITY . . . . . . . .8

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 five applicants are Dutch citizens and resident at Nijmegen.

The first applicant, Mathilde Elizabeth Lupker, is born in 1967. The

second applicant, Caroline Christine van der Mandele, is born in 1958.

The third applicant, Rudolf Paesie, is born in 1956. The fourth

applicant, Franciscus Johannes Joseph Maria Schoenmaeckers, is born in

1964. The fifth aplicant, Jean Louis Bernard Seveke, is born in 1964.

The applicants are represented before the Commission by

Mrs. Ties Prakken, a lawyer practising in Amsterdam.

3 The application is directed against the Netherlands. The

respondent Government are represented by their Agent,

Mr. Karel De Vey Mestdagh, of the Netherlands Ministry of Foreign

Affairs.

4 The applicants complain under Article 6 para. 1 of the Convention

about the length of criminal proceedings. These proceedings started

on 24 and 25 March 1987 when the applicants were arrested on charges

of participation in an association whose aim was to commit certain

offences (Section 140 para. 1 of the Penal Code) or, subsidiarily, of

incitement to, or complicity in, attempted killing, attempted serious

ill-treatment, ill-treatment, violence against persons and property and

arson. It ended on 16 October 1990 with the Supreme Court's decision

to reject the first, second, third and fifth applicants' appeals in

cassation and to quash the Court of Appeal's judgment as regards the

fourth applicant.

5 Before the Commission, the applicants complain of the length of

the above proceedings and allege a violation of Article 6 para. 1 of

the Convention.

B. The proceedings

6 The application was introduced on 8 April 1991 and registered on

21 June 1991. On 20 February 1992, the Commission decided to give

notice of the application to the respondent Government inviting them

to submit observations in writing on the admissibility and merits of

the application.

7 The Government submitted their observations on 27 May 1992 and

the applicants replied on 1 September 1992.

8 On 7 December 1992, the Commission declared the applicants'

complaint under Article 6 para. 1 of the Convention as to the length

of the proceedings admissible. The remainder of the application was

declared inadmissible.

9 On 7 December 1992, the Commission referred the application to

the Second Chamber.

10 On 14 December 1992, the parties were invited, should they so

desire, to submit further observations regarding the merits of the

application. They did not avail themselves of this possibility.

11 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 of the case. In the light of the parties'

reactions, the Commission now finds that there is no basis on which

such a settlement can be effected.

C. The present Report

12 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:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

13 The text of the Report was adopted on 13 October 1993 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 1 of the Convention.

14 The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

(1) to establish the facts, and

(2) to state an opinion as to whether the facts

found disclose a breach by the State concerned

of its obligations under the Convention.

15 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 forms Appendix II.

16 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

17 On 16 September 1986, parts of an office building at Nijmegen

were occupied by a number of persons as a protest against the town-

planning at Nijmegen and against a law which was seen as directed

against squatters. On 24 December 1986, the President of the Regional

Court (Arrondissementsrechtbank) of Nijmegen decided that the squatters

who occupied the building could be removed by force within three days

from the serving of this decision. The decision was served on

8 January 1987.

18 On 11 January 1987, some windows at the Town Hall of Nijmegen

were crushed, and there was a fire at one of the entrances of the Town

Hall.

19 On 14 January 1987, the Public Prosecutor (Officier van Justitie)

asked the Investigating Judge (Rechter-Commissaris) to open a judicial

investigation against X (unknown person) in regard to the fire at the

Town Hall. According to the police, those who had caused the fire were

to be found within the group of persons occupying the office building.

20 On 19 January 1987, there was unrest at Nijmegen and the

squatters were removed by the police. Ten persons were arrested but

they were all released again within four days.

21 On 21 January 1987, there was a fire at the entrance of the

building of the National Police at Nijmegen. On 2 February 1987, the

Public Prosecutor requested a further judicial investigation about the

incidents on 19 January 1987.

22 On 19 March 1987, the Public Prosecutor again requested a judicial

investigation. As suspects he indicated eight persons, among whom all

five applicants. The charge was extended to cover "participation in

an association whose aim is the commission of offences", this being the

offence provided for in Section 140 para. 1 of the Penal Code (Wetboek

van Strafrecht).

23 On 24 March 1987, searches were carried out at five addresses at

Nijmegen. Seven of the eight suspects (among whom the first, second,

third and fifth applicants) were arrested on that day. The eighth

suspect (the fourth applicant) was arrested on 25 March 1987.

24 The applicants were released on 7 May 1987. Subsequently, they

were indicted, together with three other suspects, before the Regional

Court of Arnhem. They were charged primarily with participation in an

association whose aim was to commit certain offences (Section 140

para. 1 of the Penal Code) or, subsidiarily, with incitement to, or

complicity in, attempted killing, attempted serious ill-treatment, ill-

treatment, violence against persons and property and arson.

25 The trial before the Regional Court was held from 15 October to

7 December 1987. On 21 December 1987, the Regional Court pronounced

its judgment. All the accused were acquitted in respect of the primary

charge but convicted in respect of the subsidiary charge and sentenced

to eight months' imprisonment, out of which four months' imprisonment

would be a conditional sentence.

26 Both the sentenced persons and the Public Prosecutor appealed.

27 On 23 September 1988, the hearing was held before the Court of

Appeal (Gerechtshof) of Arnhem. On 7 October 1988, the Court of Appeal

convicted the accused of the primary charge. The accused were

sentenced to nine months' imprisonment, three months of which would be

a conditional sentence.

28 All the eight sentenced persons appealed on 18 October 1988 to

the Supreme Court (Hoge Raad). The case-file was transmitted to the

Supreme Court on 18 August 1989. In its judgment of 16 October 1990,

the Supreme Court rejected the appeals of seven of the sentenced

persons. In respect of the eighth person (the fourth applicant), the

judgment of the Court of Appeal was quashed.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

29 The Commission declared admissible the applicants' complaint

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

length of the criminal proceedings against them.

B. Point at issue

30 The point at issue is accordingly whether there has been a

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

C. General considerations

31 Article 6 para. 1 (Art. 6-1) first sentence of the Convention

stipulates:

"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."

32 The three criteria established by the case-law of the European

Commission and Court of Human Rights for assessing whether or not the

length of proceedings has been reasonable are the complexity of the

case, the conduct of the applicant and the conduct of the competent

authorities (see Eur. Court H.R., Kemmache judgment of

27 November 1991, Series A no. 218, para. 60).

D. Determination and assessment of the length of the proceedings

33 The proceedings at issue began on 24 and 25 March 1987, when the

applicants were arrested. They ended with the Supreme Court's judgment

of 16 October 1990.

34 The proceedings thus lasted a little less than three years and

seven months.

35 According to the applicants, this lapse of time and in particular

the time between the judgment of the Court of Appeal (7 October 1988)

and the judgment of the Supreme Court (16 October 1990), i.e. about two

years, cannot be regarded as "reasonable" within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention. In particular, the

delay in transmitting the case-file to the Supreme Court after the

judgment of the Court of Appeal was excessively long. The judgment of

the Court of Appeal was given on 7 October 1988 and the case-file was

not transmitted until 18 August 1989, i.e. ten months later, while

according to Section 433 para. 3 of the Code of Criminal Procedure in

force at the relevant time, the time-limit for transmitting the case-

file was 54 days.

36 The Government recall that the proceedings lasted slightly less

than three years and seven months. Viewed as a whole, this period

could not, in the Government's opinion, be considered as unreasonable

as the case was a complicated one with eight suspects and a substantial

file. For the same reasons, the length of the procedure before the

Supreme Court could not be considered as unreasonable. The Government

concede that the statutory time-limit of 54 days laid down in Section

433 para. 3 of the Code of Criminal Procedure for the sending of the

documents from the Registry of the Court of Appeal to the Supreme Court

was not respected. However, they submit that this delay can rarely be

observed in practice. This provision was therefore amended as of

1 May 1992, the fixed limit of 54 days having been replaced by the

words "as soon as possible".

37 The Commission notes that the first instance and the appeal

proceedings lasted slightly more than 18 months. In view of the

circumstances described above (paras. 17-27) it does not find this

period unreasonably long.

38 The period between the lodging of the applicants' appeals to the

Supreme Court and the judgment of that Court was about two years. As

regards this period, there is one striking feature, namely the time

which elapsed before the case-file was transmitted to the Supreme

Court.

39 Although the applicant filed his appeal on points of law on

18 October 1988, the registry of the Supreme Court did not receive the

case-file until 18 August 1989. For this period of ten months, the

Government have offered no satisfactory explanation.

40 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 mai 1993,

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

41 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 very short

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

examination of the appeal without delay. The period of ten 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 mentioned above,

para. 23; Eur. Court H.R., Abdoella judgment of 25 November 1992,

Series A no. 248-A, para. 24).

42 The Commission therefore finds that the applicants did not have

a hearing within a reasonable time within the meaning of Article 6

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

E. Conclusion

43 The Commission concludes by 8 votes to 3 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) (S. Trechsel)

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

___________________________________________________________________

8 April 1991 Introduction of application

21 June 1991 Registration of application

Examination of admissibility

20 February 1992 Commission's decision to invite the

Government to submit their

observations on the admissibility and

merits of the application

27 May 1992 Government's observations

1 September 1992 Applicant's observations in reply

7 December 1992 Commission's decision to declare the

application admissible. Commission's

decision to invite the parties,

should they so desire, to submit

further observations on the merits of

the application

Examination of the merits

13 October 1993 Commission's deliberations on the

merits final vote and adoption of the

Report

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LUPKER AND OTHERS v. the NETHERLANDS

LUPKER AND OTHERS v. the NETHERLANDS

LEXI