Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 15243/89

V.A.A.

against

the NETHERLANDS

REPORT OF THE COMMISSION

(adopted on 8 January 1993)

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. 21-39) . . . . . . . . . . . . . . . . . . . . . 4-6

A. Complaint declared admissible (para. 21). . . . . . 4

B. Point at issue (para. 22) . . . . . . . . . . . . . 4

C. General considerations

(paras. 23-24). . . . . . . . . . . . . . . . . . . 4

D. Determination of the length of the proceedings

(paras. 25-26). . . . . . . . . . . . . . . . . . . 4

E. Assessment of the reasonableness of the length

of proceedings (paras. 27-38) . . . . . . . . . . . 4

F. Conclusion (para. 39) . . . . . . . . . . . . . . . 6

Dissenting opinion of Mr. H. DANELIUS, joined

by MM. A. WEITZEL and L. LOUCAIDES. . . . . . . . . . . . . . . . . 7

APPENDIX I : HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . 8

APPENDIX II : DECISION ON THE ADMISSIBILITY . . . . . . . . . . 9

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, of Turkish and Cypriot nationality, was born in

1955. He is at present detained in Amsterdam, the Netherlands. Before

the Commission he is represented by Mr. H.F.M. Struycken, a lawyer

practising in Amsterdam.

3 The application is directed against the Netherlands. The

Government are represented by their Agent, Mr. Karel de Vey Mestdagh,

of the Netherlands Ministry of Foreign Affairs.

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

of the length of criminal proceedings against him. The proceedings

began with his arrest on 16 October 1986 and ended with the Supreme

Court's rejection of his appeal on 14 March 1989.

B. The proceedings

5 The application was introduced on 3 April 1989 and registered on

20 July 1989 under file No. 15243/89.

6 On 5 November 1990 the Commission decided to give notice of the

application to the respondent Government, inviting them to submit their

observations in writing on the admissibility and merits of the

application, inter alia, on the complaint under Article 6 para. 1 of

the Convention concerning the length of the criminal proceedings.

7 The Government presented their observations on 28 March 1991.

The applicant's observations in reply were submitted on 10 June 1991.

The applicant was granted free legal aid on 18 October 1991.

8 On 11 May 1992 the Commission declared the application admissible

as to the complaint of undue length of the criminal proceedings and

inadmissible as to the remainder. The Commission also decided to refer

the case to the Second Chamber.

9 At the Commission's request the parties submitted additional

factual information - the applicant on 11 June 1992 and the Government

on 25 June 1992.

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

accordance with Article 28 para. 1 (b) of the Convention, 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 finds that there is no basis on which a friendly 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:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

12 The text of the Report was adopted by the Commission on

8 January 1993 and is now transmitted to the Committee of Ministers in

accordance with Article 31 para. 2 of the Convention.

13 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.

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 forms 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 16 October 1986 the applicant was arrested on suspicion of

having committed certain drug offences contrary to the Dutch Opium Act

(Opiumwet) and subsequently detained on remand. By summons of

15 January 1987 the applicant was ordered to appear before the Regional

Court (Arrondissementsrechtbank) of Amsterdam.

17 By judgment of 25 March 1987 the Regional Court convicted the

applicant of intentional importation of heroin into the Netherlands and

sentenced him to six years' imprisonment with deduction of the time

spent in pre-trial detention.

18 The applicant appealed to the Court of Appeal (Gerechtshof) of

Amsterdam. By judgment of 10 November 1987 the Court of Appeal upheld

the Regional Court's conviction, yet increased the sentence by one year

to seven years' imprisonment with deduction of the time spent in pre-

trial detention.

19 The applicant's subsequent appeal in cassation of

10 November 1987 to the Supreme Court (Hoge Raad) was heard on

29 November 1988, and rejected by judgment of 14 March 1989. The Court

noted the applicant's complaint under Article 6 para. 1 of the

Convention that an undue delay had been caused as, despite several

reminders by his lawyer, the written version of the judgment of

10 November 1987 had not been sent to the Supreme Court until

5 July 1988. The Court held that, although the Court of Appeal had

considerably exceeded the time-limit fixed in Article 433 para. 3 of

the Code of Criminal Procedure (Wetboek van Strafvordering), the period

between 10 November 1987 and 5 July 1988 was still "reasonable" within

the meaning of Article 6 para. 1 of the Convention.

20 Under Article 433 para. 3 of the Code of Criminal Procedure, as

in force at the relevant time, the case-file should have been sent to

the Supreme Court within a maximum of 54 days from the day of the

judgment of the Court of Appeal. This provision has since been

amended. The new version, in force since 1 May 1992, no longer

contains a time-limit but stipulates that the case-file shall be

forwarded "as soon as possible".

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

21 The Commission has declared admissible the applicant's complaint

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

23 Article 6 para. 1 (Art. 6-1) 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."

24 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 relevant

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

20 February 1991, Series A no. 198, para. 30).

D. Determination of the length of the proceedings

25 The proceedings at issue began on 16 October 1986, when the

applicant was arrested, and ended with the Supreme Court's decision of

14 March 1989, rejecting the applicant's appeal in cassation.

26 The total length of proceedings thus comes to almost 2 years and

5 months.

E. Assessment of the reasonableness of the length of proceedings

27 The Government maintain that the total length of the proceedings

at issue, which were conducted before three judicial bodies and lasted

almost 2 years and 5 months, cannot be deemed unreasonably long within

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

Supreme Court considered that the time-limit contained in Article 433

para. 3 was no strict rule but a mere guideline. The amendment of

Article 433 para. 3 as from 1 May 1992 met with no objection, either

from the legal profession or from Parliament.

28 The applicant submits that the judgment of the Court of Appeal

of 10 November 1987 was first notified in writing to his lawyer on

12 September 1988 by the Registrar of the Supreme Court, despite

several requests by the lawyer to be provided with the written

judgment, whereas the date of the hearing before the Supreme Court,

i.e. 29 November 1988, was the deadline for submitting the cassation

plea.

29 The Commission notes that the facts in the present case were not

very complex.

30 The applicant did make 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.

31 As to the conduct of the judicial authorities, the Commission

notes that the investigation lasted from the applicant's arrest on

16 October 1986 until 15 January 1987, the date of his summons to

appear before the Regional Court of Amsterdam.

32 The proceedings at first instance covered the period from

15 January 1987, the date of his summons, to the date of the judgment

of the Regional Court of Amsterdam of 25 March 1987.

33 The appeal proceedings lasted until 10 November 1987, when the

Court of Appeal of Amsterdam upheld the judgment of the Regional Court.

34 On 10 November 1987 the applicant introduced an appeal in

cassation to the Supreme Court. The case-file was sent to the Supreme

Court on 5 July 1988. By judgment of 14 March 1989 the Supreme Court

dismissed the applicant's plea of nullity. The judgment of

10 November 1987 by the Court of Appeal of Amsterdam thereupon became

final and the applicant's sentence enforceable.

35 The Commission notes in particular the period between the Court

of Appeal's judgment of 10 November 1987 and the judgment of the

Supreme Court of 14 March 1989. The Commission further notes that,

after the applicant, who was detained pending the proceedings against

him, had filed his appeal to the Supreme Court on 10 November 1987, the

documents of the case were not sent to the Supreme Court until

5 July 1988 - almost eight months after the judgment had been delivered

by the Court of Appeal, whereas under Article 433 para. 3 of the Dutch

Code of Criminal Procedure, as then in force, the documents should have

been sent within a maximum of 54 days from the date of the challenged

judgment. The Government have not provided any explanation on the

reasons for this delay in the transmission of the documents.

36 The Commission recalls that what was at stake for the applicant

must be taken into account in assessing the reasonableness of the

length of proceedings and that persons held in detention pending trial

are entitled to "special diligence" on the part of the competent

authorities (Eur. Court H.R., Abdoella judgment of 25 November 1992,

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

37 The Commission considers that the present case can be

distinguished from the Abdoella case as regards both the periods of the

transmission of the documents to the Supreme Court (two periods of ten

and eleven and a half months respectively, i.e. altogether, more than

twenty-one months, in the Abdoella case and almost eight months in the

present case) and the total length of the proceedings (fifty-two months

in the Abdoella case and almost twenty-nine months in the present

case).

38 The Commission, noting that the present case was examined by

three different courts and that the total length of the criminal

proceedings against the applicant lasted slightly less than two years

and five months, considers that the delay that occurred does not

justify the conclusion that the total length of the proceedings was

excessive.

F. Conclusion

39 The Commission concludes by six votes to three that there has

been no 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)

Dissenting opinion of Mr. H. DANELIUS,

joined by MM. A. WEITZEL and L. LOUCAIDES

Although the total duration of the proceedings in the present

case was not particularly long, there was one period which, in my view,

creates special problems as far as the "reasonable time" requirement

in Article 6 para. 1 of the Convention is concerned. Indeed, I find

it a striking feature of the case that, after the applicant had

appealed on 10 November 1987 against the judgment of the Court of

Appeal, that Court did not transmit the case-file to the Supreme Court

until eight months later, on 5 July 1988.

The explanation for this delay has been provided by the

Government which in their observations state that, at the time when the

Court of Appeal gave its judgment, only an abbreviated written judgment

was available and that this judgment was not transformed into a full

judgment until after the appeal had been lodged. It further appears

from the Government's observations that this is not an unusual

procedure in the Netherlands and that, when it is applied, a

considerable time may be needed before a case-file can be transmitted

from a Court of Appeal to the Supreme Court.

I note that the European Court of Human Rights was faced with a

similar problem in the Abdoella case (Eur. Court H.R., judgment of

25 November 1992, vol. 248-A) where, however, both the total duration

of the proceedings and the time which elapsed before the case-file was

forwarded to the Supreme Court were considerably longer than in the

present case.

Nevertheless, I consider that a State is obliged under

Article 6 para. 1 of the Convention to organise its judicial system so

that, where an appeal is lodged to a higher court, the lower court is

able, within a very short time, to forward the case-file to the higher

court so as to permit it to start examining the appeal. A practice

under which, after an appeal has been lodged, it remains for the court

to draft the full judgment which is the subject of the appeal would not

seem to be in conformity with the requirements of Article 6 of the

Convention, at least not if it considerably delays the examination by

the higher court. Such a practice also appears unsatisfactory from

another point of view, as knowledge about the full contents of a

judgment would normally seem to be an essential element in the

consideration of whether or not an appeal should be lodged against that

judgment.

I cannot find, therefore, that in the present case the Government

have provided any justification for the period of eight months which

elapsed from the lodging of the applicant's appeal on 10 November 1987

to the transmission of the case-file to the Supreme Court on

5 July 1988. Consequently, I consider that the "reasonable time"

requirement in Article 6 para. 1 of the Convention has not been

respected.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_______________________________________________________________________

3 April 1989 Introduction of application

20 July 1989 Registration of application

(a) Examination of admissibility

5 November 1990 Commission's decision to

invite the Government to

submit their observations on

the admissibility and merits

of the application.

28 March 1991 Government's observations

10 June 1991 Applicant's observations in

reply

18 October 1991 Legal aid granted

11 May 1992 Commission's decision to

declare the applicant's

complaint under Article 6

para. 1 of the Convention

concerning the length

of the proceedings

admissible, to declare

the remainder of the

application inadmissible and

to refer the application to

the Second Chamber

(b) Examination of the merits

26 May 1992 Parties invited to submit

further observations on the

merits before 25 June 1992

11 June 1992 Applicant's further

observations

25 June 1992 Government's further

observations

8 January 1993 Commission's deliberations

on the merits, final vote

and adoption of the Report

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V.A.A. v. the NETHERLANDS

V.A.A. v. the NETHERLANDS

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