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W. v. the NETHERLANDS

Doc ref: 18091/91 • ECHR ID: 001-45566

Document date: December 10, 1992

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W. v. the NETHERLANDS

Doc ref: 18091/91 • ECHR ID: 001-45566

Document date: December 10, 1992

Cited paragraphs only

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 18091/91

against

the NETHERLANDS

REPORT OF THE COMMISSION

(adopted on 10 December 1992)

TABLE OF CONTENTS

Page

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

PART I: STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . .3

PART II: SOLUTION REACHED . . . . . . . . . . . . . . . . . . . . . . . .4

INTRODUCTION

1. This Report relates to the application introduced under

Article 25 of the European Convention for the Protection of Human

Rights and Fundamental Freedoms by W. against the Netherlands on

4 March 1991. It was registered on 16 April 1991 under file

No. 18091/91.

2. The applicant was represented before the Commission by

Mr. G.P. Hamer, a lawyer practising in Amsterdam, the Netherlands.

The respondent Government were represented by their Agent,

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

3. On 11 May 1992 the European Commission of Human Rights

declared the application admissible. It then proceeded to carry

out its task under Article 28 para. 1 of the Convention which

provides as follows:

"In the event of the Commission accepting a petition referred

to it:

a. it shall, with a view to ascertaining the facts,

undertake together with the representatives of the

parties an examination of the petition and, if need be,

an investigation, for the effective conduct of which the

States concerned shall furnish all necessary facilities,

after an exchange of views with the Commission;

b. it shall at the same time place itself at the disposal

of the parties concerned with a view to securing a

friendly settlement of the matter on the basis of

respect for Human Rights as defined in this Convention."

4. The Commission found that the parties had reached a friendly

settlement of the case and on 10 December 1992 it adopted this

Report which, in accordance with Article 28 para. 2 of the

Convention, is confined to a brief statement of the facts and of

the solution reached.

The following members were present when the Report was

adopted:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

PART I

STATEMENT OF THE FACTS

5. The applicant is a Dutch citizen, born in 1949 and residing

in Amsterdam, the Netherlands.

6. On or about 29 September 1988, the applicant was arrested as

suspected of theft. On 6 October 1988, the Magistrate

(politierechter) of Amsterdam found him guilty of one theft,

acquitted him of another theft with which he had also been charged

and sentenced him to two months' imprisonment. On the same day,

the applicant was released from detention on remand.

7. Both the applicant and the public prosecutor appealed to the

Court of Appeal (Gerechtshof) of Amsterdam. On 20 November 1989,

the Court of Appeal quashed the judgment of the police judge, found

the applicant guilty of both thefts and sentenced him to five

months' imprisonment with deduction of the time spent in detention

on remand.

8. On the applicant's behalf, his lawyer appealed to the Supreme

Court (Hoge Raad). The lawyer also informed the registry of the

Supreme Court that he was the applicant's lawyer, although this

information was not strictly necessary, since he had already

represented the applicant before both the Magistrate and the Court

of Appeal.

9. As a reply, the registry of the Supreme Court informed the

lawyer that the applicant's case had not yet arrived at the Court.

Subsequently, the lawyer was not informed either of the arrival of

the case-file or of the date of the hearing in the case.

10. As from 13 June 1990, the applicant was detained on remand in

connection with another criminal case. During his detention a

summons for the hearing before the Supreme Court was sent to his

home address. He did not receive this letter, and it was not until

about 15 February 1991 that he was informed that he would not be

released at that time, because he had to serve a sentence of five

months' imprisonment, the Supreme Court having rejected his appeal

on 9 October 1990.

11. The applicant complained before the Commission that there had

been violations of Article 5 para. 1 and Article 6 para. 1 of the

Convention in that his detention had not been ordered in accordance

with a procedure prescribed by law and his right to defend himself

had not been respected.

PART II

SOLUTION REACHED

12. Following the decision on the admissibility of the

application, the Commission placed itself at the disposal of the

parties with a view to securing a friendly settlement in accordance

with Article 28 para. 1 (b) of the Convention and invited the

parties to submit any proposals they wished to make.

13. In accordance with the usual practice, the Secretary, acting

on the Commission's instructions, contacted the parties to discuss

with them the possibilities of reaching a friendly settlement.

14. Between 27 May 1992 and 23 October 1992 the parties exchanged

various letters and considered a proposal made by the Commission

with a view to such a settlement.

15. By letter of 13 October 1992 the Netherlands Government

informed the Commission that, in order to attain a friendly

settlement, they were willing to pay a total amount of 10.000 Dutch

guilders to the applicant, including the applicant's legal costs of

5,332.50 Dutch guilders, on the condition that the applicant

specified the costs he had to bear in relation to the procedure

before the Commission.

16. By letter of 23 October 1992 the applicant's lawyer informed

the Commission that the applicant accepted the Government's

proposals. He also submitted a specification of the applicant's

legal costs.

17. At its session on 10 December 1992 the Commission noted that

the parties had reached an agreement regarding the terms of a

settlement. It further found, having regard to

Article 28 para. 1 (b) of the Convention, that the friendly

settlement of the case had been secured on the basis of respect for

Human Rights as defined in the Convention.

18. For these reasons, the Commission adopted this Report.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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