Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 13645/88

BUNKATE J.

against

the NETHERLANDS

REPORT OF THE COMMISSION

adopted on 1 April 1992

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. 17-21) ........................................ 3

III. OPINION OF THE COMMISSION

(paras. 22-36) ....................................... 4-5

A. Complaint declared admissible (para. 22) ...... 4

B. Point at issue (para. 23) ..................... 4

C. General considerations

(paras. 24-25) ................................ 4

D. Determination and assessment of the length of

the proceedings (paras. 26-34) ................ 4-5

G. Conclusion (para. 35) ......................... 5

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

APPENDIX II : DECISION ON THE ADMISSIBILITY ............... 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 1949 and residing in

The Hague, the Netherlands. Before the Commission the applicant is

represented by Mrs. G.S. Koopman-Rond, a lawyer practising in The

Hague.

3. The application is directed against the Netherlands. The

respondent Government are represented by their Agent, Mrs. D.S. van

Heukelom, succeeded by Mr. Karel de Vey Mestdagh, both of the

Netherlands Ministry of Foreign Affairs.

4. The application concerns the complaint under Article 6 para. 1

of the Convention about the length of criminal proceedings. These

proceedings started on 12 September 1983 when the applicant was

arrested on charges of forgery and ended on 26 May 1987 with the

Supreme Court's decision to reject the applicant's appeal in cassation.

5. Before the Commission the applicant complains of the length of

the proceedings and alleges a violation of Article 6 para. 1 of the

Convention.

B. The proceedings

6. The application was introduced on 24 November 1987 and registered

on 7 March 1988 under file No. 13645/88. On 12 October 1989 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 18 December 1989

and the applicant replied on 1 March 1990. The applicant was granted

free legal aid on 18 May 1990.

8. The Commission referred the application to the Second Chamber on

8 January 1991.

9. On 8 July 1991 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.

10. On 15 July 1991 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 para. 1 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

Mrs. G. H. THUNE

MM. F. MARTINEZ RUIZ

L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

13. The text of this Report was adopted by the Commission on 1 April

1992 and is now transmitted to the Committee of Ministers of the

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

Convention.

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

Convention, is:

a) to establish the facts, and

b) 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 as 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 12 September 1983 the applicant was arrested in The Hague on

suspicion of having committed forgery. He was placed in detention on

remand until 16 December 1983 when he was released by order by the

Public Prosecutor (Officier van Justitie) on grounds of cell-shortage.

Preliminary investigations (gerechtelijk vooronderzoek) were held

between 16 September 1983 and 19 October 1983.

18. On 5 January 1984 the Regional Court (Arrondissementsrechtbank)

of The Hague convicted the applicant and sentenced him to one year's

imprisonment. On the same day both the applicant and the Public

Prosecutor appealed to the Court of Appeal (Gerechtshof) of The Hague.

19. After the judgment of the Regional Court the applicant went to

the Dominican Republic on 7 January 1984. During his visit he was

reported dead in the Netherlands on the basis of an official document

issued by the competent Dominican authorities. His death was

registered in The Hague on 18 May 1984. The applicant returned to the

Netherlands on 19 November 1984. On his behalf, his mother requested

on 3 December 1984 a court order from the Regional Court of The Hague

for correction of the death certificate. On 2 October 1985 the

applicant obtained this court order and the register was changed

accordingly on 25 June 1986.

20. The hearing before the Court of Appeal concerning the applicant's

appeal against his conviction and sentence started on 14 May 1985. In

its judgment of 28 May 1985 the Court of Appeal confirmed the

conviction but increased the sentence of imprisonment to one year and

four months.

21. The applicant appealed to the Supreme Court (Hoge Raad) on 10

June 1985. The Court of Appeal transmitted the case-file to the

Supreme Court 15½ months later, i.e. on 23 September 1986. On 17

February 1987 the Attorney General (Procureur Generaal) filed his

submissions and on 26 May 1987 the Supreme Court rejected the appeal.

It held, inter alia, that, although the delay between the appeal to the

Supreme Court and the hearing before it was unusually long, it did not

exceed the requirement of reasonable time within the meaning of Article

6 para. 1 of the Convention. This conclusion was not altered by the

fact that the applicant's lawyer had regularly inquired about the

progress of the case, since she had apparently not requested that the

case be dealt with speedily.

It is disputed between the parties whether the applicant's

representative did press for an urgent hearing in cassation.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

22. 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

23. 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

24. 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."

25. 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

26. The proceedings at issue began on 12 September 1983, when the

applicant was arrested and charged with forgery. They ended with the

Supreme Court's decision of 26 May 1987 to reject the applicant's

appeal in cassation.

27. The total length of proceedings thus comes to 3 years, 8 months

and 14 days.

28. According to the applicant, this lapse of time and in particular

the time between the decision of the Court of Appeal (28 May 1985) and

the decision of the Supreme Court (26 May 1987), i.e. 2 years, cannot

be regarded as "reasonable" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention. His representative pressed on several

occasions for an urgent hearing before the Supreme Court and illness

of staff members of the Court of Appeal is not a valid justification

for this delay.

29. The Government submit that the delay is essentially due to

illness of the Court of Appeal's staff members. Therefore the period

between the decision of the Court of Appeal and the decision of the

Supreme Court, although long, was not unreasonable. The Government

contest that the applicant's representative pressed for an urgent

hearing in cassation.

30. The Commission notes that the first instance and the appeal

proceedings lasted for 20½ months. In view of the circumstances

described above (paras. 17-20) it does not find this period

unreasonably long.

31. The proceedings before the Supreme Court lasted about 2 years.

31. The Commission does not consider that the issue before the

Supreme Court was of such complexity as to justify the length of the

proceedings.

32. As regards the conduct of the parties it notes that the applicant

filed an appeal in cassation on 10 June 1985 but that the Court of

Appeal did not forward the case-file to the Supreme Court until 23

September 1986, i.e. 1 year 3 months and 13 days later. The Attorney

General filed his submissions on 17 February 1987 and the Supreme Court

rendered its judgment on 26 May 1987, i.e. nearly 2 years after the

introduction of the appeal in cassation.

33. The Commission observes that, under Section 433 of the Dutch Code

of Criminal Procedure (Wetboek van Strafvordering), the documents

concerning the case should have been sent to the Supreme Court within

a maximum of 54 days from the day of the decision of the Court of

Appeal (cf. No. 12728/87, A. v. the Netherlands, Dec. 10.4.91). It is

true that the assessment of the reasonableness of the length of the

proceedings under Article 6 para. 1 (Art. 6-1) of the Convention cannot

be made dependent on time-limits stipulated in domestic law (cf. M. v.

Austria, Comm. Rep. 10.3.88, p. 15 para. 71; No. 13964/88, K. v. the

Netherlands, Dec. 17.4.91). But it must be taken into account that the

national law prescribes a time-limit which has been surpassed by almost

14 months. Even apart from this legal provision, the delay of 15½

months between the introduction of the appeal in cassation and the

transmission of the files from the Court of Appeal to the Supreme Court

- the main cause of the length of the proceedings before the Supreme

Court in the present case - can in the Commission's view not be

justified by lack of available staff as suggested by the Government.

The Commission here refers to its findings in a similar case

(Marijnissen v. the Netherlands, Comm. Report 12.3.84, D.R. 40 p. 83).

It also notes that, during the relevant period, the applicant's lawyer

regularly inquired about the progress of the case (para. 21 above),

although it is uncertain whether she expressly requested a hearing to

be held urgently.

34. In the light of the above considerations the Commission finds

that the length of the proceedings between the judgment of the Court

of Appeal and the decision of the Supreme Court was excessive and that

this is due to a delay imputable to the State.

E. Conclusion

35. The Commission concludes unanimously 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

_______________________________________________________________________

24 November 1987 Introduction of application

7 March 1988 Registration of application

Examination of admissibility

12 October 1989 Commission's decision to

invite the Government to

submit their observations on

the admissibility and merits

of the application

18 Decmeber 1989 Government's observations

1 March 1990 Applicant's observations in

reply

18 May 1990 Legal aid granted

8 January 1991 Decision to refer the

application to the Second

Chamber

8 July 1991 Commission's decision to

declare the application

admissible

Examination of the merits

15 July 1991 Parties invited to submit

further observations on the

merits

1 April 1992 Commission's deliberations

on the merits, final vote and

adoption of the Report

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BUNKATE V. THE NETHERLANDS

BUNKATE V. THE NETHERLANDS

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