Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 12728/87

A.

against

the NETHERLANDS

REPORT OF THE COMMISSION

(adopted on 14 October 1991)

TABLE OF CONTENTS

Page

I. INTRODUCTION

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

A. The application

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

B. The proceedings

(paras. 5-11) ................................. 1

C. The present Report

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

II. ESTABLISHMENT OF THE FACTS

(paras. 17-27) ........................................ 3-4

III. OPINION OF THE COMMISSION

(paras. 28-45) ....................................... 5-7

A. Complaint declared admissible (para. 28) ...... 5

B. Point at issue (para. 29) ..................... 5

C. General considerations

(paras. 30-31) ................................ 5

D. Determination of the length of the proceedings

(paras. 32-33) ................................ 5

E. Examination of the conduct of the proceedings

(paras. 34-39) ............................... 5

F. Assessment of the reasonableness of the length

of proceedings (paras. 40-44) ................. 6-7

G. Conclusion (para. 45) ......................... 7

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

APPENDIX II : DECISION ON THE ADMISSIBILITY ............... 9-15

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 1955. He is at

present detained in a prison in The Hague, the Netherlands. Before

the Commission he is represented by Mrs. Gerda E.M. Later, a lawyer

practising in The Hague.

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 18 January 1983 and ended with

the Supreme Court's rejection of his appeal on 19 May 1987.

B. The proceedings

5. The application was introduced on 9 February 1987 and

registered on 12 February 1987 under file No. 12728/87.

6. On 13 April 1989, 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, particularly the complaint under Article 6 para. 1 of the

Convention concerning the length of the criminal proceedings.

7. The Government presented their observations on 22 September

1989, after an extension of the time-limit. The applicant's

observations in reply were submitted on 19 December 1989, also after

an extension of the time-limit. The applicant was granted free legal

aid on 10 November 1989.

8. After having consulted the parties, the Commission decided on

26 February 1991 to refer the case to the Second Chamber.

9. On 10 April 1991 the Commission (Second Chamber) declared the

application admissible as to the complaint of undue length of the

criminal proceedings and inadmissible as to the remainder.

10. The Government submitted additional observations on 4 June

1991, maintaining their view that domestic remedies were not fully

exhausted, but the Commission found no basis for applying Article 29

of the Convention.

11. 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

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 of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

Mr. M.P. PELLONPÄÄ

13. The text of the Report was adopted by the Commission on 14

October 1991 and is now transmitted to the Committee of Ministers 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

(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 18 January 1983 the applicant was arrested and charged with

incitement to murder. He was accused of having promised money and

heroin to another person, for helping him to kill someone, and of having

supplied a description and the address of the person to be killed.

On the same day he was detained on remand.

By judgment of 17 May 1983 the Regional Court

(Arrondissementsrechtbank) of The Hague convicted the applicant and

sentenced him to twelve years' imprisonment less the time already

spent in prison pending trial.

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

The Hague. By judgment of 29 August 1983 the Court of Appeal upheld

the judgment of the Regional Court.

19. The applicant introduced a plea of nullity to the Supreme

Court (Hoge Raad). By judgment of 15 January 1985 the Supreme Court

quashed the Court of Appeal's judgment on technical grounds and

referred the case to the Court of Appeal of Amsterdam.

20. On 31 May 1985 the Attorney-General at Amsterdam Court of

Appeal issued a summons against the applicant. The Court of Appeal

heard the case on 28 June 1985. The applicant's request to suspend

his detention on remand was refused by the Court but his request to

suspend the hearing was granted. Before granting the suspension, the

President referred the applicant and his lawyer to Article 277a of the

Code of Criminal Procedure, which states that, if the suspect is in

pre-trial detention and the hearing is suspended, the court will as a

rule set the suspension at no more than one month. If there are

compelling reasons, however, it can set a longer period; in such cases

the reasons should be stated in the official report. The President

informed the applicant and his lawyer of the existence of a compelling

reason affecting the length of the suspension, namely that the Court

of Appeal's calendar would not permit the hearing to be resumed before

20 September 1985. The lawyer agreed to this on behalf of the

applicant.

The Court of Appeal resumed its hearing on 20 September 1985.

It refused a new request by the applicant to suspend his detention on

remand.

21. By judgment of 4 October 1985 the Court of Appeal convicted

the applicant and sentenced him to ten years' imprisonment less the

time already spent in prison pending trial.

22. The applicant introduced a plea of nullity to the Supreme

Court. He submitted, inter alia, that the length of the proceedings

exceeded "a reasonable time" within the meaning of Articles 5 para. 3

and 6 para. 1 of the Convention.

23. By letter of 4 February 1986 the applicant requested the Court

of Appeal of Amsterdam to suspend his detention on remand for several

weeks pending his Supreme Court appeal. The Court of Appeal suspended

his detention on remand for two weeks in April 1986. On 3 June 1986

the applicant requested the Court of Appeal of Amsterdam to suspend

his detention on remand for an additional two weeks, and for one

week-end every month. The Court of Appeal suspended the detention on

remand for two weeks in July 1986, but rejected the request to suspend

the detention on remand for one week-end every month.

24. On 15 September 1986 the documents concerning the case were

received by the Registry of the Supreme Court.

25. On 10 October 1986 the applicant requested the Court of Appeal

to release him from detention on remand, invoking, inter alia,

Articles 5 para. 3 and 6 para. 1 of the Convention. In the

alternative, he asked for suspension of the detention on remand. By

decision of 29 October 1986 the Court of Appeal rejected the requests.

26. By judgment of 19 May 1987 the Supreme Court dismissed the

applicant's plea of nullity. It held in respect of the period between

29 August 1983 and 15 January 1985 and the period between 15 January

1985 and 4 October 1985 that the applicant had not raised a complaint

of the length of proceedings before the Court of Appeal of Amsterdam.

Nor was the Court of Appeal bound to make an ex officio investigation

into the reasonableness of the length of proceedings, merely because

these proceedings had lasted a particular length of time. It held in

respect of the period after 4 October 1985 that Articles 5 para. 3 and

6 para. 1 of the Convention had not been violated.

27. On 4 June 1987 the applicant submitted a request for a pardon,

which was refused on 12 November 1987 by the Deputy Minister of

Justice.

An application for review, which the applicant lodged on 28

December 1987, was declared inadmissible by the Supreme Court on 6

December 1988.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

28. 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

29. 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

30. 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."

31. 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., Eckle judgment of 15 July 1982,

Series A no. 51, para. 80).

D. Determination of the length of the proceedings

32. The proceedings at issue began on 18 January 1983, when the

applicant was arrested and charged with incitement to murder. They

ended with the Supreme Court's decision of 19 May 1987 to reject the

applicant's appeal in cassation.

33. The total length of proceedings thus comes to 4 years, 4

months and 1 day.

E. Examination of the conduct of the proceedings

34. The investigation of the case covered the period between the

applicant's arrest on 18 January 1983 to the date of his summons to

appear before the Regional Court of The Hague of 14 April 1983.

35. The proceedings at first instance covered the period from 14

April 1983, the date of his summons, to the date of the judgment of the

Regional Court of The Hague of 17 May 1983.

36. The appeal proceedings lasted until 29 August 1983, when the

Court of Appeal of The Hague decided to uphold the judgment of the

Regional Court.

37. The proceedings related to the applicant's subsequent plea of

nullity to the Supreme Court lasted until 15 January 1985, when the

Supreme Court decided to quash the Court of Appeal's judgment of 29

August 1983 on technical grounds and to refer the case to the Court of

Appeal of Amsterdam.

38. The proceedings before the Court of Appeal of Amsterdam lasted

until 4 October 1985. Upon the applicant's request the hearing of 28

June 1985 was suspended and, with the applicant's consent, resumed on

20 September 1985. By judgment of 4 October 1985 the Court of Appeal

convicted the applicant and sentenced him to ten years' imprisonment

less the time already spent in prison pending trial.

39. The applicant again introduced a plea of nullity to the

Supreme Court. The case-file was received by the Registry of the

Supreme Court on 15 September 1986. By judgment of 19 May 1987 the

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

of 4 October 1985 by the Court of Appeal of Amsterdam thereupon became

final and the applicant's sentence enforceable.

F. Assessment of the reasonableness of the length of proceedings

40. The Government, maintaining that only the period between the

judgment by the Court of Appeal in Amsterdam of 4 October 1985 and the

judgment by the Supreme Court of 19 May 1987 can be taken into

consideration, regard this period as undesirably, yet not

disproportionately, long within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention. They state furthermore that it was a

serious and extensive criminal case in which several suspects were

involved. The criminal procedure as a whole took 4 years and 4

months, because the applicant used all legal remedies available to

him. The case was examined by five courts.

41. The applicant submits that the delay became all the more

unreasonable with the passing of time. Under Section 433 of the Dutch

Code of Criminal Procedure the case-file 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. In the present case the Court of Appeal of

Amsterdam took its decision on 4 October 1985, whereas the Registry of

the Supreme Court received the documents on the applicant's case on 15

September 1986, i.e. more than eleven months later. This made it

impossible for the applicant to submit written pleadings to the

Supreme Court with a view to a possible expedition of proceedings.

42. The Commission notes that the facts in the present case were

not very complex.

43. 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.

44. With regard to the conduct of the judicial authorities the

Commission regards as particularly relevant the period between 4

October 1985, when the Court of Appeal in Amsterdam took its decision,

and 19 May 1987, when the Supreme Court took its second decision in

this case. The Commission finds that this period was unreasonably long

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

It notes in this respect that under the Dutch Code of Criminal

Procedure the Registrar to the Court that took the contested decision

has to send the documents related hereto (including the contested

judgment) to the Registrar of the Supreme Court within a maximum of 54

days from the day of the decision.

G. Conclusion

45. 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

_______________________________________________________________________

9 February 1987 Introduction of application

12 February 1987 Registration of application

(a) Examination of admissibility

13 April 1989 Commission's decision to

invite the Government to

submit their observations on

the admissibility and merits

of the application limited to

the issue under Article 6

para. 1 of the Convention

concerning the length of the

proceedings

22 September 1989 Government's observations

10 November 1989 Legal aid granted

19 December 1989 Applicant's observations in

reply

14 March 1991 Decision to refer the application

to the Second Chamber

10 April 1991 Commission's decision to declare

the applicant's complaint

under Article 6 para. 1 of the

Convention concerning the

length of the proceedings

admissible and to declare

the remainder of the application

inadmissible

(b) Examination of the merits

22 April 1991 Parties invited to submit

further observations on the

merits before 31 May 1991

24 May 1991 Government's further

observations

14 October 1991 Commission's deliberations

on the merits, final vote

14 October 1991 Adoption of the Report

Menu

A. v. THE NETHERLANDS

A. v. THE NETHERLANDS

LEXI