Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32366/96

by Arie Wilhelmus José LAURENS

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 July 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 December 1995

by Arie Wilhelmus José LAURENS against the Netherlands and registered

on 22 July 1996 under file No. 32366/96;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

20 November 1997 and the observations in reply submitted by the

applicant on 16 December 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1946, and resides in

De Zilk, the Netherlands. He is represented by Mr G. Spong, a lawyer

practising in The Hague.

The facts of the case, as submitted by the parties, may be

summarised as follows.

A. Particular circumstances of the present case

On 1 January 1988, an amendment of the Social Security

Co-ordination Act (Coördinatiewet Sociale Verzekeringen) entered into

force. According to this amendment, certain acts contrary to this Act

were no longer classified as a misdemeanour (overtreding) but as an

offence (misdrijf).

On 4 December 1989, the public prosecutor at the Regional Court

(Arrondissementsrechtbank) of Haarlem requested the opening of a

preliminary judicial investigation (gerechtelijk vooronderzoek) against

the applicant and his father.

On 11 December 1989, the applicant was arrested and detained in

police custody (inverzekeringstelling) on suspicion of having violated

the Social Security Co-ordination Act.

On 14 December 1989, upon the request of the public prosecutor,

the investigating judge (rechter-commissaris) ordered the detention on

remand (inbewaringstelling) of both the applicant and his father. On

the same day the applicant was informed that a preliminary judicial

investigation against him had been opened on suspicion of violations

of the Social Security Co-ordination Act.

The applicant was released on 17 January 1990. In the course of

1990 several hearings took place, including the applicant's, who was

last heard in September 1990.

The preliminary judicial investigation in the case of the

applicant's father was closed on 8 April 1991 and the first hearing

before the Regional Court took place on 15 May 1991. On that occasion,

the Regional Court decided to suspend the proceedings against the

applicant's father in order to have a witness heard before the

investigating judge. On 23 October 1991 the Regional Court resumed the

proceedings; it handed down its judgment on 6 November 1991. The

applicant's father filed an appeal on 12 November 1991.

Around 11 December 1991, the case-file on both the applicant and

his father, which had been combined, was split and a separate case-file

on the applicant was opened. On 29 January 1992, upon request of the

public prosecutor, the investigating judge closed the preliminary

judicial investigation against the applicant, who was notified of this

decision on 10 February 1992.

On 19 February 1992, the applicant was informed that he had been

committed for trial (kennisgeving van verdere vervolging). His

objection against his committal for trial was determined by the

Regional Court on 7 April 1992. On 4 June 1992, a summons to appear on

15 June 1992 before the Magistrate (politierechter) of the Regional

Court of Haarlem on charges of misdemeanours and offences under the

Social Security Act committed between 1 January 1986 and 11 December

1989 was served on the applicant.

On 15 June 1992, the Magistrate convicted and sentenced the

applicant of misdemeanours (in respect of facts occurred in 1986 and

1987) and offences (in respect of facts occurred in 1988 and 1989)

under the Social Security Act. Both the applicant and the prosecution

filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam.

On 1 October 1992, the applicant's case-file was transmitted to the

Court of Appeal where it was received on 8 October 1992.

The first hearing before the Court of Appeal took place on

19 November 1993. Upon the applicant's request, the Court of Appeal

adjourned its proceedings as an administrative court was considering

a connected case, the outcome of which being of relevance to the

present case.

The Court of Appeal resumed the proceedings on 18 February 1994.

As its composition had changed in the meantime, the Court of Appeal

fully recommenced its examination of the applicant's case. The

proceedings were adjourned for a second time, as the applicant did not

wish to waive his right to hear witnesses. The Court of Appeal ordered

these witnesses to be summoned. On 18 May 1994, the hearing before the

Court of Appeal was concluded.

In its judgment of 1 June 1994, the Court of Appeal declared the

appeals filed by the prosecution and the applicant inadmissible insofar

as the Magistrate had convicted the applicant of misdemeanours, as no

appeal lies against a conviction of a misdemeanour.

Insofar as the applicant had been convicted of offences, the

Court of Appeal quashed the judgment of 15 June 1992 and convicted the

applicant of offences under the Social Security Co-ordination Act

committed between 1 January 1988 and 11 December 1989 and imposed a

suspended conditional prison sentence of two months and a fine of

10,000 Dutch guilders, and, pursuant to Article 423 para. 4 of the Code

of Criminal Procedure, determined the sentence for the misdemeanours

of which the applicant had been found guilty by the Magistrate at a

fine of 2,500 Dutch guilders.

Insofar as the applicant had argued that the prosecution should

be declared inadmissible on grounds of the unreasonably long duration

of the proceedings, in particular given the delay of 17 months between

September 1990 and 19 February 1992 and the further delay of 17 months

between 15 June 1992 and 19 November 1993, the Court of Appeal held

that these proceedings had lasted undesirably long. However, given the

volume and complexity of the case, the Court of Appeal did not find the

total duration to be so unreasonably long within the meaning of Article

6 para. 1 of the Convention that it should lead to the inadmissibility

of the prosecution. It would, however, take the duration of the

proceedings into account in the determination of its sentence.

In this determination the Court of Appeal considered that an

unconditional prison sentence of two months and a fine of 10,000 Dutch

guilders would be appropriate, but given the time which had elapsed

between the commission of the offences and the proceedings on appeal,

it decided to limit the prison sentence to a suspended conditional one.

The applicant filed an appeal in cassation with the Supreme Court

(Hoge Raad).

On 13 June 1995, the Supreme Court rejected the applicant's

appeal in cassation insofar as it concerned his conviction of offences

by the Court of Appeal. Insofar as the applicant had been convicted of

misdemeanours, the Supreme Court, finding that the proceedings in this

respect had exceeded a reasonable time within the meaning of Article

6 para. 1 of the Convention, quashed the Magistrate's judgment of

15 June 1992 and declared the prosecution inadmissible.

B. Relevant domestic law

Article 423 para. 4 of the Code of Criminal Procedure reads:

[Translation]

"If, in the event of a concurrence of several offences, a single

principal punishment is pronounced and an appeal is lodged only

in respect of one or more of the said offences, the punishment

for the other offence(s) shall, in case the original sentence is

quashed, be determined in the judgment on appeal."

Article 369 of the Code of Criminal Procedure provides:

[Translation]

"Proceedings shall be brought before the Magistrate where, in the

opinion of the prosecuting officer, the nature of the case is

simple, also in respect of the evidence and the application of

the law and where no sentence higher that a number of months of

imprisonment to be determined by the King, not more than six, is

to be imposed."

COMPLAINT

The applicant complains that the criminal proceedings against

him, which have lasted altogether about 61/2 years, have exceeded a

reasonable time within the meaning of Article 6 para. 1 of the

Convention. He complains in particular of the period of inactivity

between his last hearing in the preliminary judicial investigation in

September 1990 and his committal for trial on 19 February 1992. He

further complains of the delay between the Magistrate's judgment of

15 June 1992 and the first hearing on appeal on 19 November 1993.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 December 1995 and registered

on 22 July 1996.

On 10 September 1997 the Commission decided to communicate the

application.

The Government's written observations were submitted on

20 November 1997. The applicant replied on 16 December 1997.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the criminal charges against him have not been

determined within a reasonable time, in particular given two delays

which occurred in the course of the proceedings against him.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads:

"In the determination ... of any criminal charge against him,

everyone is entitled to a ... hearing within a reasonable time

by a ... tribunal ..."

The Government submit that the case involved evasion of social

security legislation, which in general demands a preparation time

longer than the average. The duration of the present proceedings can

be attributed partly to this and partly to the behaviour of the

applicant, who has sought adjournments by the Court of Appeal, which

were granted in the interest of the defence.

The Government agree that both delays indicated by the applicant

were longer than is appropriate and submit that they were caused by

internal organisational reasons. However, according to the Government,

the applicant was substantially and sufficiently compensated for the

disadvantages he suffered as a result of the long duration of the

proceedings given the mitigation of his sentence imposed by the Court

of Appeal and the decision by the Supreme Court to declare the

prosecution inadmissible in respect of the oldest offences, i.e. the

misdemeanours.

Referring to the competence of the Magistrate set out in

Article 369 of the Code of Criminal Procedure, the applicant contests

the Government's argument that the complexity of the case required a

longer preparation time than the average. He submits that these

proceedings are meant to be for simple cases only and adds that, on

average, a hearing before the Magistrate in cases of this kind takes

about twenty minutes. The applicant maintains that the proceedings

against him lasted excessively long and, on that ground, the

prosecution should have been declared inadmissible.

The Commission recalls that an applicant may lose the status of

victim within the meaning of Article 25 (Art. 25) of the Convention

when the national authorities have acknowledged either expressly or in

substance, and then afforded redress for, the breach of the Convention

complained of (cf. Eur. Court HR, Eckle v. Germany judgment of 15 July

1982, Series A no. 51, p. 30, para. 66; and No. 23871/94,

Dec. 16.10.96, D.R. 87, p. 45).

The Commission notes in the first place that the Court of Appeal

acknowledged that the proceedings against the applicant had lasted

unreasonably long, but did not consider that this should lead to the

inadmissibility of the prosecution. On the basis of the duration of the

proceedings it did, however, mitigate the applicant's sentence by

imposing a suspended conditional prison sentence instead of the

unconditional prison sentence which it considered would have been

appropriate in normal circumstances.

In addition the Supreme Court, in its judgment of 13 June 1995,

declared the prosecution inadmissible in respect of the misdemeanours

of which the applicant had been convicted, finding that the proceedings

in respect of these charges had exceeded a reasonable time within the

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

The Commission observes that the applicant does not appear to

dispute that the mitigation of his sentence and the partial

inadmissibility of the prosecution constituted a certain redress for

the duration of the proceedings against him, but he considers this

redress to be insufficient.

Given the reasons stated by the Court of Appeal for mitigating

the applicant's sentence and by the Supreme Court for declaring the

prosecution partially inadmissible and the consequential reduction of

the applicant's sentence, the Commission finds that these decisions

taken together constitute adequate redress for the unreasonably long

duration of the proceedings complained of.

The Commission is, therefore, of the opinion that the applicant

can no longer claim to be a victim within the meaning of Article 25

(Art. 25) of the Convention of a violation of the reasonable time

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

No. 17669/91, Dec. 31.3.93, D.R. 74, p. 156).

It follows that the application must be rejected as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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LAURENS v. THE NETHERLANDS

LAURENS v. THE NETHERLANDS

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