Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25507/94

by S.E.W.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

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 12 July 1994 by

S.E.W. against the Netherlands and registered on 27 October 1994 under

file No. 25507/94;

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

2 January 1996 and the observations in reply submitted by the

applicant on 6 March 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Canadian national, born in 1951 in Lebanon,

and currently resides in Rotterdam. Before the Commission 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.

In April 1985 a business contact of the applicant made a

statement to the police, accusing the applicant of forging bills of

lading in connection with a shipment of 25 non-existent passenger cars

from the Netherlands to Kuwait. From the subsequent police inquiry it

appeared that the applicant, who had been running an export company

dealing in passenger cars, had left the Netherlands on 15 March 1985,

whereas the alleged offence had taken place just before that date. An

international warrant for the applicant's arrest was issued on

6 August 1985.

On 10 June 1986 the investigating judge (Rechter-Commissaris)

closed the preliminary judicial investigation (gerechtelijk voor-

onderzoek) regarding the applicant and, since the applicant's address

was unknown at that time, deposited the notifications of this closure

and of the prosecution's decision to commit the applicant for trial

(kennisgeving van verdere vervolging) with the Registry of the

Rotterdam Regional Court (Arrondissementsrechtbank) on 18 June and

4 July 1986 respectively.

On the basis of the international arrest warrant, the applicant

was apprehended by the authorities of the United States of America at

the airport of Los Angeles on 7 June 1988 and was informed that he was

wanted in the Netherlands. With reference to the international arrest

warrant's diffusion number 6.813.3/81, the applicant's full name and

date of birth, the authorities of the USA informed the Dutch

authorities of this arrest, requesting them to urgently confirm the

warrant and whether extradition would be sought.

The Dutch authorities were unable to verify, within the time-

limit of 48 hours set for this purpose, whether the identity of the

arrested person corresponded to the applicant's. After the expiry of

this time-limit, the applicant was released from the federal prison

where he had been detained for lack of an extradition request.

It appears that the applicant was again arrested and detained in

the United States in the beginning of March 1990. He was informed that

he had been arrested at the request of the Dutch judicial authorities

and that they suspected him of forgery. Following consultations between

the Prosecutions Department (Openbaar Ministerie) of Rotterdam and the

United States Justice Department, the applicant's extradition was

requested on 30 March 1990. As the applicant did not contest his

extradition, he was extradited to the Netherlands on 9 April 1990 and

subsequently detained on remand.

On 20 April 1990 the applicant was summoned to appear before the

Regional Court of Rotterdam on 27 June 1990. He was released on

2 May 1990.

At the hearing before the Regional Court on 27 June 1990 the

applicant's lawyer argued that the determination of the criminal

charges against his client could not be held to have taken place within

a reasonable time.

By interlocutory judgment of 10 July 1990 the examination of the

case was suspended in order for an investigation to be carried out by

the investigating judge into the question whether or not the

Prosecutions Department had been, or could have been, aware, by seeking

information from Interpol Canada, of the applicant's address in Canada

at the time of the notification of the prosecution's decision to

commit the applicant for trial. Should this have been the case, the

notification had been deposited with the Regional Court's Registry

contrary to provisions of the Code of Criminal Procedure (Wetboek van

Strafvordering), entailing the inadmissibility of the prosecution. In

order to clarify this issue, the investigating judge travelled to

Canada.

Following a second hearing on 17 April 1991, the Regional Court,

on 1 May 1991, found that it had not been established that Interpol

Canada was aware of the applicant's address on 4 July 1986 and,

consequently, that the Prosecutions Department had acted correctly in

depositing the above-mentioned notification with the Registry of the

Court. The applicant was found guilty of forgery and sentenced to

15 months' imprisonment with deduction of the time spent in detention

in the United States pending the Netherlands' request for his

extradition and the time spent in pre-trial detention in the

Netherlands.

The Regional Court held that, as the applicant had left the

Netherlands and could not be found for a long time in spite of

sufficient efforts thereto by the prosecuting authorities, the delay

which had occurred between the offence being committed and the case

going to trial could not be attributed to the Prosecutions Department.

In addition, the Regional Court stated that the applicant could himself

at any time have shortened this period by travelling to the

Netherlands.

On 7 May 1991 the applicant filed an appeal with the Court of

Appeal (Gerechtshof) of The Hague against the Regional Court's judgment

of 1 May 1991.

A hearing took place before the Court of Appeal on

6 November 1992 and, in its judgment of 20 November 1992, the Court of

Appeal quashed the decision of the Regional Court for technical

reasons, convicted the applicant of forgery and sentenced him to

12 months' imprisonment with deduction of the time spent in detention

in the United States pending the Netherlands' request for his

extradition and the time spent in pre-trial detention in the

Netherlands.

The Court of Appeal rejected the argument of the defence that the

prosecution should be declared inadmissible on grounds that the

proceedings had exceeded a reasonable time within the meaning of

Article 6 para. 1 of the Convention. It held that neither the period

between the applicant's arrest on 7 June 1988 and the examination of

the case by the Regional Court on 27 June 1990 nor the period between

the filing of the appeal by the applicant on 7 May 1991 and the

examination of the case on appeal had been such as to justify the

conclusion that the determination of the criminal charges had exceeded

the reasonable time entailing the inadmissibility of the prosecution.

In this respect, the Court considered irrelevant the time between 10

July 1990 and 17 April 1991 during which the investigation into the

Prosecutions Department's knowledge of the applicant's address in

Canada had taken place, since this investigation had been necessitated

by the applicant's claim that the prosecution should be declared

inadmissible for not correctly having notified the applicant of the

decision to commit him for trial.

Although the Court of Appeal agreed with the sentence imposed on

the applicant by the Regional Court, it nevertheless imposed a lighter

sentence having regard to the time which had elapsed since the

commission of the offence.

The applicant filed an appeal in cassation with the Supreme Court

(Hoge Raad) on 25 November 1992 against the Court of Appeal's decision

of 20 November 1992. He complained, inter alia, of the length of

proceedings.

At the end of October 1993 the applicant's case-file was received

by the Supreme Court from the Registry of the Court of Appeal.

A hearing took place before the Supreme Court on 18 January 1994,

during which the applicant, with reference to his complaint of the

length of the proceedings, also drew attention to the time which had

elapsed between the lodging of the appeal in cassation and the

examination of the case by the Supreme Court.

On 3 May 1994, the Supreme Court rejected the appeal in

cassation. With regard to the length of the proceedings, it accepted

the Court of Appeal's considerations and, furthermore, did not find

that the period which had passed between the lodging of the appeal in

cassation and the Supreme Court's hearing constituted a breach of

Article 6 para. 1 of the Convention.

COMPLAINT

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

that the criminal charges against him were not determined within a

reasonable time. He submits in particular that the delays which

occurred between his arrest at the Los Angeles airport on 7 June 1988

and the first hearing before the Regional Court on 27 June 1990, the

judgment of the Regional Court of 1 May 1991 and the examination of the

case by the Court of Appeal on 6 November 1992, and the decision of the

latter Court of 20 November 1992 and the hearing before the Supreme

Court on 18 January 1994 cannot be regarded as reasonable.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 July 1994 and registered on

27 October 1994.

On 19 October 1995 the Commission decided to communicate the

application to the respondent Government inviting them, pursuant to

Rule 48 para. 2 (b) of the Rules of Procedure, to submit written

observations on the admissibility and merits of the application.

The Government's written observations were submitted on

2 January 1996. The applicant replied on 6 March 1996.

THE LAW

The applicant complains that the criminal proceedings against him

were not determined within a reasonable time as required by Article 6

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

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 in the first place that the applicant can

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

(Art. 25) of the Convention as, in the determination of the applicant's

sentence, both the Regional Court and the Court of Appeal explicitly

took into account the time which had elapsed between the commission of

the offence at issue and their respective judgments.

As to the substance, the Government are of the opinion that the

applicant's first arrest on 7 June 1988 may be regarded as the start

of the proceedings, but that the Netherlands authorities cannot be held

responsible for the delay which occurred between the applicant's

release and his subsequent arrest in March 1990, as, aware of the

existence of a warrant for his arrest, the applicant chose to remain

abroad and to evade apprehension by the Dutch authorities. Although the

applicant is solely responsible for this delay, the Dutch courts

allowed him some clemency for the passage of time between the

commission of the offences and the applicant's conviction.

The Government further submit that the applicant's objection was

thoroughly investigated, which inevitably took some time. They further

submit that the proceedings against the applicant before the trial

courts were conducted within a reasonable time and that no unacceptably

long delays occurred. In this respect the Government further point out

that, apart from the period between 9 April to 2 May 1990, the

applicant was not detained pending the proceedings against him.

The applicant submits that, as the Dutch authorities failed to

act timely on the information - which included his full personal

details - that he had been arrested in the USA on 7 June 1988, the

Dutch authorities bear responsibility for the delay between his first

and second arrest.

As to the reduction of his sentence based on the lapse of time

between the commission of the offence and the judgment of the Court of

Appeal, the applicant submits that this does not constitute sufficient

redress. In his opinion, the prosecution should have been declared

inadmissible on the basis of the duration of the proceedings.

The applicant finally submits that the fact that he availed

himself of all the available remedies cannot be held against him, that

in any event the Dutch authorities are obliged to organise their legal

system in such a way that, even where an accused uses all available

remedies, a trial is held within a reasonable time, and that the

complexity of the case is an insufficient explanation for the total

duration of the proceedings at issue.

After an examination of the complaint in the light of the

parties' submissions, the Commission considers that it raises issues

of fact and law requiring an examination of the merits. The application

cannot, therefore, be declared manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

grounds for inadmissibility have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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S.E.W. v. THE NETHERLANDS

S.E.W. v. THE NETHERLANDS

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