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AS TO THE ADMISSIBILITY OF

Application No. 30305/96

by Hubertus Johannes AIPASSA

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 26 February 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

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 30 November 1995

by Hubertus Johannes AIPASSA against the Netherlands and registered on

27 February 1996 under file No. 30305/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1969, and resides in

Voorthuizen, the Netherlands. Before the Commission he is represented

by Mr. J.B. Boone, a lawyer practising in Wijk bij Duurstede, the

Netherlands.

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

summarised as follows.

On 14 October 1992 the applicant was arrested and subsequently

detained on remand on suspicion of having assaulted Ms. B. on

11 October 1992. According to the procès-verbal of the interview

conducted by an assistant public prosecutor, which took place

immediately after the applicant's arrest, the applicant confessed to

having beaten Ms. B. and he expressed his regret. The applicant was

released on 15 October 1992.

The applicant was summoned to appear before the Regional Court

(Arrondissementsrechtbank) of Arnhem on 9 March 1994. He was charged

with the assault on Ms. B. and with three other offences relating to

an assault on a different person and a serious traffic accident caused

by him. These latter offences had taken place on 30 April 1993 and on

28 June 1993.

On 23 March 1994 the Regional Court convicted the applicant of

all the charges and sentenced him to twelve months' imprisonment less

the time spent in pre-trial detention, whereas of these twelve months

four were suspended pending a probation period of two years. The

Regional Court also disqualified the applicant from driving for a

certain period.

Both the applicant and the prosecution filed an appeal against

the Regional Court's decision with the Court of Appeal (Gerechtshof)

of Arnhem. The applicant stated, inter alia, that the prosecution

should be declared inadmissible in respect of the offence which had

taken place on 11 October 1992, since in the determination of this

charge he had not been granted a hearing within a reasonable time. He

explicitly invoked Article 6 of the Convention.

Following a hearing on 3 October 1994, during which the Court of

Appeal adjourned the examination of the charge of assault which had

taken place on 30 April 1993, it quashed the Regional Court's judgment

on 17 October 1994, convicted the applicant of the other charges and

sentenced him to eighteen months' imprisonment less the time spent in

pre-trial detention, whereas of these eighteen months six were

suspended pending a probation period of two years. Also a longer period

of disqualification from driving was imposed. As regards Article 6

para. 1 of the Convention, the Court of Appeal considered that the

period of seventeen months which had elapsed between the applicant's

arrest and the hearing before the Regional Court could not be regarded

as unreasonable.

The applicant filed an appeal in cassation against this judgment

with the Supreme Court (Hoge Raad). He repeated his submissions in

respect of Article 6 para. 1 of the Convention. In support of hisappeal

in cassation, he referred to the Commission's decisions on the

admissibility in No. 20882/92, Dec. 11.5.94, Mangwa v. the Netherlands

and No. 23073/93, Dec. 11.1.95, B. v. the Netherlands.

The Procurator General (Procureur-Generaal) advised the Supreme

Court to reject the applicant's appeal in cassation. He noted that the

Commission's decisions referred to could not be compared with the

applicant's case, since they concerned the period of time which had

elapsed between the filing of an appeal in cassation and the

examination of that appeal by the Supreme Court. Furthermore, the

accused in those cases, unlike the applicant, had been kept in

detention on remand during the proceedings.

In its judgment of 6 June 1995 the Supreme Court rejected the

applicant's appeal in cassation.

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. In this respect he submits that nearly 17 months

elapsed between his arrest and the hearing before the Regional Court,

even though the facts of the case were not particularly complex since

he had confessed to the offence he was charged with.

THE LAW

The applicant complains that the criminal proceedings against him

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

(Art. 6-1) of the Convention. This provision, 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 established by law."

According to the constant case-law of the Court and the

Commission, the reasonableness of the length of proceedings must be

assessed in the light of the circumstances of each case and having

regard in particular to the following criteria: the complexity of the

case, the conduct of the applicant and that of the competent

authorities (cf. Eur. Court H.R., Kemmache v. France judgment of

27 November 1991, Series A no. 218, p. 27, para. 60). Persons held in

detention are further entitled to special diligence (cf. Eur. Court

H.R., Tomasi v. France judgment of 27 August 1992, Series A no. 241-A,

p. 35, para. 84).

In the present case, the proceedings started on 14 October 1992,

when the applicant was arrested, and ended on 6 June 1995, when the

Supreme Court rejected the applicant's appeal in cassation. The entire

proceedings lasted thus slightly less than two years and eight months.

It further appears that the applicant was not detained pending the

proceedings against him.

Insofar as the applicant complains of the delay between his

arrest on 14 October 1992 and the first hearing before the Regional

Court on 9 March 1994, the Commission notes that in the proceedings at

issue the applicant was not solely charged with the assault on Ms B.,

but also with other offences relating to facts which took place on

30 April 1993 and 28 June 1993.

In these circumstances, the Commission considers that the period

of time which elapsed between 14 October 1992 and 9 March 1994 cannot

be characterised as totally inactive. The Commission is, therefore, of

the opinion that the delay complained of cannot be considered as having

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

(Art. 6-1) of the Convention.

As regards the total length of proceedings, i.e. slightly less

than two years and eight months in the course of which the case has

been dealt with at three levels of jurisdiction, the Commission cannot

find either that this period was unreasonably long for the purposes of

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

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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AIPASSA v. THE NETHERLANDS

AIPASSA v. THE NETHERLANDS

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