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AS TO THE ADMISSIBILITY OF

Application No. 21204/93

by Adrianus Johannes VERBAANT

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 18 May 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

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 6 January 1993 by

Adrianus Johannes VERBAANT against the Netherlands and registered on

21 January 1993 under file No. 21204/93;

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

15 November 1994 and the observations in reply submitted by the

applicant on 3 February 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1952. At the time of

the introduction of the application he was detained in 's-Hertogen-

bosch, the Netherlands. Before the Commission the applicant is

represented by Mrs. T.N.B.M. Spronken, a lawyer practising in

Maastricht, the Netherlands.

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

summarised as follows.

On 16 August 1989, the applicant was arrested and subsequently

detained on remand on suspicion of having committed drug offences.

On 19 December 1989, the applicant was summoned to appear before

the Regional Court (Arrondissementsrechtbank) of 's-Hertogenbosch on

4 January 1990 on several charges of dealing in narcotics and several

charges of provoking fraudulent acts.

On 18 January 1990, the Regional Court (Arrondissementsrechtbank)

of 's-Hertogenbosch convicted the applicant of several offences and

sentenced him to three years' imprisonment, less the time spent in

detention on remand.

On 30 January 1990, the applicant filed an appeal against the

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

's-Hertogenbosch.

On 10 July 1990, the applicant was summoned to appear before the

Court of Appeal on 7 August 1990.

On 7 August 1990, the applicant requested the Court of Appeal to

examine additional witnesses. The Court of Appeal adjourned its further

examination of the case to 2 November 1990.

On 16 November 1990, the Court of Appeal quashed the Regional

Court's judgment, convicted the applicant of three counts of provoking

fraudulent acts and two offences under the Opium Act, and sentenced him

to five years' imprisonment, less the time spent in detention on

remand. The applicant subsequently filed an appeal in cassation with

the Supreme Court (Hoge Raad).

On 5 February 1991, pending his appeal in cassation, the

applicant was released as a result of a procedural mistake.

On 4 October 1991, the Court of Appeal's registrar (griffier)

sent the case-file to the Supreme Court, where it was received on

7 October 1991.

The Supreme Court started its examination of the case on

24 March 1992. The applicant submitted that, between the day on which

the Court of Appeal had delivered its judgment and the hearing of the

case by the Supreme Court, so much time had elapsed that Article 6

para. 1 of the Convention was violated. He argued that the Court of

Appeal's registrar had not sent the case-file to the Supreme Court

within 54 days of the date of pronouncement of the Court of Appeal's

judgment, as prescribed by Section 433 para. 3 of the Code of Criminal

Procedure (Wetboek van Strafvordering).

On 8 July 1992 the Supreme Court rejected the applicant's appeal

in cassation. Concerning the complaint that the criminal charges were

not determined within a reasonable time, the Supreme Court considered

that, although between the date on which the appeal in cassation was

lodged and its hearing of the case more time had elapsed than was

desirable, the reasonable time had not been exceeded and that there

were no special circumstances justifying a different conclusion.

COMPLAINT

The applicant complains that the criminal charges against him

have not been determined within a reasonable time, as required by

Article 6 para. 1 of the Convention, in particular as a period of more

than sixteen months elapsed between the introduction of his appeal in

cassation and the hearing before the Supreme Court.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 January 1993 and registered

on 21 January 1993.

On 2 September 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48 para.

2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

15 November 1994. The applicant replied on 3 February 1995.

On 28 February 1995 the Commission granted the applicant legal

aid.

THE LAW

The applicant complains of the length of the criminal proceedings

against him.

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

as relevant, as follows:

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

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

...."

The Commission observes that the proceedings at issue began on

16 August 1989 when the applicant was arrested, and ended with the

Supreme Court's judgment of 8 July 1992. They thus lasted two years,

ten months and twenty-two days.

The Government submit that the proceedings against the applicant

concerned a complex case. They take the view that the applicant's case

was dealt with expeditiously in first instance and on appeal. As

regards the lapse of time between the day on which the applicant lodged

his appeal in cassation and the date on which the case-file was

received by the Supreme Court, the Government submit that, because of

the complexity of the case, the detailed elaboration of the Court of

Appeal's judgment took some considerable time. In addition, one of the

members of the Criminal Division of the Court of Appeal fell ill.

Moreover, Section 433 para. 3 of the Code of Criminal Procedure, as

amended by the Act of 27 November 1991, only stipulates that the

registrar of the court that gave judgment in appeal proceedings is

required to forward the documents to the Supreme Court "as soon as

possible", which amendment endorsed normal legal practice. Moreover,

the Supreme Court, once it had received the case-file, dealt with the

case expeditiously.

The applicant submits that his complaint mainly concerns the

lapse of more than sixteen months between the date on which he lodged

his appeal in cassation and the date on which the Supreme Court started

its examination of the case, more than ten months of which concerned

the forwarding of the case-file from the Court of Appeal to the Supreme

Court. He argues that the complexity of the case, the elaboration of

the judgment by the Court of Appeal and the illness of one of the

judges of the Criminal Division of the Court of Appeal are irrelevant

as regards the delay in sending the case-file to the Supreme Court. The

applicant further submits that the amendment to Section 433 para. 3 of

the Code of Criminal Procedure did not become effective until 1 May

1992. He further argues that he was in detention when he lodged his

appeal in cassation and that, therefore, expediency was required in

dealing with his appeal in cassation, despite his release on 5 February

1991. Having regard to the parties' submissions and the case-law of the

Convention organs, the Commission considers that the application raises

issues of fact and law which can only be resolved by an examination of

the merits. The application cannot therefore be rejected as being

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.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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VERBAANT v. THE NETHERLANDS

VERBAANT v. THE NETHERLANDS

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