Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24382/94

by Gerard Emile BARTO

against the Netherlands

The European Commission of Human Rights sitting in private on

3 March 1995, the following members being present:

MM. C. A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

G. JÖRUNDSSON

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

E. KONSTANTINOV

G. RESS

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 November 1993

by Gerard Emile BARTO against the Netherlands and registered on 13 June

1994 under file No. 24382/94;

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 1946, and residing at

Delft, the Netherlands. Before the Commission he is represented by Mr.

R.J. Baumgardt, a lawyer practising in Spijkenisse, the Netherlands.

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

summarised as follows.

On 17 January 1990, the applicant was arrested and subsequently

detained on remand. He was released on 12 April 1990.

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

Regional Court (Arrondissementsrechtbank) of Rotterdam on 25 April 1990

on five charges of theft and the illegal handling and sale of stolen

goods.

On 25 April 1990, the Regional Court examined the facts of the

applicant's case and adjourned its further examination until

23 May 1990, in order to examine the applicant's case at the same time

as the case against the co-accused, Mr. B. The applicant stated that

he did not wish an adjournment of his case. On 23 May 1990, the

Regional Court resumed its examination.

On 6 June 1990, the Regional Court acquitted the applicant of

three charges, convicted him of one charge of illegal handling of

stolen goods and one charge of theft committed together with others,

and sentenced him to twelve months' imprisonment, of which three months

were suspended pending a probation period of two years.

On the same day, the applicant lodged an appeal against the

judgment with the Court of Appeal (Gerechtshof) of the Hague. The Court

of Appeal received the case-file on 4 September 1990.

The Court of Appeal started its examination on 25 May 1992. The

applicant submitted, inter alia, that Article 6 para. 1 of the

Convention had been violated given the unreasonably long delay between

the judgment of the Regional Court and the hearing on appeal. He argued

that on that basis the prosecution should be declared inadmissible.

Following its examination and the parties' pleas, the Court of Appeal

closed its examination and set a date for the pronouncement of its

judgment.

In its interlocutory judgment of 5 June 1992, the Court of Appeal

rejected the applicant's complaint under Article 6 para. 1 of the

Convention, holding that, although the delay at issue was longer than

desirable, it could not be regarded as unreasonable for the purposes

of Article 6 para. 1 of the Convention. The Court of Appeal further

decided to re-open its examination, as it had appeared to have been

incomplete, and to examine three witnesses. On 31 August 1992, the

Court of Appeal heard the three witnesses, including a certain Mr. B.,

who refused to make any statement.

In the appeal proceedings, the Procurator General (Procureur-

Generaal) stated that he found four charges against the applicant

proven and requested the court to sentence him to eighteen months'

imprisonment.

On 14 September 1992, the Court of Appeal quashed the Regional

Court's judgment, acquitted the applicant of three charges, convicted

him of two charges of theft committed together with others and

sentenced him to twelve months' imprisonment, of which three months

were suspended pending a probation period of two years.

As to the sentence imposed, the Court of Appeal stated as

follows:

"Verdachte heeft zich met anderen schuldig gemaakt aan

diefstal van twee opleggers met containers waarvan de

inhoud alleen al een waarde van enkele tonnen

vertegenwoordigde.

Het hof is van oordeel dat de ernst van deze feiten op

zichzelf beschouwd het opleggen van een zwaardere straf dan

door de eerste rechter is bepaald, zou rechtvaardigen.

Rekening houdend met het tijdsverloop tussen het instellen

van het hoger beroep door de verdachte en de behandeling in

hoger beroep, zal het hof - (...) van oordeel (...) dat een

redelijke termijn als bedoeld in artikel 6, eerste lid, van

het Europees Verdrag tot bescherming van de rechten van de

mens en de fundamentele vrijheden niet is geschonden -

echter volstaan met het opleggen van een straf die gelijk

is aan die van de eerste rechter."

"The accused is, together with others, guilty of the theft

of two trailers with containers, the contents of which

alone already represented a value of several hundred

thousand guilders.

The court considers that the gravity of these offences

would, in itself, justify the imposition of a more severe

penalty than was determined by the court of first instance.

Taking into account the lapse of time between the lodging

of the appeal by the accused and the examination in appeal,

the court will, however - ... finding ... that a reasonable

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

European Convention for the Protection of Human Rights and

Fundamental Freedoms has not been violated - limit itself

to the imposition of a penalty equal to the one imposed by

the court of first instance."

The applicant's subsequent appeal in cassation to the Supreme

Court (Hoge Raad), in which he complained, inter alia, that the Court

of Appeal had wrongly rejected his complaint under Article 6 para. 1

of the Convention in respect of the delay between the judgment by the

Regional Court and the hearing before the Court of Appeal, was rejected

on 29 June 1993.

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 delay between the

judgment of the Regional Court and the hearing on appeal before the

Court of Appeal cannot be regarded as reasonable.

THE LAW

The applicant complains that the criminal proceedings against him

were not determined within a reasonable time within the meaning of

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

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

relevant, reads as follows:

"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."

The Commission observes that the proceedings at issue began on

17 January 1990, when the applicant was arrested, and ended with the

Supreme Court's judgment of 29 June 1993. The proceedings thus lasted

three years and five and a half months.

The Commission recalls that the reasonableness of the length of

criminal proceedings is to be determined with reference to the criteria

laid down in the Convention organs' case-law and in the light of the

circumstances of the case, which in this instance call for an overall

assessment (Eur. Court H.R., Vendittelli judgment of 18 July 1994,

Series A no. 293-A, para. 22).

The Commission notes that the facts in the present case were not

complex and that there is no indication that the applicant caused any

delays. As regards the conduct of the competent authorities, the

Commission observes that the present case was examined by three

different courts and that, apart from the period between

17 January 1990 and 12 April 1990, the applicant was not detained

pending the proceedings against him. Furthermore, the Court of Appeal

took the delay in the proceedings into account when imposing a penalty

which was less severe than it would have been without such delay.

In these circumstances the Commission cannot find that the

proceedings, considered as a whole, exceeded the reasonable time

envisaged by 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, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H. KRÜGER) (C. A. NØRGAARD)

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BARTO v. THE NETHERLANDS

BARTO v. THE NETHERLANDS

LEXI