Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23073/93

by L.I.B.

against the Netherlands

The European Commission of Human Rights sitting in private on

11 January 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

Mr. K. ROGGE, 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 8 September 1993

by L.I.B. against the Netherlands and registered on 13 December 1994

under file No. 23073/93;

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

21 June 1994 and the observations in reply submitted by the

applicant on 2 August 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1941 and residing in

Aruba. He is represented before the Commission by Mr. G. Spong, a

lawyer practising in The Hague.

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

summarised as follows.

On 22 December 1988 the applicant was arrested and provisionally

detained on suspicion of having committed drug offences. After a

preliminary investigation he was charged with the offences concerned

on 15 September 1989. The main hearing was to be held on

22 September 1989 before the Court of First Instance (Gerecht in eerste

aanleg) of Aruba, but at the Public Prosecutor's request the hearing

was adjourned until 24 October 1989. On that day the hearing was again

adjourned, this time at the request of the applicant's lawyer who

wished certain witnesses to be heard.

The proceedings were continued on 16 March 1990, and on

30 March 1990 the Court convicted the applicant of two offences and

sentenced him to nine years' imprisonment.

Upon appeal the case was brought before the Joint Court of Appeal

of the Netherlands Antilles and Aruba (Gemeenschappelijk Hof van

Justitie van de Nederlandse Antillen en Aruba). A first hearing before

that Court was to be held on 19 November 1990. This hearing was

adjourned at the request of the applicant's lawyer who wished to hear

certain persons as witnesses, one of them by means of a commission

rogatory in the Netherlands. On 31 January 1991 and 18 June 1991 this

witness was heard in the Netherlands. A further hearing before the

Court of Appeal was held on 19 August 1991. A request to hear some

persons in the Netherlands as witnesses was rejected by the Court of

Appeal, but the case was adjourned until 16 September 1991 when certain

witnesses would have been summoned to appear. On 16 September 1991 the

case was again adjourned, since the applicant's lawyer had submitted

a list of further witnesses, resident in the Netherlands, whom the

applicant wished to be heard.

On 21 October 1991 the Court of Appeal heard some witnesses and

decided, with the agreement of the parties, that certain other

witnesses should not be heard.

On 22 October 1991 the Court of Appeal quashed the judgment of

the Court of First Instance, convicted the applicant of some of the

charges, acquitted him as to the rest and sentenced him to seven years'

imprisonment.

On 28 October 1991 the applicant lodged an appeal in cassation

with the Supreme Court (Hoge Raad). On 9 November 1992 the case-file

was received by the Registry of the Supreme Court which heard the case

on 5 January 1993 and rejected the appeal on 9 March 1993. In its

judgment the Supreme Court stated inter alia:

"It appears from the documents of the case that the accused

was arrested on 22 December 1988 and detained

provisionally. Subsequently it was decided to detain him on

remand. According to the case-file the accused lodged his

appeal in cassation on 28 October 1991. According to a

stamp on the envelope the case-file arrived at the registry

of the Supreme Court on 9 November 1992. The Supreme Court

dealt with the case on 5 January 1993.

Although fourteen months and eight days elapsed between the

lodging of the appeal in cassation and the examination of

this appeal at the hearing of the Supreme Court and

consequently - also in view of the fact that the accused

was detained on remand during the said period - more time

elapsed than can generally be considered desirable, it

cannot be said that [Article 6 of the European Convention

and Article 14 of the International Covenant on Civil and

Political Rights] have as a result been violated. Having

regard also to the fact that in the proceedings before the

lower courts the examination of the case was adjourned four

times at the request of the defence - once in order to hear

by means of a commission rogatory a witness in the

Netherlands - it must be considered that the examination of

this case has been effected 'within a reasonable time' and

'without undue delay' respectively within the meaning of

the said treaty provisions."

COMPLAINT

The applicant complains of a violation of Article 6 para. 1 of

the Convention and Article 14 third paragraph under c of the

International Covenant on Civil and Political Rights in that between

the time of his arrest (22 December 1988) and the hearing before the

Supreme Court (5 January 1993) four years and fourteen days elapsed.

He emphasises that he was in detention on remand during that period and

that there were no circumstances which could justify the delays between

31 January 1991, when a witness was heard in the Netherlands, and

19 August 1991, when the next hearing before the Court of Appeal took

place, and between 22 October 1991, when the Court of Appeal gave its

judgment, and 5 January 1993, when the hearing before the Supreme Court

was held.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 September 1993 and registered

on 13 December 1993.

On 6 April 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

21 June 1994. The applicant replied on 2 August 1994.

THE LAW

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

Convention that the criminal charges against him were not determined

within a reasonable time. He also refers in this respect to Article 14

of the International Covenant on Civil and Political Rights.

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, since in the proceedings before the

Joint Court of Appeal of the Netherlands Antilles and Aruba the

applicant did not complain of the duration of these proceedings, he has

not exhausted domestic remedies within the meaning of Article 26

(Art. 26) of the Convention.

The Government further submit that the total length of the

proceedings, i.e. slightly more than four years and two months, cannot

be regarded as unreasonably long, given the large number of procedural

issues before the trial courts and the applicant's four requests for

an adjournment for the purpose of hearing witnesses.

As regards the delay between the judgment on appeal and the

receipt by the Supreme Court of the applicant's case-file, the

Government submit that this delay was caused by the fact that certain

documents were missing which had erroneously been placed in the file

of a co-accused. Once the case-file in the present case had been

received, the Supreme Court dealt speedily with the case and ruled on

the appeal in cassation already after four months.

The Government finally submit that when a case-file has been

received by the Supreme Court, it is checked whether the appellant in

cassation is being held in detention. If he is detained, the case is

in principle given priority. After the judgment in the Abdoella case

(Eur. Court H.R., judgment of 25 November 1992, Series A no. 148-A),

a special committee has been set up in order to investigate ways of

reducing the time taken for the transmission of case-files, and the

present case has been brought to the attention of this committee.

The applicant submits that he raised a complaint on the length

of the proceedings before the Supreme Court and that that court ruled

on the merits of this complaint. The fact that the same matter had not

been raised in the proceedings on appeal was not a ground on which the

Supreme Court rejected the complaint regarding the length of the

proceedings. The applicant further submits that he did urge the Supreme

Court to expedite the proceedings in cassation.

The Commission first points out that it can only examine the

application on the basis of the provisions of the European Convention

on Human Rights. Insofar as the applicant also refers to the

International Covenant on Civil and Political Rights, his complaints

therefore fall outside the competence of the Commission.

The Commission notes that the applicant raised his complaint

concerning the length of the proceedings in his appeal in cassation to

the Supreme Court against the judgment of the Joint Court of Appeal of

the Netherlands Antilles and Aruba of 22 October 1991. In its judgment

of 9 March 1993 the Supreme Court examined this complaint and rejected

it as ill-founded.

In these circumstances the applicant must be considered to have

exhausted the domestic remedies within the meaning of Article 26

(Art. 26) of the Convention.

The application cannot, therefore, be rejected under Article 27

para. 3 and Article 26 (Art. 27-3, 26) of the Convention.

Moreover, the Commission, having regard to the parties'

submissions, 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 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, unanimously,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H.DANELIUS)

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L.I.B. v. THE NETHERLANDS

L.I.B. v. THE NETHERLANDS

LEXI