Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23230/94

by R.E.P.L.

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 13 October 1993

by R.E.P.L. against the Netherlands and registered on 10 January 1994

under file No. 23230/94;

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 national, born in 1954, and currently

resides at The Hague. Before the Commission he is represented by

Mr. P.J. Baauw, a lawyer practising in Utrecht.

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

summarised as follows.

On 28 August 1989 in Amsterdam the applicant shot another person

after that person had threatened him with a knife. The next day the

applicant reported the events to the police at Utrecht. He was taken

in detention on remand and charged with manslaughter.

Following a hearing on 11 January 1990, the Regional Court

(Arrondissementsrechtbank) of Amsterdam, finding that the applicant had

acted in legitimate self-defence and used excessive force (noodweer-

exces), decided on 17 January 1990 that he was not to be punished for

manslaughter.

The applicant was consequently discharged and his release

ordered. The applicant was present when the Regional Court pronounced

its decision. On 29 January 1990 the public prosecutor filed an appeal

against the Regional Court's decision.

On 31 January 1990 the Registry of the Regional Court informed

the applicant's lawyer of the appeal. On the same day, the lawyer

informed the applicant of the appeal.

Until 1 May 1992, in cases where only the public prosecutor had

filed an appeal, an appeal court, pursuant to Section 409 para. 2 of

the Code of Criminal Procedure (Wetboek van Strafvordering), could only

formally accept the pertaining case-file when the appeal notification

had been served on the accused in person, or when it was clear that the

accused was aware of the public prosecutor's appeal.

On 20 February 1990 a notification of the appeal was presented

to the applicant's home address in The Hague. However, the applicant

had in the meantime moved to Amsterdam, where at that moment he was

registered in the Population Registry (Bevolkingsregister). The

notification could consequently not be served on him. No message was

left behind. On 27 February 1990 the notification was returned to the

public prosecutor.

On 16 May 1991 the applicant was apprehended by an officer of the

National police (Rijkspolitie), who served him with the notification.

On 26 July 1991 the applicant's case-file was transmitted to the

Court of Appeal (Gerechtshof) of Amsterdam.

The proceedings on appeal started on 7 April 1992. After having

deliberated, the Court of Appeal rejected the applicant's objection

that the prosecution should be declared inadmissible in view of the

length of time which had elapsed between the Regional Court's judgment

and the proceedings on appeal.

Although holding that this delay was longer than desirable, it

found that this should not result in the inadmissibility of the

prosecution and that the period at issue could not be regarded as

unreasonably long. In this finding the Court had regard to the fact

that both the applicant's lawyer, who was aware of the contents of

Section 409 para. 2 of the Code of Criminal Procedure, and the

applicant knew that the public prosecutor had filed an appeal, and that

they had remained in regular contact. It stated that the applicant

could have informed the Registry of the Regional Court or the Court of

Appeal that he was aware of the appeal. Although acknowledging that the

applicant was under no obligation to do so, the Court of Appeal held

that, where the accused, while being assisted by a lawyer, is aware of

the appeal, his passive attitude does affect the plea based on Article

6 para. 1 of the Convention.

The Court of Appeal subsequently adjourned its proceedings until

19 June 1992 in order to enable the prosecution to summon two

witnesses. The applicant stated he did not wish to hear any witnesses.

On 19 June 1992 the Court of Appeal resumed the proceedings and

examined the two witnesses.

On 3 July 1992 the Court of Appeal quashed the Regional Court's

judgment of 17 January 1990, convicted the applicant of manslaughter

and sentenced him to seven years' imprisonment under deduction of the

time spent in pre-trial detention.

In respect of the determination of the sentence, the Court of

Appeal stated, inter alia:

"The facts found proven, i.e. manslaughter, belongs to the

most serious category of offences punishable under the

Criminal Code. The legislator threatens the offence with

imprisonment of up to fifteen years. The legal order is

seriously rocked by this fact. The court has further

considered that already earlier the suspect has rendered

himself guilty of an offence involving violence. In

principle the court finds - noting the serious gravity of

the facts established - the sentence requested by the

public prosecution in first instance and on appeal [seven

years' imprisonment] to be insufficient.

Only in view of the long period of time, which elapsed

since 28 August 1989, the court finds reason to confine

itself to [the imposition of] a prison sentence for a

duration of seven years."

The applicant's appeal in cassation to the Supreme Court (Hoge

Raad) was rejected on 20 April 1993. As to the applicant's complaint

that the Court of Appeal had unjustly rejected his argument, based on

Article 6 para. 1 of the Convention, that the prosecution should be

declared inadmissible, the Supreme Court accepted the Court of Appeal's

reasoning.

COMPLAINT

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

that the criminal charges against him have not been determined within

a reasonable time. He complains in particular about the period of time

which elapsed between 17 January 1990, when the Regional Court gave its

judgment, and 7 April 1992, when the first hearing on appeal took

place.

THE LAW

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

Convention that the criminal charges against him have not been

determined within a reasonable time.

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

relevant, provides as follows:

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

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

by a (...) tribunal (...)."

The Commission notes that the proceedings at issue started on

29 August 1989, when the applicant was taken into detention on remand,

and ended on 20 April 1993, when the Supreme Court rejected his appeal

in cassation. They thus lasted three years and almost eight months.

The question, however, arises whether or not the applicant can

still claim to be a victim of a violation within the meaning of Article

25 (Art. 25) of the Convention given the fact that the Court of Appeal,

by confining - on the sole basis of the length of the proceedings -

itself to imposing the prison sentence requested by the public

prosecutor despite its finding that this sentence was insufficient, has

implicitly acknowledged that there had been an undue delay in the

proceedings and has thus afforded redress as to the delay between the

decision of the Regional Court and the proceedings on appeal.

The Commission recalls that an applicant can no longer claim to

be a "victim" within the meaning of Article 25 (Art. 25) of the

Convention of the failure to observe the "reasonable time" requirement

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

national authorities have acknowledged either expressly or in substance

the breach of that provision and if redress has been given (cf. Eur.

Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, pp. 30-31,

para. 66; No. 10232/83, Dec. 16.12.83, D.R. 35 p. 213; and Pannetier

v. Switzerland, Comm. Report 12.7.85, paras. 86-87, D.R. 46 p. 5).

The Commission notes that the Court of Appeal, after having

recalled that the maximum penalty for manslaughter under Dutch law is

fifteen years' imprisonment and after having found that the sentence

of seven years' imprisonment requested by the public prosecutor was

insufficient, explicitly took the length of the proceedings into

account when it decided, on the sole basis of that length, not to

impose a higher sentence than the one requested by the public

prosecutor.

The Commission is, therefore, of the opinion that the judicial

authorities implicitly acknowledged a breach of Article 6 para. 1

(Art. 6-1) of the Convention and in substance afforded redress for any

damage suffered by the applicant as a result of the length of the

proceedings by imposing a lower sentence than the one it considered the

offence at issue did in fact call for.

It follows that the applicant can no longer claim to be a

"victim", within the meaning of Article 25 (Art. 25) of the Convention,

of a violation of his right to a hearing within a reasonable time as

guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention, and his

application must therefore be rejected under Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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R.E.P.L. v. THE NETHERLANDS

R.E.P.L. v. THE NETHERLANDS

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