Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20773/92

by L.v.L.

against the Netherlands

The European Commission of Human Rights sitting in private on

2 September 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. 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 29 June 1992 by

L.v.L. against the Netherlands and registered on 29 September 1992

under file No. 20773/92;

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 1948 and resident at

Bergen (NH), the Netherlands. Before the Commission he is represented

by Mr. F. van Schaik, a lawyer practising in Berkel en Rodenrijs.

The facts as presented by the applicant may be summarised as

follows.

In March 1987 the applicant was arrested on suspicion of having

imported hard drugs into the Netherlands and was detained on remand.

He was released after about ten days, but immediately arrested and

detained on remand again on the suspicion of having committed tax fraud

by intentionally having failed to declare certain earnings to the tax

authorities. On 30 June 1987 he was released from his detention on

remand on formal grounds.

By summons of 19 June 1987 the applicant was ordered to appear

before the Regional Court (Arrondissementsrechtbank) of Alkmaar on

charges of tax fraud. On 8 December 1987 the Regional Court convicted

the applicant of tax fraud and sentenced him to 2 years' imprisonment

and a fine of 20,000 Dutch Guilders. Both the applicant and the public

prosecutor appealed against this judgment to the Court of Appeal

(Gerechtshof) of Amsterdam.

The first hearing on appeal took place on 30 October 1989. In its

interlocutory judgment of 13 November 1989 the Court of Appeal decided

to reopen the investigation and to adjourn its examination for an

unspecified period pending the outcome of related tax proceedings.

These latter proceedings were pending before the tax chamber of the

Court of Appeal of Amsterdam and concerned the question whether or not

the undeclared earnings at issue constituted taxable income.

On 22 May 1990 the tax chamber of the Court of Appeal of

Amsterdam delivered two judgments in which it found the applicant's

taxable income in 1982 was not 17.097 Dutch guilders as declared by

him, but amounted to 467.097 Dutch guilders; and that his income in

1983 was not 22.233 Dutch guilders as declared by him, but amounted to

450.000 Dutch guilders.

On 19 November 1990 the Court of Appeal of Amsterdam resumed its

examination. On 3 December 1990 it convicted the applicant of tax fraud

and sentenced him to 21/2 years' imprisonment with deduction of the time

he had spent in pre-trial detention and a fine of 350,000 Dutch

guilders. The Court of Appeal imposed a shorter prison sentence than

the sentence proposed by the public prosecutor, who had requested 4

years' imprisonment. It held in this respect that:

[Dutch]

"Met de procureur-generaal is het hof van oordeel dat de in

eerste aanleg bepaalde duur van de opgelegde gevangenisstraf in

onvoldoende mate recht doet aan de ernst van het bewezene. Echter

gelet op de omstandigheid dat tussen de datum van uitspraak van

het vonnis van de rechtbank en de eerste behandeling van de zaak

in hoger beroep een onwenselijk lange periode is verstreken,

terwijl daarna bovendien nog een tussenarrest nodig bleek, zal

het hof bepalen dat aan verdachte een gevangenisstraf wordt

opgelegd van een minder lange duur dan door de procureur-generaal

is gevorderd."

[Translation]

"The Court agrees with the procurator-general that the duration

of the prison sentence imposed in first instance does not

sufficiently do justice to the seriousness of what has been

proven. However, considering that between the date of the

pronouncement of the judgment of the Regional Court and the first

hearing on appeal an undesirably long period has elapsed, and

that moreover an interlocutory judgment appeared to be necessary,

the Court will impose a shorter prison sentence than the one

demanded by the procurator-general."

The applicant's appeal in cassation was rejected by the Supreme

Court (Hoge Raad) on 10 March 1992. Insofar as the applicant complained

that the Court of Appeal had insufficiently indicated how it had taken

the violation of the "reasonable time" requirement contained in

Article 6 of the Convention into account in the determination of the

sentence, the Supreme Court noted that the Court of Appeal had not

found a violation of Article 6 of the Convention, but had taken the

unreasonably long period that had elapsed between the judgment of the

Regional Court and the first hearing on appeal into account in the

determination of the sentence. Having regard to the difference between

the sentence requested by the prosecution and the sentence imposed, the

Supreme Court found that the Court of Appeal had clearly indicated to

which extent it had taken that period into account.

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 particular in view of the time which elapsed

between the judgment of the Regional Court and the judgment of the

Court of Appeal.

THE LAW

The applicant complains that the criminal charges against him

have not been determined within a reasonable time as required by

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

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 Commission notes that the proceedings complained of started

in March 1987, when the applicant was arrested and detained on remand,

and ended on 10 March 1992 when the Supreme Court rejected his appeal

in cassation. They thus lasted about five years.

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 imposing a reduced prison sentence, has implicitly acknowledged that

the proceedings were too long and has afforded some redress as to the

delay between the judgment of the Regional Court and the proceedings

on appeal.

The Commission recalls that an applicant can no longer claim to

be a victim 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 explicitly took the

time which elapsed between the judgment of the Regional Court and the

first hearing on appeal and the adjournment of its examination into

account when it decided to impose a shorter prison sentence than the

sentence requested by the prosecution. 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 the mitigation of the

sentence imposed.

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

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) (S. TRECHSEL)

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L.v.L. v. THE NETHERLANDS

L.v.L. v. THE NETHERLANDS

LEXI