Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19962/92

by J.D.J.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 5 July 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 22 April 1992 by

J.D.J. against the Netherlands and registered on 11 May 1992 under file

No. 19962/92;

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 Paramaribo, Surinam, in

1966 and is residing at Nijmegen, the Netherlands. Before the

Commission he is represented by Mr. M. Jankie.

The facts, as presented by the applicant, may be summarised as

follows.

On 11 June 1986 the applicant was arrested and placed in

detention on remand on the suspicion of having committed assault. He

was also charged with having reported a criminal offence, knowing this

offence had not been committed. The applicant was released shortly

after he was placed in detention on remand.

On 12 September 1988 the applicant was summoned to appear before

the Magistrate (politierechter) of the Regional Court (Arrondis-

sementsrechtbank) of Arnhem.

The hearing was to take place on 26 October 1988. However, the

applicant filed an objection (bezwaarschrift) against the summons on

two occasions. Both objections were declared inadmissible. On

4 July 1989 the Magistrate started his examination of the case.

Following a suspension, the hearing was resumed on 22 August 1989. As

the applicant had not appeared, he was declared in default of

appearance. On the same day the Magistrate convicted the applicant in

absentia of assault and false report of a criminal offence and

sentenced him to two weeks' imprisonment, suspended during a probation

period of two years, and a fine of 2.000 Dutch guilders. The applicant

filed an appeal against this judgment with the Court of Appeal

(Gerechtshof) of Arnhem.

Before the Court of Appeal the applicant, invoking Article 6

para. 1 of the Convention, argued that the prosecution should be

declared inadmissible, in view of the undue delay between his arrest

and the summons to appear.

In its judgment of 16 November 1990 the Court of Appeal quashed

the judgment of 22 August 1989, acquitted the applicant of the charge

of having falsely reported a criminal offence for lack of evidence,

convicted him of assault and sentenced him to a fine of 1.000 Dutch

guilders.

In its judgment The Court of Appeal held, inter alia, that:

"Between the aforementioned dates (11 June 1986, when the

applicant was arrested and detained on remand, 12 September 1988,

when the summons to appear before the Magistrate was served on

the applicant, and 4 July 1989, when the Magistrate started his

examination) considered in their interrelated context, the Court

finds that such a period of time has elapsed that a violation of

the aforementioned provisions, which guarantee a trial within a

reasonable time (Article 6 of the Convention and Article 14 para.

3(c) of the International Covenant on Civil and Political Rights)

has taken place. The exceeding of this reasonable time, however,

is not of such a nature that the prosecution should be declared

inadmissible. The Court will take the violation of the treaty

provisions concerned into account in the subsequent determination

of the sentence."

In the determination of the sentence the Court of Appeal held

that in view of the nature and seriousness of the offence a suspended

prison sentence of two weeks and a fine would be appropriate, but that,

in view of the unreasonable delay which had occurred in the

proceedings, only a fine of 1.000 Dutch guilders should be imposed.

In his appeal in cassation to the Supreme Court (Hoge Raad), the

applicant repeated his contention that the Court of Appeal should have

declared the prosecution inadmissible instead of merely reducing the

sentence for the violation of the "reasonable time" requirement in

Article 6 par. 1 of the Convention.

The Supreme Court rejected the appeal on 28 January 1992,

considering that the reasoning of the Court of Appeal was correct. The

Supreme Court found that, also when the "reasonable time" requirement

has been exceeded, the interest of society in maintaining legal norms

has to prevail over the interest of an accused in having the

prosecution declared inadmissible. The Supreme Court rejected the

applicant's argument that only in respect of very serious offences the

interests of society may prevail over the interests of an accused.

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 submits that the prosecution should have been

declared inadmissible, given the time which elapsed between his arrest

and detention on remand and the summons to appear before the

Magistrate.

THE LAW

The applicant alleges a violation of Article 6 para. 1

(Art. 6-1) of the Convention in that he did not have a trial within a

reasonable time. He argues that the prosecution should have been

declared inadmissible.

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 (...)."

The Commission recalls that an applicant may lose the status of

victim when the national authorities have acknowledged either expressly

or in substance, and then afforded redress for, the breach of the

Convention complained of (cf. Eur. Court H.R., Eckle judgment of

15 July 1982, Series A no. 51, p. 30, para. 66 and No. 12659/87,

Dec. 5.3.1990, D.R. 65 p. 136).

The Commission notes that the Court of Appeal, having convicted

the applicant of assault, imposed only a fine of 1.000 Dutch guilders.

The Court stated that it did not impose an additional suspended prison

sentence, which it would otherwise have considered appropriate. This

mitigation was considered as a redress for the violation of the

"reasonable time" requirement in Article 6 para. 1 (Art. 6-1) of the

Convention caused by the time which elapsed between the applicant's

arrest and the beginning of the criminal proceedings before the

Magistrate.

The Commission, noting that the applicant was acquitted of the

charge of false reporting of a criminal offence, assumes that a part

of the reduction of the sentence is attributable to this partial

acquittal.

It considers, however, even when taking the partial acquittal

into account, that the reduction resulting from the excessive length

of the proceedings is significant (cf. N.v. Germany, Comm. Rep.

12.12.83, D.R. 41 p. 35 para. 135; No. 10884/84, H. v. Germany,

Dec. 11.12.84, D.R. 41 pp. 254 f.). The Court of Appeal reduced the

sentence substantially, which cannot only be regarded as a reduction

in view of the partial acquittal for a minor offence. On the contrary,

the Court of Appeal expressly found that, in view of the nature and

seriousness of the offence of which the applicant was convicted, a

suspended prison sentence would normally be appropriate.

The Commission is therefore satisfied that in the present case

the reduction of the sentence at issue constituted adequate redress for

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

the interests at stake in the proceedings complained of.

The Commission, therefore, finds 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 Article 6 para. 1 (Art. 6-1) of the

Convention, since he received adequate redress at the domestic level.

It follows that the application is inadmissible as manifestly

ill-founded 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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J.D.J. v. THE NETHERLANDS

J.D.J. v. THE NETHERLANDS

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