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AS TO THE ADMISSIBILITY OF

Application No. 20882/92

by José Giovannie Mangwa KOC

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting in

private on 11 may 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

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 21 August 1992 by

José Giovannie Mangwa KOC against the Netherlands and registered on

16 December 1992 under file No. 20882/92;

Having regard to the report provided for in Rule 47 of the Rules of

Procedure of the Commission;

Having regard to :

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the observations submitted by the respondent Government on

27 September 1993 and 20 January 1994, and the observations in reply

submitted by the applicant on 9 December 1993 and 1 February 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born on Aruba in 1965. At the time

of the introduction of the application the applicant was detained in the

Aruba remand centre. Before the Commission he is represented by Mr. G.

Spong, a lawyer practising in The Hague, the Netherlands.

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

summarised as follows.

On 8 March 1989 the applicant was apprehended by the police of Aruba

on the suspicion of having committed offences under the Netherlands

Antilles/Aruba Narcotics Act (Landsverordening Verdovende Middelen) and

subsequently detained on remand.

On 15 September 1989 the Court of first instance (Gerecht in eerste

aanleg) of Aruba convicted the applicant under the Netherlands

Antilles/Aruba Narcotics Act and sentenced him to eight years'

imprisonment.

On 26 June 1990 the Court of Appeal of the Netherlands Antilles and

Aruba (Gemeenschappelijk Hof van Justitie van de Nederlandse Antillen en

Aruba) quashed the judgment of 15 September 1989 and after a new

examination of the case convicted the applicant again under the

Netherlands Antilles/Aruba Narcotics Act and sentenced him to seven

years' imprisonment.

On 29 June 1990 the applicant filed an appeal in cassation with the

Supreme Court (Hoge Raad). On 11 April 1991 the Registrar to the Court

of Appeal sent the documents concerning the applicant's case to the

Supreme Court, where they were received on 15 April 1991. The Supreme

Court started its examination of the case on 14 January 1992. By judgment

of 28 April 1992 the Supreme Court rejected the appeal.

The Supreme Court examined the applicant's complaint that, in view

of the period between the introduction of his appeal in cassation and the

examination of the appeal by the Supreme Court whilst he continued to be

detained, the length of the proceedings had exceeded "a reasonable time"

within the meaning of Article 6 para. 1 of the Convention. It noted that

the period between 8 March 1989, when the applicant was apprehended and

subsequently detained on remand, and 14 January 1992, when the Supreme

Court started its examination of the applicant's appeal, was two years,

ten months and six days. The Supreme Court considered that such a period

cannot, in general, be regarded as unreasonable and that in the present

case there were no circumstances leading to a different conclusion.

COMPLAINT

The applicant complains that the criminal charges against him have

not been determined within a reasonable time as required by Article 6

para. 1 of the Convention. In particular a period of 22 months elapsed

between the submission of his appeal and the judgment of the Supreme

Court, whereas he continued to be detained. He submits that, under

Section 11 para. 3 of the Rules of Cassation for the Netherlands Antilles

(Cassatieregeling voor de Nederlandse Antillen), the Court of Appeal

should have transmitted the case-file to the Supreme Court within a time-

limit of 84 days from its judgment of 26 June 1990.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 August 1992 and registered on

16 November 1992.

On 30 June 1993 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and the merits of the

application.

The Government submitted their observations on 27 September 1993 and

the applicant's observations in reply were submitted on 9 December 1993.

By letter received on 20 January 1994 the Government submitted additional

observations. The applicant's additional observations in reply were

submitted on 1 February 1994.

THE LAW

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

Convention about the length of the criminal proceedings against him, in

particular with regard to the period of 22 months which elapsed between

the judgment of the Court of Appeal of the Netherlands Antilles and Aruba

and the judgment of the Supreme Court.

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 under Dutch law the rule concerning the

delay for the transmission of a case-file to the Supreme Court, which

rule is no longer in force, is merely a norm to be observed by the

Registrar of the court which has given the ruling from which an appeal

in cassation has been instituted. The failure to respect this norm does

not entail nullity. Moreover, the Supreme Court, once it received the

case-file, delivered judgment within a reasonable time and there is no

evidence that the applicant's counsel made any efforts to expedite the

hearing in cassation.

The applicant submits that the period which elapsed between the

judgment of the Court of Appeal of the Netherlands Antilles and Aruba and

the Supreme Court's judgment cannot be regarded as "reasonable" within

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

of this delay was the fact that the Supreme Court's Registry only

received the case-file after slightly less than ten months after the

introduction of his appeal in cassation, whereas under Section 11 para.

3 of the Rules of Cassation for the Netherlands Antilles the case-file

should have been sent to the Supreme Court within a time-limit of 84 days

from the day the Court of Appeal delivered its judgment.

Having regard to the parties' submissions and the case-law of the

Convention organs, the Commission 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 rejected as being

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, by a majority,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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KOC v. THE NETHERLANDS

KOC v. THE NETHERLANDS

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