Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19508/92

by J.D.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 13 October 1993, 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

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 28 January 1992

by J.D. against the Netherlands and registered on 11 February 1992

under file No. 19508/92;

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, born in 1963 as a Yougoslav, is a stateless person

residing in Nieuwegein, the Netherlands. Before the Commission he is

represented by Mr. E.Th. Hummels, a lawyer practising at Utrecht.

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

summarised as follows.

On 20 March 1988 the applicant, whilst driving under the

influence of alcohol, collided with another car on the motorway. He

told the driver of the car that he would not wait for the police and

drove away. The driver called the police and followed the applicant.

Eventually, three police officers forced the applicant into the kerb.

One of them, in his capacity of assistant Public Prosecutor

(Hulpofficier van Justitie), ordered the applicant to submit to a

bloodtest whilst informing him that a refusal would amount to a

criminal offence. The applicant refused to undergo the bloodtest as

he wished to go to hospital first to have his bruises examined.

The police took the applicant to the police-station, handcuffed

him and put him in a cell for five to six hours. His driving licence

was taken away and he was subsequently interrogated. He was not

brought to hospital and his alleged request to see his general

practitioner was not granted either.

Some six hours after his arrest he was released.

On 5 July 1988 the applicant was summoned to appear before the

Magistrate (Politierechter) to the Utrecht Regional Court

(Arrondissementsrechtbank) on 2 November 1988 on charges of having

committed a hit-and-run accident whilst under the influence of alcohol.

At the hearing, the applicant, relying on Article 3 of the Convention,

argued that the police submitted him to inhuman treatment by proceeding

with the investigation without bringing him first to hospital. The

Magistrate dismissed this plea on the ground that the applicant had

failed to show that he asked to be brought to hospital since from the

procès-verbal it only appeared that he asked for his general

practitioner. The applicant also stated that he had not been drunk.

The Magistrate convicted the applicant and sentenced him to two weeks'

imprisonment with a probation period of two years, a fine of 1.000,-

Dutch guilders or alternatively 20 days' imprisonment and to a 9

months' prohibition of driving with deduction of the time during which

his licence had been taken away.

Against this decision, the applicant lodged an appeal with the

Amsterdam Court of Appeal (Gerechtshof). At the hearing on 30 October

1990, the applicant complained under Article 6 para. 1 of the

Convention of the length of the proceedings. He further complained

that the police submitted him to inhuman treatment by proceeding with

the investigation without bringing him first to hospital. In its

decision of 8 November 1990, the Court of Appeal dismissed the first

complaint on the ground that although an undesirably long period had

elapsed between the filing of the appeal and the hearing before the

Court of Appeal, this period was nevertheless not unreasonably long.

As to the alleged inhuman treatment, the Court of Appeal held that the

mere fact that the applicant had asked to see his general practitioner

does not not oblige the police to stop their investigation.

The Court of Appeal upheld the conviction and the sentence

pronounced by the Regional Court.

The Supreme Court (Hoge Raad) rejected the applicant's plea of

nullity on 7 January 1993.

COMPLAINTS

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

that his case was not decided "within a reasonable time", in particular

since two years elapsed between the Magistrate's decision and the

hearing on appeal.

2. The applicant also submits that after the accident, whilst being

in pain, he was handcuffed and put in a cell for five to six hours,

despite his request to see his general practitioner. He complains that

the police, by nevertheless proceeding with the investigation after

this request, subjected him to inhuman treatment within the meaning of

Article 3 of the Convention.

THE LAW

1. The applicant also complains that his case was not decided

"within a reasonable time", in particular since two years elapsed

between the introduction of the appeal and the hearing before the Court

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

which provides insofar as relevant:

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

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

The Commission finds that further information is required

concerning this complaint. It therefore decides to give notice of this

complaint to the respondent Government in accordance with Rule 48 para.

2(b) of its Rules of Procedure and to invite them to submit their

observations in writing on the admissibility and merits of this part

of the application.

2. The applicant also submits that after the accident, whilst being

in pain, he was handcuffed and put in a cell for five to six hours,

despite his request to see his general practitioner. He complains that

the police, by nevertheless proceeding with the investigation after

this request, subjected him to inhuman treatment. He relies on Article

3 (Art. 3) of the Convention which prohibits torture and inhuman or

degrading punishment or treatment.

The Commission recalls that in order to fall within the scope of

this provision, ill-treatment must attain a minimum level of severity

(see, amongst others, No. 10142/82, Dec. 8.7.85, D.R. 42 p. 86).

It does not find that the applicant's detention in a police

station as described by him amounts to ill-treatment contrary to

Article 3 (Art. 3) of the Convention. Insofar as the applicant

complains that the police proceeded with the investigation despite his

request to see his general practitioner, the Commission notes that the

applicant wished to have his bruises examined, but does not consider

that the delay caused by the police raises an issue under Article 3

(Art. 3) of the Convention.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECIDES TO ADJOURN the examination of the applicant's complaint

concerning the length of the criminal proceedings;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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J.D. v. THE NETHERLANDS

J.D. v. THE NETHERLANDS

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