Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17669/91

by Richard Johannes Joseph VAN LAAK

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 31 March 1993, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

M. NOWICKI

Mr. K. ROGGE, Secretary to the Second 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 30 October 1990

by Richard Johannes Joseph VAN LAAK against the Netherlands and

registered on 14 January 1991 under file No. 17669/91;

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 1952, is a Dutch citizen residing at

Escharen, the Netherlands. Before the Commission he is represented by

Mr. Th.J.H.M. Linssen and Mr. E. Beele, both lawyers practising in

Tilburg.

The facts as submitted by the applicant may be summarised as

follows.

On 27 August 1984 the applicant was summoned to appear before the

Regional Court (Arrondissementsrechtbank) of The Hague on charges of

several fraud offences. On 25 September 1984 the Regional Court

convicted the applicant of these offences and sentenced him to two

years and six months' imprisonment. The applicant appealed to the

Court of Appeal (Gerechtshof) of The Hague within the statutory time-

limit of 14 days. In November 1987 he was summoned to appear before

the Court of Appeal on 17 December 1987. The applicant, who was

hospitalised, could not attend the hearing and the Court of Appeal

stayed the proceedings for an indefinite period.

By letter of 26 January 1988 the applicant's representative

informed the Advocate-General (Advocaat-Generaal) that the applicant

had been discharged from hospital. On 3 August 1988 the applicant was

notified that a new hearing was fixed for 10 October 1988. At the

hearing the applicant's representative requested the Court of Appeal

to declare the prosecution inadmissible in view of the period of 4

years that had elapsed between filing the appeal towards the end of

September 1984 and the hearing on 10 October 1988, this delay being so

excessive that a reduction of the sentence would not suffice. The

applicant had deducted the period of hospitalisation and subsequent

recovery from half November 1987 until May 1988 considering that it

could not be attributed either to the Public Prosecution or to himself.

On 24 October 1988 the Court of Appeal upheld the applicant's

conviction but reduced the sentence to eight months' imprisonment of

which four months were suspended on probation. It found that the

Regional Court had not drawn up its judgment pending the outcome of the

criminal proceedings instituted against one of the co-suspects, that

it appeared from the file that the case was complicated and thus time-

consuming and that in addition the President of the Regional Court had

not been able to work for one year due to illness. It further found

a delay of one year between filing an appeal and the hearing acceptable

and that in cases involving several suspects, some of whom had delayed

the proceedings, an additional delay of one year could also be

accepted. However, the Court of Appeal found that, having regard to

all the circumstances of the case, the total delay, albeit exceeding

the acceptable period of two years, was not such as to exclude

prosecution and that a substantial reduction of the sentence would

therefore suffice.

On 1 May 1990 the Supreme Court (Hoge Raad) dismissed the

applicant's plea of nullity.

COMPLAINT

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

that he did not have a hearing within a reasonable time as 4 years

elapsed between his appeal to the Court of Appeal and the hearing

before this Court. He submits in particular that the delay cannot be

explained either by the complexity of the case or by his own behaviour

but that it is imputable to the judicial authorities. The illness of

the President of the Regional Court may explain but cannot justify this

delay and there is no justification for the delay which occurred after

the introduction of his appeal.

THE LAW

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

Convention that he did not have a hearing within a reasonable time as

3 years and 4 1/2 months elapsed between his appeal to the Court of

Appeal and the hearing before this Court. He submits in particular

that the delay cannot be explained either by the complexity of the case

or by his own behaviour but that it is imputable to the judicial

authorities. The illness of the President of the Regional Court may

explain but cannot justify this delay and there is no justification for

the delay which occurred after the introduction of his appeal. Article

6 para. 1 (Art. 6-1) of the Convention provides, insofar as relevant:

"In the determination of ... any criminal charge against

him, everyone is entitled to a fair ... hearing within a

reasonable time by [a] ... tribunal."

The Commission is of the opinion that the applicant's right to

a hearing within a reasonable time came into being on 27 August 1984

when he was summoned to appear before the Regional Court of The Hague

and therefore was substantially affected as a result of the suspicions

against him (cf. Eur. Court H.R., Corigliano judgment of 10 December

1982, Series A no. 57, p. 13, para. 34).

The Commission recalls that the period to be taken into

consideration lasts until acquittal or until the sentence is

definitively fixed (cf. Eur. Court H.R., Eckle judgment of 15 July

1982, Series A no. 51, p. 34, paras. 76-77). The period at issue ended

on 1 May 1990 when the Supreme Court dismissed the applicant's plea of

nullity.

The period to be examined under Article 6 para. 1 (Art. 6-1) of

the Convention thus lasted 5 years, 8 months and 4 days.

The question 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 right after the Dutch authorities have, by

a reduction of his sentence, afforded some redress as to the length of

time which had elapsed between the day when he was summoned to appear

before the Regional Court and the day when the sentence was fixed on

appeal.

The Commission and the Court have held in the past that an

applicant can no longer claim to be a victim of the failure to observe

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

the Convention if the national authorities have acknowledged either

expressly or in substance the breach of that provision and if redress

has been given (see Eur. Court H.R., Eckle judgment, loc. cit., pp. 30-

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

The Commission observes that the Court of Appeal of The Hague

explicitly took into account the time which elapsed between the

introduction of the appeal and the hearing before it when reducing the

sentence to eight months' imprisonment of which four months were

suspended on probation. The Commission is therefore of the opinion

that the Dutch authorities have, in substance, acknowledged a breach

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

further considers that the mitigation of the sentence accorded on

account of the length of the proceedings is considerable and offers

redress for the violation complained of.

It follows that the applicant cannot claim to be a victim of a

violation of his right under Article 6 para. 1 (Art. 6-1) of the

Convention to a hearing within a reasonable time and his application

is therefore inadmissible under Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the President of the

Second Chamber Second Chamber

(K. ROGGE) (S. TRECHSEL)

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VAN LAAK v. THE NETHERLANDS

VAN LAAK v. THE NETHERLANDS

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