Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14502/89

by Henricus Johannes DANKERS

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 September 1992, 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

L. LOUCAIDES

J.-C. GEUS

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 5 December 1988

by Henricus Johannes DANKERS against the Netherlands and registered on

5 January 1989 under file No. 14502/89;

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 1933 and residing in

Goirle, the Netherlands. He has been a director of a construction

company. Before the Commission the applicant is represented by

E.Th. Hummels, a lawyer practising in Utrecht.

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

summarised as follows.

On 25 October 1983, the Eindhoven municipal police drew up an

official report on the applicant concerning a charge of libel.

On 18 November 1983 the applicant was summoned to appear before

the Magistrate (politierechter) on 25 November 1983 on the charge of

having libelled three State officials. At this hearing the applicant

requested that his case be adjourned as he wished to call a number of

witnesses to be examined by the investigating judge (rechter-

commissaris). He also requested that his case be referred to the full

bench division of the Regional Court (Arrondissementsrechtbank). The

applicant's requests were granted and his case was adjourned for an

unspecified period of time.

On 15 August 1984 the applicant was summoned to appear on

20 November 1984 before the full bench of the Regional Court of

's-Hertogenbosch. On 20 November 1984, at the applicant's request, the

proceedings were adjourned in order to hear two witnesses who had not

appeared. Following a hearing on 12 April 1985, the Regional Court,

on 26 April 1985, convicted and sentenced the applicant for libel.

On 8 May 1985 the applicant filed an appeal against this judgment

with the Court of Appeal (Gerechtshof) of 's-Hertogenbosch.

Also by judgment of 26 April 1985 the Regional Court of

's-Hertogenbosch acquitted the applicant in respect of an alleged

violation of Article 31 of the Copyright Act (Auteurswet).

On 10 May 1985 the public prosecutor filed an appeal against the

acquittal with the Court of Appeal of 's-Hertogenbosch.

On 23 October 1985 the Regional Court of Breda convicted and

sentenced the applicant for an offence against the Road Traffic Act

(Wegenverkeerswet). On 4 November 1985 the applicant filed an appeal

against this judgment.

The Attorney General (procureur-generaal) at the 's-Hertogenbosch

Court of Appeal joined the three appeals in order to facilitate a

simultaneous hearing of these criminal cases pending against the

applicant before the Court of Appeal. On 24 October 1986 the Attorney

General submitted the applicant's file to the President of the Court

of Appeal, requesting him to determine a date for the hearings.

Due to the Court of Appeal's backlog in criminal cases, it set

certain priorities. Cases, in which the accused was in pre-trial

detention, were dealt with first and subsequently the remaining cases

in order of the registration date.

Following a hearing on 26 January 1987, the Court of Appeal on

9 February 1987 quashed the Regional Court's judgment of 26 April 1985

for procedural reasons and following a new examination of the facts and

evidence convicted and sentenced the applicant for libel. The Court

of Appeal rejected the applicant's complaint under Article 6 of the

Convention that his case had not been heard within a reasonable time.

The Court considered that in this case it could not be said that solely

on account of the passing of time the appeal had not been heard within

a reasonable time and that there were no special circumstances which

would justify a different conclusion.

The applicant's subsequent appeal to the Supreme Court (Hoge

Raad) was rejected on 21 June 1988. The Supreme Court held, inter

alia, that the delay between the judgment of the Regional Court and the

judgment of the Court of Appeal was not unreasonably long and

subscribed to the Court of Appeal's reasoning on this point.

COMPLAINT

The applicant complains that the delay between his appeal against

the judgment of the Regional Court of 's-Hertogenbosch of 26 April 1985

and the judgment of the Court of Appeal of 9 February 1987, i.e. one

year and nine months, violates the requirement of "reasonable time" set

forth in Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 December 1988 and registered

on 5 January 1989.

On 20 October 1989 the respondent Government was invited,

pursuant to Rule 40 para. 2 (a) (former version) of the Commission's

Rules of Procedure, to submit factual information on matters connected

with the application.

The Government submitted their information on 27 November 1989

and the applicant's comments on this information were submitted on 4

January 1990.

On 17 October 1991 the Commission, acting under Rule 48

para. 2 (b) of its Rules of Procedure, decided to invite the Government

to submit written observations on the admissibility and merits of the

application.

The Government submitted their observations on 6 January 1992 and

the applicant's observations in reply were submitted on

27 February 1992.

On 30 March 1992 the Commission referred the application to the

Second Chamber.

THE LAW

The applicant complains that the delay between his appeal against

the judgment of 26 April 1985 by the Regional Court of 's-Hertogenbosch

and the judgment of 9 February 1987 by the Court of Appeal of

's-Hertogenbosch violates the requirement of "reasonable time" within

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

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

relevant, provides 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 Government submit that the Attorney General joined the three

criminal cases pending against the applicant before the Court of

Appeal, in order that these cases might all be dealt with at the same

time. The Government further state there was an additional problem,

in that, despite various measures taken a few years earlier at

organisational and staffing levels, the Court of Appeal had an

excessively full schedule as a result of an accumulated backlog in

criminal proceedings. This backlog resulted in priorities being set,

cases in which the accused was in pre-trial detention being dealt with

first, and then the remaining cases in order of the date of

registration.

The Government agree with the Supreme Court's finding that the

criminal case against the applicant was heard within a reasonable time.

The applicant is of the opinion that it was a relatively

straightforward case, which was fully prepared for a hearing on appeal.

The Commission recalls that the case-law of the Convention organs

in respect of the length of proceedings is based on the fundamental

principle that the reasonableness of the length of proceedings is to

be determined by reference to the particular circumstances of the case

(cf. Eur. Court H.R., Obermeier judgment of 28 June 1990, Series A

no. 179, para. 72).

As regards the Court of Appeal's schedule, the Commission recalls

that under Article 6 para. 1 (Art. 6-1) of the Convention everyone has

the right to a final decision within a reasonable time in the

determination of a criminal charge against him. It is for the

Contracting Parties to organise their legal systems in such a way that

their courts can meet this requirement (cf. Eur. Court H.R., Vocaturo

judgment of 24 May 1991, Series A no. 206-C, para. 17).

In the present case, the Commission notes that the applicant's

appeal at issue was joined with two other appeals concerning criminal

charges against the applicant, which were also pending before the same

Court of Appeal. The Commission further notes that the libel charges

against the applicant were completely re-examined by the Court of

Appeal.

The Commission considers that those circumstances may have had

a certain influence on the duration of the criminal proceedings against

the applicant and that a delay such as the one at issue is, in general,

undesirable. However, having regard to all the circumstances of the

case the period complained of is not so long as to warrant the

conclusion that the total duration of the proceedings was excessive

(cf. mutatis mutandis Eur. Court H.R., Vernillo judgment of

20 February 1991, Series A no. 198, para. 39).

The Commission is, therefore, of the opinion that the examination

of the case does not disclose that the criminal charges against the

applicant were not determined within a reasonable time within the

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

It follows that the application is manifestly ill-founded within

the meaning of 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 Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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DANKERS v. THE NETHERLANDS

DANKERS v. THE NETHERLANDS

LEXI