Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15057/89

by T.V.

against the Netherlands

The European Commission of Human Rights sitting in private

on 29 June 1992, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

Mr. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 February

1987 by T.V. against the Netherlands and registered on 29 May

1989 under file No. 15057/89;

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 1964. Before the

Commission he is represented by Mr. J.K. Gaasbeek, a lawyer

practising in Haarlem.

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

be summarised as follows.

On 15 September 1988, the applicant, at that time detained

on remand (bevel tot gevangenhouding), was convicted by the

Regional Court (Arrondissementsrechtbank) of Haarlem on various

counts of theft and armed robbery and sentenced to four years'

imprisonment. He was convicted, inter alia, on the basis of his

confessions to the police. He appealed to the Court of Appeal

(Gerechtshof) of Amsterdam.

Since his conviction in first instance, the applicant

remained in detention. According to the Dutch law on criminal

procedure, this period of detention is still considered as

detention on remand. Consequently, the detention had to be

regularly prolonged for a period of 30 days by the Court of

Appeal. Under Section 66 para 3 of the Code of Criminal Procedure

(Wetboek van Strafvordering), the accused shall be given the

opportunity to be heard when a decision about the prolongation

of the detention on remand is taken ("De verdachte wordt in de

gelegenheid gesteld [...] te worden gehoord").

On 12 October 1988, the Court of Appeal of Amsterdam decided

to prolong the detention of the applicant. The Court noted that

the seriousness of the case appeared from the fact that he had

been convicted in first instance of a crime for which the law

provides for the possibility of provisional detention.

On 9 November 1988, the Court of Appeal of Amsterdam

prolonged the detention of the applicant, giving the same reasons

as in its decision of 12 October 1988.

On 7 December 1988, the Court of Appeal of Amsterdam decided

to prolong the applicant's detention without hearing him.

According to the applicant, he had asked to be heard but he was

not given the opportunity to be present at the hearing. The Court

of Appeal considered that the reasons given on this point by the

Regional Court were still valid. It also pointed out that the

seriousness of the offences with which he was charged appeared

from the fact that the applicant had been convicted in first

instance of a crime for which the law provides for the

possibility of provisional detention.

On 21 December 1988, the applicant submitted an application

for release arguing that the decision of 7 December 1988 had been

taken without him being heard although he had asked to be heard.

On 11 January 1989, the Court of Appeal rejected the

applicant's request stating that it appeared from a statement by

a member of the prison staff that he had been given the

opportunity on 7 December 1988 to be heard by the Court ("omdat

is gebleken dat de verdachte op 7.12.1988 in de gelegenheid is

gesteld door het Hof gehoord te worden"). The Court also ordered

a new prolongation of the detention, recalling the seriousness

of the case and the Regional Court's judgment.

On 7 February 1989, the applicant asked the Court of Appeal

to hear two members of the prison staff in order to confirm his

statement that he had not been given the opportunity to be heard

on 7 December 1988. He also asked to have the members of the

prison staff who had given evidence against him heard in his

presence.

On 8 February 1989, the Court of Appeal decided a new

prolongation of the detention recalling the seriousness of the

case and the Regional Court's judgment. It also rejected the

applicant's objection concerning the fact that he had not been

heard on 7 December 1988, referring to its decision of 11 January

1989 ("dat het hof voor wat betreft het gevoerde verweer,

verwijst naar de beschikking van het hof d.d. 11.1.1989") and

without acceding to the applicant's request to have witnesses

heard.

On 20 March 1989, the Court of Appeal confirmed the first

instance judgment and sentence.

COMPLAINTS

1. Invoking Article 5 para. 1 of the Convention, the applicant

complains that he was not heard by the Court of Appeal on 7

December 1988 and claims that his further detention on remand was

therefore unlawful. He explains that three members of the prison

staff have confirmed, by statements made in March and April 1989,

the fact that he had not been given the opportunity to be heard

by the Court of Appeal. He therefore considers that his

detention was not in conformity with Article 5 para. 1 (c) of the

Convention.

2. Invoking Article 5 para. 4 of the Convention, the applicant

also complains of the lack of fairness of the proceedings which

have led to the Court of Appeal's decisions of 11 January and 8

February 1989. He explains that he has not had the right to

cross-examine the witness heard on 11 January 1989 and that the

Court of Appeal has refused to accede to his request of 7

February 1989 to have three members of the prison staff heard or

reheard. He therefore has not had the opportunity to

substantiate his objections to the lawfulness of his detention.

THE LAW

1. The applicant complains that his detention after 7 December

1988 was unlawful, as the Court of Appeal had failed to hear him

contrary to statutory requirements when deciding to prolong his

detention.

Article 5 para. 1 (Art. 5-1) of the Convention reads as

follows:

"1. Everyone has the right to liberty and security of

person. No one shall be deprived of his liberty save

in the following cases and in accordance with a

procedure prescribed by law:

a. the lawful detention of a person after conviction by

a competent court;

(...)

c. the lawful arrest or detention of a person effected

for the purpose of bringing him before the competent legal

authority on reasonable suspicion of having committed an

offence or when it is reasonably considered necessary to

prevent his committing an offence or fleeing after having

done so;..."

It follows from the case-law of the Convention organs that,

for the purpose of the Convention, detention while an appeal is

pending should be considered as detention "after conviction",

within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the

Convention, even if the detention continues to be considered as

detention on remand under domestic law (Eur. Court H.R. Wemhoff

judgment of 27 June 1968, Series A no. 7, p. 23-24, para. 9; No.

8555/79, Dec. 4.12.79, D.R. 20 p. 199; No. 9132/80, Dec.

16.12.82, D.R. 31 p. 154).

In the present case, the applicant has been convicted and

sentenced to four years imprisonment by the Regional Court's

judgment of 15 September 1988. For the application of the

Convention his detention on remand, under Article 5 para. 1 (c)

(Art. 5-1-c), therefore ended on this day and he was subsequently

detained as a convicted person under Article 5 para. 1 (a) (Art.

5-1-a) of the Convention. The deprivation of liberty pending the

appeal therefore has its origin in the judgment of 15 September

1988. The facts that the applicant's detention had to be

regularly prolonged for periods of 30 days by the Court of Appeal

since it was considered under Dutch law as detention on remand

does not alter this conclusion.

The Commission also wants to emphasise that there exist

important differences among the Contracting States both on the

question whether a person convicted at first instance has started

serving his sentence while an appeal is pending and on the

question of a possible or compulsory control of the detention

pending the appeal. In this regard, the Commission finds it

reasonable that the important guarantees of Article 5 para. 3

(Art. 5-3) of the Convention should not be made dependent on any

particular national situation (cf. Eur. Court H.R., B. v. Austria

judgment of 28 March 1990, Series A no. 175, pp. 15-16, para.

39).

The applicant has not complained of the judgment of 15

September 1988 and the Commission finds nothing in the case-file

to suggest that the applicant's detention resulting from this

judgment was not both "in accordance with a procedure prescribed

by law", and "lawful".

In these circumstances, the Commission finds that there is

no appearance of a violation of Article 5 para. 1 (Art. 5-1) of

the Convention.

It follows that this part of the

application must be rejected as manifestly ill-founded within the

meaning of Article 27 para 2 (Art. 27-2) of the Convention.

2. The applicant also complains of the lack of fairness of the

proceedings which have led to the Court of Appeal's decisions of

11 January and 8 February 1989 to prolong the provisional

detention.

He explains that hehas not had the right to cross-examine the

witness heard on 11 January 1989 and that the Court of Appeal had

refused to accede to his request of 7 February 1989.

Article 5 para. 4 (Art. 5-4) of the Convention reads as

follows:

"4. Everyone who is deprived of his liberty by arrest

or detention shall be entitled to take proceedings by

which the lawfulness of his detention shall be decided

speedily by a court and his release ordered if the

detention is not lawful."

However, in the case of De Wilde, Ooms and Versyp (Eur.

Court H.R., De Wilde, Ooms and Versyp judgment of 18 June 1971,

Series A no. 12, p. 40 para. 76), the Court held that Article 5

para. 4

(Art. 5-4) does not oblige the Contracting States to make

available to the person detained, a right of recourse to a court,

where the decisions depriving him of his liberty has been made

"by a court at the close of judicial proceedings. In the latter

case, the supervision required by Article 5 para. 4 (Art. 5-4)

is incorporated in the decision" (cf. also No. 12055/86, Dec.

8.9.88, unpublished).

On this point, the Commission, referring to its

consideration under Article 5 para. 1 (Art. 5-1), recalls that

the detention pending the appeal must be considered as detention

"after conviction" and that the deprivation of liberty pending

the appeal of the applicant has its origin in the judgment of 15

September 1988 by which he was convicted and sentenced to four

years' imprisonment. The judicial supervision required by

Article 5 para. 4 (Art. 5-4) was therefore incorporated in the

judgment of 15 September 1988 by the Regional Court.

It follows that this part of the application must also be

rejected as 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 Commission President of the

Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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