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C. v. THE NETHERLANDS

Doc ref: 15643/89 • ECHR ID: 001-1747

Document date: May 19, 1992

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Cited paragraphs: 0
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C. v. THE NETHERLANDS

Doc ref: 15643/89 • ECHR ID: 001-1747

Document date: May 19, 1992

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 15643/89

by J.C.

against the Netherlands

The European Commission of Human Rights sitting in private on 19

May 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

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 23 August 1989 by

J.C. against the Netherlands and registered on 18 October 1989 under

file No. 15643/89;

Having regard to the Commission's decisions of 7 November 1990

and 17 October 1991 to request information from the applicant and the

applicant's replies of 18 December 1990, 7 November 1991 and 28 January

1992;

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 1955, is a Dutch citizen residing at

Zevenaar, the Netherlands. He is unemployed. Before the Commission

he is represented by Mr. G. Spong, a lawyer practising in The Hague.

The facts as submitted by the applicant may be summarised as

follows.

On 3 April 1986, the applicant was convicted of fraud and

sentenced to eight months' imprisonment, of which four months

conditional, by the Arnhem Regional Court (Arrondissementsrechtbank).

He appealed. In an interlocutory judgment of 2 March 1987, the Arnhem

Court of Appeal (Gerechtshof) ordered the Arnhem Probation and

After-Care Organisation (Stichting Reclassering) to draw up a report

concerning the possibilities for the applicant's social resettlement.

On 25 May 1987, in a further interlocutory judgment, the Court

of Appeal decided that the applicant should carry out service

activities (dienstverlenende werkzaamheden) as an alternative penalty

and that the Probation and After-Care Organisation should report on

their progress. A report of 11/4 pages, dated 18 January 1988, was

submitted to the Court sometime between 18 January 1988 and 21 March

1988. It mentioned the fact that the applicant had discontinued his

service activities after two days alleging that there was insufficient

work for him to do. The report further stated that the probation

officer (reclasseringsambtenaar) had extensively discussed this problem

with the applicant. The report concludes that, in view of the

applicant's negative attitude and the probation officer's efforts to

help him, it would not be advisable to grant the applicant a second

opportunity to perform service activities.

On 21 March 1988 at the hearing before the Court of Appeal, the

applicant declared that he "just received" the report and that he

disagreed with parts of it. Counsel for the applicant requested the

Court to adjourn the hearing in order to have the report clarified by

the probation officer concerned. The Court of Appeal rejected this

request and confirmed the Regional Court's judgment by decision of 31

March 1988.

On 2 May 1989 the Supreme Court (Hoge Raad) dismissed the

applicant's plea of nullity on the ground that the Court of Appeal had

not deprived the applicant of the possibility of preparing his defence

by refusing to adjourn the hearing.

COMPLAINTS

The applicant complains under Article 6 para. 3 (b) of the

Convention that he did not have adequate time for the preparation of

his defence before the Court of Appeal.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 August 1989 and registered

on 18 October 1989.

On 7 November 1990 the Commission decided to ask additional

information from the applicant. The applicant's reply was received by

letter dated 18 December 1990.

On 17 October 1991 the Commission decided to ask further

information from the applicant. The applicant submitted the information

on 7 November 1991 and 28 January 1992.

THE LAW

The applicant complains that the Court of Appeal's refusal to

adjourn the hearing in order to have the report on the applicant

clarified violated his rights of defence in that he had insufficient

time to prepare his defence. He invokes Article 6 para. 3 (b)

(Art. 6-3-b) which reads:

"3. Everyone charged with a criminal offence has the

following minimum rights: ...

(b) to have adequate time and facilities for the

preparation of his defence ..."

The Commission recalls that the determination of a criminal

charge, within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention, includes not only the determination of the guilt or

innocence of the accused, but also in principle the determination of

his sentence; and the expression "everyone charged with a criminal

offence" in Article 6 para. 3 (Art. 6-3) includes persons who, although

already convicted, have not been sentenced (No. 4623/70, Dec. 9.2.72,

Collection 39, p. 66, 74).

In this respect the Commission notes that the report drawn up by

the Probation and After-Care Organisation was relevant to the

determination of the penalty to be imposed on the applicant and that

the Court of Appeal took the report into account for that purpose.

The Commission notes, however, that notwithstanding the

Commission's explicit requests for further clarification of the

question when he or his representative received the report or which

were the points of the report with which he disagreed, the applicant

failed to substantiate his complaint.

It follows that the application must be rejected for being

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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