Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 10060/82

by François Albert Jules TABOIS

against the Netherlands

The European Commission of Human Rights sitting in private

on 3 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

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

A.V. ALMEIDA RIBEIRO

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 14 August 1982

by François Albert Jules TABOIS against the Netherlands and registered

on 19 August 1982 under file No. 10060/82;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having regard to:

- the Commission's decision of 6 March 1984 to bring the

application to the notice of the respondent Government and

invite them to submit written observations on its admissibility

and merits;

- the observations submitted by the respondent Government on

3 July 1984 and the observations in reply submitted by the

applicant on 10 September 1984;

- the Commission's decision of 15 March 1985 to adjourn its

examination of the application pending the outcome of the

domestic proceedings;

- the Commission's decision of 11 October 1990 to invite the

respondent Government to submit further observations

concerning the length of the whole criminal proceedings;

- the observations submitted by the respondent Government on

2 May 1991 and transmitted to the applicant on 16 May

for reply before 28 June 1991;

- the reminder sent to the applicant on 19 July 1991;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Dutch citizen, was born on 4 February 1948

and is presently residing in Schoorl, the Netherlands. In the

proceedings before the Commission he is represented by Mr A. van Driel,

a lawyer practising in Alkmaar.

The facts submitted by the parties may be summarised as

follows.

Until 1 May 1979 the applicant was a regional inspector for an

insurance company. In this function he committed certain fraudulous

acts, forging documents necessary to obtain mortgage-loans from the

applicant's company.

On 10 April 1979 the applicant was arrested; he was detained

on remand for a period of four days. Apparently, he immediately

confessed and offered to cooperate in the investigations to be carried

out by the police. The investigation involved 26 other suspects, some

of whom had themselves also been victims of the applicant's practices.

It appears that these investigations were concluded on 22 January

1980. A group of the numerous victims of the applicant's practices,

headed by a local lawyer, tried to reach a settlement with their

mortgagers, the former applicant's company. The public prosecutor

considered the outcome of these efforts as relevant for the

prosecution.

In December 1980 the applicant offered to render "social

services" in order to enable his case to be closed, if only

conditionally. The public prosecutor considered it advisable to wait

for a report on this possibility, which then was in an experimental

stage and became operative only in February 1981. He rejected this

alternative in May 1981. The Government contend that the public

prosecutor acted on the basis of a background report on the applicant.

The applicant was summoned to appear in court on 11 July 1981.

The applicant's lawyer had, apparently, already received a copy of

the summons on 19 June 1981.

The applicant filed an objection against this summons on

1 July 1981 with the Regional Court (Rechtbank) of Alkmaar, claiming

that more than a reasonable time had passed since his arrest in April

1979 and invoking Article 6 para. 1 of the Convention.

On 16 July 1981 the Court rejected the applicant's objection,

holding, inter alia, that the period which had elapsed before the

applicant's case was brought before the Court, although longer than

generally desirable, did not exceed the reasonable time required by

Article 6 of the Convention.

The applicant appealed from the decision of 16 July 1987 to

the Court of Appeal (Gerechtshof) of Amsterdam but his appeal was

rejected on 30 October 1981. The Court of Appeal considered, inter

alia, that the "reasonable time" as required by Article 6 para. 1 of

the Convention had not been exceeded in view of the fact that the

applicant's case was highly complex and of a serious nature. In

addition, the damage done to third parties was taken into

consideration by the Court.

The applicant appealed from this decision to the Supreme Court

(Hoge Raad). In his opinion to the Supreme Court the Advocate General

submitted that the decision of the Court of Appeal ought to be quashed

since it did not deal with the particular circumstances which had

indeed made the delay unreasonably long. But the Supreme Court did

not follow the opinion of the Advocate General and rejected the appeal

on 9 March 1982.

On 14 August 1982 the applicant applied to the European

Commission of Human Rights claiming that the summons on 11 July 1981

was in violation of Article 6 para. 1 of the Convention.

His objection to the original summons having been rejected in

three instances, a new summons was issued to the applicant on 19 August

1982 ordering him to appear in court on 21 September 1982.

The applicant, again, filed an objection against the summons

with the Regional Court of Alkmaar, arguing, inter alia, that the

case should not be brought before the Dutch courts before the

Commission had considered his complaint under Article 6 para. 1.

However, the Regional Court declared the applicant's objection

inadmissible on 5 October 1982. It held that by the Supreme Court's

rejection of the applicant's original objection against the decision

to commit him for trial that decision had become final. The Court did

not consider the pending application to the Commission to be a remedy

in the sense of the Dutch Penal Code giving suspensive effect to the

Supreme Court's decision of 9 March 1982.

The applicant appealed to the Court of Appeal of Amsterdam

which confirmed the Regional Court's decision on 31 December 1982.

The applicant appealed from this decision to the Supreme Court, but

did not make any submissions before this Court. The appeal was

rejected on 21 June 1983.

The applicant was, again, summoned, on 12 July 1984, to appear

before the Regional Court of Alkmaar on 21 August 1984.

Thereupon, the applicant requested the President of the

Regional Court of the Hague in summary proceedings (kort geding) to

either terminate or suspend the criminal proceedings against him,

pending the Commission's examination of his case. However, his

request was refused on 14 August 1984.

In the meantime, by a telex of 7 August 1984, the applicant

requested the Commission to apply Rule 36 of the Rules of Procedure

and to invite the Netherlands Government to suspend criminal

proceedings against him until the Commission would have decided on the

admissibility of the application.

On 9 August 1984 the applicant was informed that the Acting

President of the Commission had decided that the application was not

of a nature as to warrant application of Rule 36 of the Commission's

Rules of Procedure. He was also reminded that applications to the

Commission do not have any general suspensive effect with regard to

domestic proceedings.

On 21 August 1984 the Regional Court of Alkmaar, by an

interlocutory decision, rejected the applicant's request either to

declare the public prosecutor's action inadmissible or to suspend the

proceedings pending the Commission's examination of his case.

It then convicted the applicant of forgery under Article 225

of the Dutch Penal Code, which provides for a maximum penalty of six

years. The Regional Court sentenced him to a conditional prison term

of one year. In fixing this sentence it took into account the

considerable delay between the arrest of the applicant and his trial,

without establishing, however, who was responsible for this delay.

The Court also had regard to detrimental effects of the applicant's

action on his personal and social life.

As to the applicant's request to have the public prosecutor's

action declared inadmissible, the Regional Court first stated that the

Supreme Court's judgment of 9 March 1982 was the final decision on the

question of the length of the proceedings until that date so that it

could not examine the applicant's complaints about this period. The

Regional Court then held that the applicant's complaints about the

period between that decision and the summons of the public prosecutor

of 19 August 1982 could not be examined again since the Supreme Court

had given a final decision on this point on 21 June 1983. The Regional

Court finally examined the period between that last decision and the

summons of 12 July 1984. It considered that the public prosecutor had

given a satisfactory explanation and that this delay, though long, was

not unreasonable. The public prosecutor had first adjourned the case

after he had been informed that the Commission could shortly deal with

the present application. He had therefore asked the applicant's

lawyer to provide further information on the proceedings before the

Commission. In the meantime an investigation had started about new

criminal offences of which the applicant was suspected. The public

prosecutor had expected to be able to join both proceedings, but some

administrative delay had prevented him from doing so within a

reasonable time.

The public prosecutor appealed against the judgment of the

Regional Court. The applicant, thereupon, also appealed, in

particular against the Court's interlocutory decision.

On 1 July 1986 the Court of Appeal of Amsterdam found the

applicant guilty on most counts stated in the charges of the public

prosecutor. The applicant was sentenced to one year's imprisonment of

which a term of nine months was suspended. In fixing this sentence the

Court of Appeal took into account the considerable delay between the

arrest of the applicant and his trial. It also noted that the public

prosecutor's action against the applicant's co-accused had been

declared inadmissible (niet-ontvankelijk-verklaring van de Officier

van Justitie). On the other hand, the Court observed that the

fraudulous acts had been committed on a large scale. It also observed

that the applicant had been convicted twice in 1985 for other criminal

offences and that he had been convicted on the same day on charges of

forgery and cheque manipulations committed in 1983.

As to the applicant's request to have the public prosecutor's

action declared inadmissible the Court of Appeal considered that the

beginning of the period to be taken into consideration was the Supreme

Court's decision of 21 June 1983 wereby the applicant's objection

against this summons was, for the second time, rejected. It noted

that, after this last decision, the applicant was not again summoned

until 12 July 1984. It found that the applicant had repeatedly asked

the public prosecutor to postpone the examination of the criminal case

pending the decision of the European Commission of Human Rights. The

public prosecutor could not therefore be blamed for this period. The

Court of Appeal also noted that a long period had elapsed between the

appeal and its decision. It found that this period, although longer

than generally desirable, did not exceed the reasonable time required

by Article 6 of the Convention, given the seriousness of the offences

and the complexity of the facts. It further held that the length of

the proceedings was for the most part due to the applicant who had

repeatedly appealed during the proceedings or asked for postponements

of the hearings.

The applicant appealed against this decision, arguing, inter

alia, that the public prosecutor's action was inadmissible and that

the Dutch courts should have suspended the proceedings pending the

Commission's examination of his case.

On 22 September 1987 the Supreme Court rejected the

applicant's appeal, considering that the judgment of the Court of

Appeal was not unreasonable.

COMPLAINTS

The applicant complains that it took more than two years

and three months after he had been informed of criminal charges

against him until the public prosecution decided to take his case

to court. He claims that this period exceeds the "reasonable time"

guaranteed by Article 6 para. 1 of the Convention.

He submits that neither the complexity of the case, nor his

own behaviour, or that of his lawyer, justified the delay that

occurred. Moreover, as a result of the criminal charges against him he

lost his job as an insurance inspector, became the victim of a local

press campaign, and incurred severe financial losses. Since no

further action was taken against him for a considerable time after his

initial arrest, he was entitled to believe that either his case would

be discontinued unconditionally or on the condition of his rendering

certain social services, as he offered to do through the General

Rehabilitation Association (Algemene Reclasserings Vereniging). In

the meantime, he succeeded in finding a new, albeit much more modest,

employment. He feared that as a result of a public trial he would

lose his newly acquired position, irrespective of the outcome of the

trial.

In his observations in reply submitted on 10 September 1984,

the applicant also complains that, after the judgment of the Supreme

Court on 9 March 1982, he was not summoned to appear before the

Regional Court until 19 August 1982. Likewise, after the second

decision by the Supreme Court on 21 June 1983, he was not summoned

again until 12 July 1984.

The applicant finally complains that his trial took place

before the Commission had an opportunity to examine his application.

This interfered with his rights under Article 6 para. 3 (b) of the

Convention. He submits that "adequate time and facilities for the

preparation of his defence" include the opportunity to pursue an

application to the Commission without having to prepare a defence in

the criminal proceedings that he is complaining about.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 August 1982 and

registered on 19 August 1982.

The Commission decided on 6 March 1984 to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on the applicant's complaint under

Article 6 para. 1 of the Convention concerning the delays which

occurred during the preliminary investigations.

The Government's observations were received on 6 July 1984,

and the applicant's observations in reply on 14 September 1984.

In the meantime, by a telex of 7 August 1984, the applicant

requested the Commission to apply Rule 36 of the Rules of Procedure

and to invite the Netherlands Government to suspend criminal

proceedings against him until the admissibility of the application had

been determined by the Commission

On 9 August 1984 the applicant was informed that the Acting

President of the Commission had decided that the application was not

of a nature as to warrant application of Rule 36 of the Commission's

Rules of Procedure. He was also reminded that application to the

Commission do not have any general suspensive effect with regard to

domestic proceedings.

The Commission considered the possibility that in their

decision on the charges the national courts would take account of the

length of the proceedings and therefore decided on 15 March 1985 to

adjourn its examination pending the outcome of the domestic

proceedings. On 20 March 1985 the parties were informed of this

decision.

Documents concerning the domestic proceedings were received

on 2 April 1987, and on 16 March, 6 April and 4 July 1989.

On 11 October 1990, the Commission decided to invite the

respondent Government to submit further observations concerning the

length of the criminal proceedings as a whole.

The Government's observations were received on 2 May 1991 and

transmitted to the applicant on 16 May for reply before 28 June 1991.

A reminder was sent to the applicant on 19 July 1991.

THE LAW

The applicant complains that it took more than two years and

three months after he had been informed of criminal charges against

him before the public prosecution decided to take his case to court.

He claims that this period exceeds the "reasonable time" guaranteed by

Article 6 para. 1 (Art. 6-1) of the Convention, which provides :

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

everyone is entitled to a fair and public hearing within a

reasonable time...".

In order to assess the reasonableness of the length of the

proceedings the Commission must first ascertain both the commencement

and the end of the period to be taken into account. It considers that

the applicant's right to a hearing within a reasonable time came into

being on 10 April 1979 when he was arrested and therefore

substantially affected as a result of the suspicion 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 definitely 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 thus

ended on 22 September 1987 when the Supreme Court dismissed the

applicant's last appeal.

It follows that the period to be examined under Article 6

para. 1 (Art. 6-1) of the Convention lasted 8 years 5 months and 12 days.

The Government submit that the applicant cannot claim to be a

victim of a violation of Article 6 para. 1 (Art. 6-1), within the

meaning of Article 25 of the Convention. They refer to the Van

Droogenbroeck case (Eur. Court H.R., Van Droogenbroeck judgment of

24 June 1982, Series A no. 50), the Eckle case (Eur. Court H.R.,

Eckle judgment, loc. cit.) and the Commission's case law (cf.

Pannetier v. Switzerland, Comm. Report 12.7.85, D.R. 46, p. 5). The

Government recall that both the Regional Court that heard the case at

first instance and the Court of Appeal took into account the delay

which had occurred between the applicant's arrest and his conviction.

In view of this delay, the Regional Court sentenced the applicant to a

conditional prison term of one year and the Court of Appeal sentenced

him to one year's imprisonment of which a term of nine months was

suspended, while the offences charged, forgery, could lead to a

sentence of six years' imprisonment.

The Commission has examined whether the applicant can still

claim to be a victim of a violation within the meaning of Article 25

(Art. 25) of the Convention after the Dutch courts have considered as a

mitigating factor the length of the time which had elapsed between the

day when the applicant was arrested and his convictions. However, the

Commission does not find it necessary to determine this question since

the application must be rejected as manifestly ill-founded on another

ground.

According to the case-law of the Convention organs, the

reasonableness of the length of the proceedings has to be assessed in

each case according to its particular circumstances and having regard

in particular to the complexity of the case and the conduct of the

applicant and the judicial authorities (see Eur. Court H.R.,

Corigliano judgment of 10 December 1982, Series A no. 57, p. 14 para.

37).

As to the complexity of the case, the Commission notes that

the applicant was charged with fraud in what appears to be a

relatively complicated case concerning mortgages, involving numerous

victims and 26 co-suspects, some of whom had themselves also been

victims of the applicant's practices.

As to the conduct of the applicant, the Commission first notes

that the applicant objected each time he was summoned to appear in

court. It recalls that whereas Article 6 (Art. 6) does not require an

applicant to co-operate actively with the judicial authorities and

whereas no reproach can be levelled against an applicant who has made

full use of the remedies available under national law, the applicant

nevertheless is responsible for certain delays, which cannot be

attributed to the respondent State (cf. No. 4597/71, Huber v. Austria,

Comm. Rep. 8.2.73, para. 111, D.R. 2 p. 45; No. 8435/78, Dec. 6.3.82,

D.R. 26, pp. 18, 20).

The Commission also recalls that the applicant has throughout

the national proceedings asked the courts to suspend the criminal

proceedings pending the Commission's examination of his case.

Moreover, by a telex of 7 August 1984, he requested the President of

the Commission to apply Rule 36 of the Rules of Procedure and to

invite the Netherlands to suspend the criminal proceedings against him

until the admissibility of the present application had been determined

by the Commission. Furthermore, the Court of Appeal of Amsterdam

noted that the applicant had repeatedly asked to postpone the

hearings.

The Commission therefore considers that the applicant's

conduct caused long delays in the proceedings.

As to the conduct of the judicial authorities, the Commission

notes that the applicant alleges that three undue delays have occurred

during the proceedings:

a. The applicant first complains that it took more than two years

and three months after his arrest on 10 April 1979 until the public

prosecution decided to take his case to court.

The Commission considers that the manner in which the judicial

authorities conducted the case during the preliminary investigations

cannot be considered as being unjustified. As already indicated

above, the case was relatively complicated. The Commission further

observes that the public prosecutor appears to have awaited the

results of a possible settlement acceptable to all those involved in

the fraud before he brought charges. The authorities also had to

decide about the applicant's proposal of December 1980 to undergo a

period of community service, on the basis of a new Community Service

Experiment which became operative only in February 1981. In view of

the above, the Commission considers that the length of the period

between the applicant's arrest and the summons of 11 July 1981 was not

unreasonable.

b. The applicant then submits that, after the judgment of the

Supreme Court of 9 March 1982, he was not summoned to appear before

the Regional Court until 19 August 1982.

The Commission considers that this delay is not in itself

unreasonable. It further observes that the applicant never complained

about the length of this period before the Dutch courts. On the

contrary, he argued that after the judgment of 9 March 1982, the case

should not have been brought before the criminal courts before the

Commission had considered the present application introduced on 14

August 1982. Accordingly, the Commission is of the opinion that this

delay cannot be considered as being unjustified.

c. The applicant finally submits that, after the judgment of the

Supreme Court of 21 June 1983, he was not again summoned until 12 July

1984. The Commission finds that this is a lengthy period and

that such a period cannot normally be regarded as reasonable, unless

it is justified by some special feature.

The Regional Court of Alkmaar considered that this delay,

though long, was not unreasonable; the Public Prosecutor had given a

satisfactory explanation. He had first adjourned the case after he

had been informed that the Commission could shortly deal with the

present application. He therefore asked the applicant's lawyer to

provide further information on the proceedings before the Commission.

In the meantime an investigation had started about new criminal

offences of which the applicant was suspected. The public prosecutor

had expected to be able to join both proceedings, but some

administrative delays had prevented him from doing so within a

short time. The Court of Appeal of Amsterdam added that the

applicant had repeatedly asked the public prosecutor to postpone the

examination of the criminal case against him pending the decision of

the Commission.

In view of the specific reasons given by the Dutch courts, the

Commission is of the opinion that this period was not in itself

unreasonably long.

The Commission finally finds that the overall length of the

proceedings (almost eight and a half years) is indeed a long period.

However, in view of the above-mentioned circumstances, it considers

that this length is for the most part due to the applicant's conduct

and the complexity of the case. Even if some delays are attributable

to the judicial authorities, they are not so long as to warrant the

conclusion that the total duration of the proceedings was excessive,

having regard to all the circumstances of the case.

The Commission therefore concludes that the length of the

criminal proceedings against the applicant did not exceed a reasonable

time as required by Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that this part of the application is manifestly ill-founded

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

Convention.

2. The applicant has also complained that, since he was brought

before the court before the Commission had examined his present

application, he did not have adequate facilities for the preparation

of his defence. He has invoked Article 6 para. 3 (b) (Art. 6-3-b) of the

Convention, which provides:

"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 proceedings before it do not carry

any suspensive effect with regard to domestic proceedings. Moreover,

the Commission finds that the applicant has failed to substantiate his

allegations that the facilities for his defence were inadequate

because he was tried by the domestic tribunals before the Commission

had dealt with his complaints.

It follows that this part of the application is also 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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