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AS TO THE ADMISSIBILITY OF

Application No. 13645/88

by Johannes BUNKATE

against the Netherlands

The European Commission of Human Rights (Second Chamber)

sitting in private on 8 July 1991, the following members being

present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

H.G. SCHERMERS

Mrs. G. H. THUNE

Mr. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

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 24 November

1987 by Johannes Maria Clemens BUNKATE against the Netherlands and

registered on 7 March 1988 under file No. 13645/88;

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 1949 and residing in

The Hague, the Netherlands. He is a merchant. Before the Commission

he is represented by Mrs. G.S. Koopman-Rond, a lawyer practising in

The Hague.

The facts as submitted by the parties may be summarised as

follows.

On 12 September 1983 the applicant was arrested in The Hague

in order to stand trial on charges of fraud. He was placed in

detention on remand until 16 December 1983 when he was released by

order of the Public Prosecutor (Officier van Justitie) on grounds of

cell-shortage. Preliminary investigations (gerechtelijk

vooronderzoek) were held between 16 September 1983 and 19 October 1983.

On 5 January 1984 the Regional Court (Arrondissementsrechtbank)

of The Hague convicted and sentenced the applicant to one year

imprisonment. The same day both the applicant and the Public

Prosecutor appealed to the Court of Appeal (Gerechtshof) of The Hague.

After the decision of the Regional Court the applicant went to

the Dominican Republic (7 January 1984). During his visit he was

reported dead in the Netherlands based on an official act of the

competent Dominican authorities. His death was registered in The

Hague on 18 May 1984. The applicant returned to the Netherlands on 19

November 1984. On his behalf, his mother requested on 3 December 1984

a court order from the Regional Court of The Hague for correction of

the death certificate. On 2 October 1985 the applicant obtained this

court order and the register was changed accordingly on 25 June 1986.

The hearing before the Court of Appeal concerning the

applicant's appeal against the conviction and sentence started on

14 May 1985. In its judgment of 28 May 1985 the Court of Appeal

confirmed the conviction but increased the sentence of imprisonment to

one year and four months.

The applicant appealed to the Supreme Court (Hoge Raad) on

10 June 1985. The Court of Appeal transferred the case-file to the

Supreme Court 151/2 months later, i.e. on 23 September 1986. On 17

February 1987 the Attorney General (Procureur Generaal) gave his

opinion and on 26 May 1987 the Supreme Court rejected the appeal. It

held, inter alia, that, although the delay between the appeal to the

Supreme Court and the hearing before it was unusually long, it did not

exceed the requirement of reasonable time within the meaning of

Article 6 of the Convention. It held in addition that the fact that

the applicant's lawyer had regularly inquired about the progress of

her client's case did not alter this conclusion, since she apparently

did not request that the case be dealt with speedily.

COMPLAINTS

The applicant complains of the duration of the proceedings

especially with regard to the period between the judgment of the Court

of Appeal and the judgment of the Supreme Court. He invokes Article 6

para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 November 1987 and

registered on 7 March 1988.

On 12 October 1989 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the complaint

under Article 6 para. 1 of the Convention concerning the length of the

proceedings.

The Government's observations were received by letter dated 18

December 1989 and the applicant's observations were dated 1 March 1990.

On 8 January 1991 the Commission decided to refer the

application to the Second Chamber.

THE LAW

The applicant complains about the length of the proceedings,

in particular with regard to the period between the judgment of the

Court of Appeal and the judgment of the Supreme Court, which period

amounts to 2 years. In this respect, he relies on Article 6 para. 1

(Art. 6-1) of the Convention, which reads insofar as relevant:

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

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

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

1. The Government submit that the applicant has not exhausted

domestic remedies as required by Article 26 (Art. 26) of the

Convention in that he failed to invoke Article 6 (Art. 6) of the

Convention before the Regional Court and the Court of Appeal

respectively.

The applicant states that his complaint under Article 6

(Art. 6) concerns the length of the period between the judgment of the

Court of Appeal and the judgment of the Supreme Court.

Under Article 26 (Art. 26) of the Convention the Commission

may only deal with a matter after all remedies have been exhausted

according to the generally recognised rules of international law.

The Commission considers that the applicant's complaint

concerns essentially the length of the period between the judgment of

the Court of Appeal and the judgment of the Supreme Court and that

this complaint has been raised before the Supreme Court. In these

circumstances, the application cannot be declared inadmissible for

non-exhaustion of domestic remedies according to Article 27 para. 3

(Art. 27-3) of the Convention.

2. With regard to the merits of his complaint, the applicant

argues that mainly the Court of Appeal was responsible for the delay,

as the Supreme Court did not receive the case-file until 23 September

1986, i.e. 151/2 months after the Court of Appeal's judgment of 28 May

1985. The applicant notes that this delay was due to illness of staff

members of the Court of Appeal but he considers that in such important

matters as the present one, where an individual's liberty is at stake,

this does not constitute a valid excuse. In addition, he points out

that his representative has pressed for an urgent hearing before the

Supreme Court on several occasions.

The Government submit that the complaint is in any event

manifestly ill-founded since the Supreme Court, once it received the

case-file, delivered judgment within a reasonable time and there is no

evidence that the applicant's representative did press for an urgent

hearing in cassation.

The Commission has taken cognizance of the parties

submissions. After a preliminary examination of the case the

Commission finds that the application concerns a serious issue which

must be examined on the merits. The application cannot therefore be

rejected as being manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention. No other reason for

declaring the application inadmissible has been established.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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BUNKATE v. THE NETHERLANDS

BUNKATE v. THE NETHERLANDS

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