Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12728/87

by A.

against the Netherlands

The European Commission of Human Rights sitting in private

on 10 April 1991, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. SPERDUTI

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

Mrs. G. H. THUNE

Mr. F. MARTINEZ

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 9 February 1987

by A. against the Netherlands, and registered

on 12 February 1987 under file No. 12728/87;

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 1955. He is

at present detained in a prison in The Hague. In the proceedings

before the Commission he is represented by Mrs. G. Later, a lawyer

practising in The Hague.

The facts, as submitted by the parties, may be summarised as

follows:

On 18 January 1983 the applicant was arrested and charged with

incitement to murder. He was accused of having promised money and

heroin to another person, for helping him to kill someone, and of having

supplied a description and the address of the person to be killed.

On the same day he was detained on remand.

By judgment of 17 May 1983 the Regional Court

(Arrondissementsrechtbank) of The Hague convicted the applicant and

sentenced him to twelve years' imprisonment less the time already

spent in prison pending trial.

The applicant appealed to the Court of Appeal (Gerechtshof) of

The Hague. By judgment of 29 August 1983 the Court of Appeal upheld

the judgment of the Regional Court.

The applicant introduced a plea of nullity to the Supreme

Court (Hoge Raad). By judgment of 15 January 1985 the Supreme Court

quashed the Court of Appeal's judgment on technical points and

referred the case to the Court of Appeal of Amsterdam.

On 31 May 1985 the Procurator General at Amsterdam Court of

Appeal issued a summons against the applicant. The Court of Appeal

heard the case on 28 June 1985. The applicant's request to suspend

his detention on remand was refused by the Court but his request to

suspend the hearing was granted. Before granting the suspension, the

President referred the applicant and his lawyer to Article 277a of the

Code of Criminal Procedure, which states that, if the suspect is in

pre-trial detention and the hearing is suspended, the court will as a

rule set the suspension at no more than one month. If there are

compelling reasons, however, it can set a longer period; in such cases

the reasons should be stated in the official report. The President

informed the applicant and his lawyer of the existence of a compelling

reason affecting the length of the suspension, namely that the Court

of Appeal's calendar would not permit the hearing to be resumed before

20 September 1985. The lawyer agreed to this on behalf of the

applicant.

The Court of Appeal resumed its hearing on 20 September 1985.

It refused a new request by the applicant to suspend his detention on

remand.

By judgment of 4 October 1985 the Court of Appeal convicted

the applicant and sentenced him to ten years' imprisonment less the

time already spent in prison pending trial.

The applicant introduced a plea of nullity to the Supreme

Court. He submitted, inter alia, that the length of the proceedings

exceeded "a reasonable time" within the meaning of Articles 5 para. 3

and 6 para. 1 of the Convention.

By letter of 4 February 1986 the applicant requested the Court

of Appeal of Amsterdam to suspend his detention on remand for several

weeks pending his Supreme Court appeal. The Court of Appeal suspended

his detention on remand for two weeks in April 1986. On 3 June 1986

the applicant requested the Court of Appeal of Amsterdam to suspend

his detention on remand for an additional two weeks, and for one

week-end every month. The Court of Appeal suspended the detention on

remand for two weeks in July 1986, but rejected the request to suspend

the detention on remand for one week-end every month.

On 15 September 1986 the documents concerning the case were

received by the Registry of the Supreme Court.

On 10 October 1986 the applicant requested the Court of Appeal

to release him from detention on remand, invoking, inter alia,

Articles 5 para. 3 and 6 para. 1 of the Convention. In the

alternative, he asked for suspension of the detention on remand. By

decision of 29 October 1986 the Court of Appeal rejected the requests.

By judgment of 19 May 1987 the Supreme Court dismissed the

applicant's plea of nullity. It held in respect of the period between

29 August 1983 and 15 January 1985 and the period between 15 January

1985 and 4 October 1985 that the applicant had not raised a complaint

of the length of proceedings before the Court of Appeal of Amsterdam.

Nor was the Court of Appeal bound to make an ex officio investigation

into the reasonableness of the length of proceedings, merely because

these proceedings lasted a particular length of time. It held in

respect of the period after 4 October 1985 that Articles 5 para. 3 and

6 para. 1 of the Convention had not been violated.

The applicant submitted on 4 June 1987 a request for a pardon,

which was refused on 12 November 1987 by the Deputy Minister of

Justice.

An application for review, which the applicant lodged on 28

December 1987, was declared inadmissible by the Supreme Court on 6

December 1988.

COMPLAINTS

1. The applicant complains that he has been detained on remand

for more than four years. He invokes Article 5 paras. 1 (c) and 3 of

the Convention.

2. The applicant complains that his detention on remand amounts

to inhuman treatment. He submits that during his detention on remand

he could not regularly be with his family, which is possible during

detention after conviction. The applicant invokes Article 3 of the

Convention.

3. The applicant complains that the determination of the criminal

charge against him did not take place within a reasonable time. In

particular, the first proceedings before the Supreme Court took more

than sixteen months and the proceedings before the Court of Appeal of

Amsterdam more than eight months. In addition, the applicant submits

that under Section 433 of the Dutch Code of Criminal Procedure the

documents concerning his case should have been sent to the Supreme

Court within a maximum of 54 days from the day of the decision of the

Court of Appeal. In the present case the Court of Appeal of Amsterdam

took its decision on 4 October 1985, but the documents concerning the

applicant's case were not received by the Registry of the Supreme

Court until 15 September 1986, i.e. more than eleven months later.

The Supreme Court took its final decision on 19 May 1987, i.e. more

than nineteen months after the decision of the Court of Appeal of

Amsterdam. The applicant invokes Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 February 1987 and

registered on 12 February 1987.

On 13 April 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

application limited to the issue under Article 6 para. 1 of the

Convention concerning the length of the proceedings.

The Government submitted the observations on 22 September

1989 and the applicant's observations in reply were submitted on

19 December 1989.

On 26 February 1991 the Commission decided to refer the

application to the Second Chamber.

THE LAW

1. The applicant complains that he has been detained on remand

for more than four years. The applicant invokes Article 5 paras. 1

(c) and 3 (Art. 5-1-c, 5-3) of the Convention, which read insofar as

relevant:

"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:

....

(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;

....

3. Everyone arrested or detained in accordance with the

provisions of paragraph 1(c) of this Article shall be

brought promptly before a judge or other officer authorised

by law to exercise judicial power and shall be entitled to

trial within a reasonable time or to release pending trial.

Release may be conditioned by guarantees to appear for

trial."

The Commission notes that the applicant was arrested on

18 January 1983 and was convicted at first instance on 17 May 1983.

His conviction was set aside on 15 January 1985. The applicant was

again convicted on 4 October 1985.

The Commission recalls that, for the purposes of the

Convention, a detention on remand after conviction while an appeal is

pending is detention "after conviction" within the meaning of Article

5 para. 1 (a) (Art. 5-1-a), even if the detention continues to be

considered as detention on remand under domestic law (cf. as the most

recent authority the B v. Austria judgment of 28 March 1990, Eur.

Court H.R., Series A No. 175, paras. 35-40). In the present case,

therefore, the applicant's detention on remand, under Article 5 para.

1 (c) (Art. 5-1-c), ended on 17 May 1983 when he was convicted by the

Regional Court. Subsequently he was detained as a convicted person

under Article 5 para. 1 (a) (Art. 5-1-a). On 15 January 1985 his

conviction was quashed by the Supreme Court and a new period of

detention under Article 5 para. 1 (c) (Art. 5-1-c) commenced - cf.

Herczegfalvy v. Austria, Comm. Report 1.3.91, para. 193. This

period lasted until 4 October 1985, when the applicant was again

convicted.

The Commission does not find that the period of four months

between the applicant's arrest and his first conviction exceeded a

"reasonable time" in the sense of Article 5 para. 3 (Art. 5-3) of the

Convention.

With regard to the period of eight months and 19 days between

the Supreme Court's judgment of 15 January 1985 and the applicant's

second conviction the Commission notes that, on 31 May 1985, the

Procurator General issued a summons against the applicant; that the

Court of Appeal heard the case on 28 June 1985 and granted the

applicant's request for an adjournment; that the new date fixed by the

Court (20 September 1985) was agreed with the applicant; that the

hearing was resumed on that day; and that the applicant was convicted

on 4 October 1985. In these circumstances the Commission does not

find that the second period of detention under Article 5 para. 1 (c)

(Art. 5-1-c) exceeded a reasonable time. The Commission notes

furthermore that the time the applicant was detained on remand has

been deducted from his sentence.

The Commission concludes that his complaint concerning his

detention on remand is manifestly ill-founded within the meaning of

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

2. The applicant also complains under Article 3 (Art. 3) of the

Convention that his detention on remand amounted to inhuman treatment.

He submits that during his detention on remand he could not regularly

be with his family, which is possible during detention after

conviction.

The Commission finds no issue under Article 3 (Art. 3) nor,

concerning family life, under Article 8 (Art. 8) of the Convention.

This complaint must therefore also be rejected as manifestly

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

Convention.

3. The applicant furthermore complains under Article 6 para. 1

(Art. 6-1) of the Convention that the determination of the criminal