Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12211/86 Application No. 12212/86

by Theodorus Jozephus de BONDT by Arie BIJL

against the Netherlands against the Netherlands

Session of the European Commission of Human Rights held in

camera on 6 March 1991.

Present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 11 April 1986

by Theodorus Josephus de BONDT against the Netherlands and registered

on 9 June 1986 under file No. 12211/86 and the application introduced

on 11 April 1986 by Arie BIJL against the Netherlands and registered

on 9 June 1986 under file No. 12212/86;

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

Rules of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 17 March 1989 and the observations in reply submitted by

the applicants on 24 May 1989;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is a Dutch citizen, born in 1943 and

presently residing in Meppel, the Netherlands. The second applicant

is a Dutch citizen, born in 1954 and presently residing in

's-Gravendeel, the Netherlands. The applicants are represented in the

proceedings before the Commission by Mr. G. Spong, a lawyer

practising in The Hague.

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

as follows:

On 27 March 1980 the applicants were summoned to appear before

the Regional Court (Arrondissementsrechtbank) of Rotterdam. The first

applicant, a captain of a ship, was accused of having ordered that a

stowaway of Ghanaian nationality be thrown overboard on the Bonny

river in Nigeria on 24 October 1979, after which the Ghanaian

drowned. The second applicant, a member of the crew of the ship, was

accused of having thrown the Ghanaian overboard, with the help of

other crew members.

On 10 April 1980 the Regional Court of Rotterdam convicted

the applicants and sentenced the first applicant to 42 months'

imprisonment and the second applicant to two years' imprisonment.

Both the applicants and the Public Prosecutor appealed to the

Court of Appeal (Gerechtshof) of The Hague. On 4 November 1980 the

Court confirmed both convictions but reduced the sentence of the

second applicant to one year's imprisonment.

The applicants introduced a plea of nullity with the Supreme

Court (Hoge Raad). On 2 June 1981 the Supreme Court quashed the

judgments on technical points and referred the cases to the Court of

Appeal of Amsterdam.

At this stage of the proceedings a man turned up, alleging

that he was the stowaway who had been thrown overboard.

On 2 December 1981 the Court of Appeal of Amsterdam confirmed

the judgments of the Court of Appeal of The Hague. The applicants

again introduced a plea of nullity with the Supreme Court.

On 5 October 1982 the Supreme Court quashed the judgments of

the Court of Appeal of Amsterdam on technical points and referred the

cases to the Court of Appeal of Arnhem.

The hearing of the first applicant by the Court of Appeal of

Arnhem started on 31 March 1983. It is not clear from the file when

the hearing of the second applicant started but this must have taken

place around the same time. On 14 April 1983 the Court adjourned the

first applicant's case until 9 June 1983 because on that date the

second applicant's case would be dealt with. However, on 9 June 1983

the Court adjourned both cases for an indefinite time because of

illness of the judge, who had presided during the hearing on 31 March

1983. On 8 August 1983 the hearings were resumed and on 22 August

1983 the Court of Appeal of Arnhem sentenced the first applicant to

two years' imprisonment and the second applicant to one year's

imprisonment. The Court held, inter alia, that the fact that the

criminal offence had been committed almost four years ago, should

influence the sentence.

On 23 August 1983 the applicants introduced a plea of nullity

with the Supreme Court. On 11 March 1985 the documents concerning the

cases were received by the Registry of the Supreme Court. By letter

of 14 June 1985 the Attorney-General at the Court of Appeal of Arnhem

explained to the Attorney-General at the Supreme Court that after the

death on 27 February 1985 of the President of the Chamber that had

dealt with the cases it was discovered that the documents were still

in the President's possession.

On 16 September 1985 the Supreme Court decided that the

applicants' lawyer should be enabled to take notice of the above

mentioned letter of the Attorney-General at the Court of Appeal.

In their additional plea the applicants complained, inter

alia, that the length of time that had elapsed between the delivery by

the Court of Appeal of Arnhem of the judgment of 22 August 1983 and

the sending of the documents to the Supreme Court was unreasonable.

On 10 December 1985 the Supreme Court rejected the appeals.

It held, inter alia, that the total length of the proceedings (almost

six years) did not exceed "a reasonable time" as meant in Article 6

para. 1 of the Convention, taking into account the complexity of the

case, the attitudes of the applicants, in particular their repeated

appeals, and the illness of the President of the Chamber of the Court

of Appeal that dealt with the cases. The Supreme Court also held

that, since the case had been dealt with quickly at previous stages of

the proceedings, the delay which had arisen between 23 August 1983 and

11 March 1985 could not be considered to have exceeded a reasonable

time.

On 17 April 1986, the first applicant addressed a petition for

pardon to the Queen of the Netherlands. The Court of Appeal of Arnhem

was asked to make a recommendation in connection with the petition.

The Court recommended to reduce the two years' sentence imposed on the

applicant because of the length of time which had elapsed since the

offence was committed. On 30 September 1986, the Queen reduced the

first applicant's sentence to one year's imprisonment. On 9 October

1986, the Queen granted a similar pardon to the second applicant,

reducing his sentence to imprisonment of six months.

COMPLAINTS

The applicants complain of the time that elapsed between the

decisions of the Court of Appeal of Arnhem on 22 August 1983 and the

sending of the documents of the cases to the Supreme Court. This time

amounts to almost 19 months. The applicants complain that their

hearings did not take place within a reasonable time. They invoke

Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The applications were introduced on 11 April 1986 and

registered on 9 June 1986.

The Commission decided on 12 December 1988 to bring the

applications to the notice of the respondent Government and to invite

them to submit written observations on their admissibility and merits.

The Government's observations were received on 17 March 1989

and the applicants' observations in reply on 24 May 1989.

THE LAW

The applicants complain of the time that elapsed between the

decisions of the Court of Appeal of Arnhem on 22 August 1983 and the

sending of the documents of the cases to the Supreme Court. This time

amounts to almost 19 months. The applicants complain that their

hearings did not take place within a reasonable time. They invoke

Article 6 para. 1 (Art. 6-1) of the Convention.

This provision, as far as relevant, provides:

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

against him, everyone is entitled to a fair and public

hearing within a reasonable time by an independent and

impartial tribunal established by law..."

The Government first recall that in its judgment of 10

December 1985, the Supreme Court held that the total length of the

proceedings did not exceed a reasonable time, taking into account the

complexity of the case, the attitudes of the applicants - in

particular their repeated appeals - and the illness of the President

of the Chamber of the Court of Appeal that dealt with the case. The

same Court also held that, since the case had been dealt with quickly

at previous stages of the proceedings, the delay which had arisen

between 23 August 1983 and 11 March 1985 could not be considered to be

excessive. The Government consider that the reasons put forward by the

Supreme Court should be regarded as adequate and sufficient.

The Government further submit that the first applicant was

pardonned by the Queen on 30 September 1986 and had his sentence

reduced to one year's imprisonment because of the length of time which

had elapsed since the offence was committed. Similarly the second

applicant had his sentence reduced to six months' imprisonment. The

Government therefore consider that the applicants cannot claim to be

victims of a violation of Article 6 para. 1 (Art. 6-1) of the

Convention, within the meaning of its Article 25 (Art. 25). They

refer to the Van Droogenbroeck judgment (Eur. Court H.R., Van

Droogenbroeck judgment of 24 June 1982, Series A no. 50), the Eckle

judgment (Eur. Court H.R., Eckle judgment of 15 July 1982, Series A

no. 51) and the Commission's case-law (cf. Pannetier v. Switzerland,

Comm. Report 12.7.85, D.R. 46 p. 5).

The applicants state that the fact that the proceedings had

been conducted quickly in the initial stages cannot justify the 19

months' delay which occurred between the judgment of the Court of

Appeal of Arnhem and the sending of the documents of the cases to the

Supreme Court. They recall that the Dutch authorities were completely

inactive during this long period and that they took no step to

accelerate the proceedings on this point.

The applicants further allege that they are still victims of

the violation of Article 6 para. 1 (Art. 6-1) of the Convention, even

though part of their sentences was later remitted by way of a pardon.

They maintain that according to the nature of the offences charged,

the proper redress for the excessive length of the proceedings would

have been to declare the public prosecutor's action inadmissible

(niet- ontvankelijkheid van het Openbaar Ministerie).

The Commission is of the opinion that the applicants' right to

a hearing within a reasonable time came into being on 27 March 1980

when they were summoned to appear before the Regional Court of

Rotterdam and therefore substantially affected as a result of the

suspicions against them (cf. Eur. Court H.R., Corigliano judgment of

10 December 1982, Series A no. 57, p. 13 para. 34).

The Commission recalls the period to be taken into

consideration lasts until acquittal or until the sentence is

definitely fixed (cf. Eur. Court H.R., Eckle judgment loc. cit., p. 34

paras. 76, 77). The period at issue ended on 10 December 1985 when

the Supreme Court dismissed the applicants' last appeal.

The period to be examined under Article 6 para. 1 (Art. 6-1)

of the Convention thus lasted 5 years, 8 months and 13 days.

The question arises whether or not the applicants can still

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

(Art. 25) of their Convention right after the Dutch authorities have

compensated, by a reduction of their sentences, the length of time

which had elapsed between the day when the offence was committed and

the day when the sentence was fixed.

The Commission and the Court have held in the past that an

applicant can no longer claim to be a victim of the failure to observe

the "reasonable time" requirement in Article 6 para. 1 (Art. 6-1) of

the Convention if the national authorities have acknowledged either

expressly or in substance the breach of that provision and if redress

has been given (see Eur. Court H.R., Eckle judgment, loc. cit., pp.

30-31 para. 66 ; No. 10232/83, Dec. 16.12.83, D.R. 35 p. 213).

The Commission observes that the decisions granting the pardon

took into account the time which had elapsed since the offences were

committed when reducing the sentences respectively to one year's and

six months' imprisonment, while the Court of Appeal of Arnhem had

already taken into account, in its judgment of 23 August 1983, the

fact that the criminal offences had been committed almost four years

before. The Commission observes that though it has not been clearly

said in the decisions of 30 September 1986 and 9 October 1986 that the

reduction of the sentence was based on the length of the procedure, it

can be said from the facts that this length was the main - if not the

only - reason of the measure of pardon. The Commission also notes

that the final sentences - respectively of one year's and six months'

imprisonment - appear to be very lenient when one considers the nature

of the offences charged, which could under Dutch law lead to a

sentence of 20 years imprisonment. The Commission is therefore of the

opinion that the Dutch authorities have, in substance, acknowledged a

breach of Article 6 para. 1 (Art. 6-1) of the Convention. The

Commission further considers that in the circumstances of the present

cases the mitigation of the sentences accorded on account of the

length of the proceedings is measurable, and cannot, like in the Eckle

case, simply be considered as an inverifiable declaration of good

intent.

It follows that the applicants cannot claim to be victims of a

violation of their right under Article 6 para. 1 (Art. 6-1) of the

Convention to a hearing within a reasonable time and their

applications are therefore 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

DECIDES TO JOIN THE APPLICATIONS 12211/86 & 12212/86;

DECLARES THE APPLICATIONS INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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DE BONDT ; BIJL v. THE NETHERLANDS

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