Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12055/86

by Jacobus J.P. KEIJSPER

against the Netherlands

The European Commission of Human Rights sitting in private

on 8 September 1988, the following members being present:

MM. C.A. NØRGAARD, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. J. RAYMOND, Deputy 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 5 October 1984

by Jacobus J.P. KEIJSPER against the Netherlands and registered

on 19 March 1986 under file No. 12055/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, who is a Dutch citizen, was born on

25 February 1933 and is presently residing in Breda, the Netherlands.

In the proceedings before the Commission he is represented by

Mr. F.R. van der Laken, a lawyer practising in Breda.

On 5 April 1984 the Regional Court of 's-Hertogenbosch found

the applicant guilty of co-operating in drug-trafficking from the

Netherlands to the United Kingdom, which constitutes a crime

within the meaning of the Dutch Narcotics Act. The applicant was

sentenced to 18 months imprisonment.

On the same day, the applicant lodged an appeal with the Court

of Appeal in 's-Hertogenbosch.

In the meantime, the applicant's detention on remand, which

had started at some date before the Regional Court's judgment,

continued. According to Section 557 of the Code of Penal Procedure,

the execution of a judgment is suspended until after an ordinary remedy

instituted against it has been withdrawn or decided upon. The

applicant's continued detention after his conviction on 5 April 1984

was, under Dutch law, considered as detention on remand. After that

date, the periodical control of the lawfulness of the continued

detention on remand passed from the Regional Court to the Court of

Appeal.

On 24 April, 22 May, 15 June, 24 July and 21 August 1984, the

Court of Appeal, upon requests by the Attorney-General, ordered the

prolongation of the applicant's detention. At the hearings held on

the occasion of the requests by the Attorney-General, the applicant's

lawyer pleaded that his client was not guilty and that the suspicion

against his client was insufficient to justify a continuation of the

detention. He also objected to the fact that the applicant's

case-file, including the judgment of the Regional Court and the

procès-verbal of the hearing before that court, was not, at the time of

the first three orders, in the possession of the Court of Appeal or of

the Attorney-General. During the hearing on 15 June 1984, the

Attorney-General declared that the applicant's case-file had been with

the registry of the Court of Appeal at least once and that copies were

made of the most important testimonies, which show sufficient grounds

for continuation of the detention. He indicated, in particular, that

the applicant already had a criminal record and that there existed a

fear of repetition, having regard to the organised nature of the crime

of which he was suspected.

On 25 June 1984, copies of the Regional Court's judgment of

5 April 1984 were sent to the registry of the Court of Appeal.

According to the applicant, it is doubtful whether an integral text of

the judgment was at all in written form before its submission to the

registry of the Court of Appeal.

On 9 October 1984, the Court of Appeal upheld the judgment of

the Regional Court. On 4 June 1985, Supreme Court quashed this

decision on the ground that the Court of Appeal had wrongly based its

judgment on testimony which was put into doubt by a later statement of

the witness concerned.

The case was referred to the Arnhem Court of Appeal which

acquitted the applicant on 21 November 1986.

On 10 July 1987, the Arnhem Court of Appeal granted the

applicant 50,000 Dutch guilders damages in respect of the detention on

remand he has suffered.

COMPLAINTS

The applicant complains that the prolongation of his detention

on remand on 24 April, 22 May and 15 June 1984 amounts to a violation

of Article 5 paras. 3 and 4 and Article 6 para. 1 of the Convention,

since the Court of Appeal took its decisions without having recourse

to the case-file.

He alleges that the relevant proceedings before the Court

of Appeal were not fair within the meaning of Article 6 of the

Convention, because the court was not able to form an opinion on the

validity of the applicant's arguments for termination of the

detention. For the same reason, the applicant alleges that Article 5

para. 3 of the Convention was violated, since a decision to release

pending trial presupposes an assessment of the arguments for and

against on the part of the judge. Nor can there be, according to the

applicant, an acceptable decision on the lawfulness of the detention

as envisaged in Article 5 para. 4 of the Convention when the competent

court does not possess the case-file.

THE LAW

1. The applicant has alleged that the prolongation of his

detention on remand, ordered by the Court of Appeal on 24 April, 22

May and 15 June 1984 constitutes a violation of Article 5 para. 3

(Art. 5-3) of the Convention on account of the fact that the orders

were given without the Court having recourse to the case-file

concerning the applicant.

The Commission first notes that the decision complained of

concerned the applicant's detention on remand after his conviction in

first instance by the Regional Court on 5 April 1984.

It follows from the case-law of the Commission and the

European Court of Human Rights that, for the purposes of the

Convention, such a detention on remand after conviction while an

appeal is pending should be considered as detention "after conviction"

within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the

Convention, even if detention continues to be considered as detention

on remand under domestic law (Eur. Court H.R., Wemhoff judgment of 27 June

1968, Series A no. 7, p. 23-24, para. 9; No. 8555/79, Dec. 4.12.79,

D.R. 20 p. 199; No. 9132/80, Dec. 16.12.82, D.R. 31 p. 154).

In the present case, therefore, the applicant's detention

after his conviction on 5 April 1984 cannot be regarded as detention

under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention. It

follows that Article 5 para. 3 (Art. 5-3) does not apply to that

period of detention. This complaint must therefore be rejected as

incompatible ratione materiae with the provisions of the Convention

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

Convention.

2. The applicant has further complained that Article 5 para. 4

(Art. 5-4) of the Convention was violated in that the Court of Appeal

could not adequately decide upon the lawfulness of his detention since

it did not have recourse to the case-file.

However, even assuming that Article 5 para. 4 (Art. 5-4) of the

Convention is applicable to the Court of Appeal's decisions to prolong

the applicant's detention, the Commission finds that there is no

appearance of a violation of this provision since it is clear that,

for the purposes of Article 5 para. 4 (Art. 5-4), the requisite

judicial control was incorporated in the applicant's original

conviction by the Regional Court (cf. inter alia, Eur. Court H.R., De

Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p.

40, para. 76).

It follows that this part of the application must be rejected

as manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. The applicant has also complained that the Court of Appeal

could not have due regard to his arguments for the termination of his

detention since it lacked knowledge of the relevant documents. He has

alleged that the proceedings concerned were not fair within the

meaning of Article 6 (Art. 6) of the Convention.

However, the Commission notes that the proceedings complained

of concerned prolongations of the applicant's detention and that they

did not involve a determination of a criminal charge within the

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

mutandis, No. 6541/74, Dec. 18.12.74, D.R. 1 p. 82).

It follows that the proceedings complained of fall outside the

scope of Article 6 para. 1 (Art. 6-1) and that, therefore, this part of the

application is also incompatible ratione materiae with the provisions of

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

Convention.

For these reasons, the Commission,

DECLARES THE APPLICATION INADMISSIBLE

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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KEIJSPER, v. the NETHERLANDS

KEIJSPER, v. the NETHERLANDS

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