Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 10808/84

by S.

against the Netherlands

The European Commission of Human Rights sitting in private

on 7 May 188, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 12 August 1983

by S. against the Netherlands and registered on 8 February 1984 under

file No. 10808/84;

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

Rules of Procedure of the Commission;

- the decision of 11 March 1985 to communicate the

application for observations on its admissibility and merits;

- the Government's observations of 29 May 1985 and the

applicant's reply of 21 June 1985;

- the decision of 18 October 1985 to adjourn the examination

of the case;

- the decision of 14 October 1987 to request further

observations;

- the Government's supplementary observations of

26 November 1987 and the applicant's reply of 18 December 1987;

Having deliberated;

Decides as follows:

THE FACTS

The facts which appear not to be in dispute between the

parties may be summarised as follows:

The applicant is a Dutch citizen, born in 1924 and at present

residing at V., the Netherlands.

In the proceedings before the Commission he is represented by

Mr. J. Slangen, a lawyer practising in V.

Until 15 January 1979 when he had a serious car accident and

had to spend several months in a hospital, the applicant was working

as a legal adviser. On 8 February 1979 an administrator was appointed

with a view to reaching a compromise with the applicant's creditors.

As apparently no such compromise could be reached, the applicant was

adjudged bankrupt on 22 February 1979.

On 19 and 26 March 1979 the V. Municipal Police received

two written requests for an investigation into the applicant's

activities on the ground that money belonging to the informers had

allegedly been embezzled by him. Consequently, investigations against

the applicant were started and it was discovered that many other

people who had entrusted considerable sums of money to the applicant

in the course of the last four years might also be victims of

embezzlement. These injured parties were heard in the course of the

investigation.

On 11 February 1980 the applicant was arrested and questioned

by the police in V. on suspicion of embezzlement of Dfl. 550,000.-

He was released after several days.

On 15 February 1980 the R. Public Prosecutor applied for

a preliminary judicial examination and on 21 August 1980 the R.

Regional Court (Arrondissementsrechtbank) summoned the applicant to

stand trial on the following day. The applicant raised objections

against the summons arguing that the investigations had lasted too

long and invoking his bad health. The Regional Court rejected these

objections on 28 August 1980 and decided that the applicant be tried

(verwijzing naar de terechzitting).

The applicant, thereupon, appealed against this decision to

the Court of Appeal (Gerechtshof) of H. but his appeal, was, after the

hearing, rejected on 1 October 1980.

The applicant then appealed to the Supreme Court (Hoge Raad).

By the end of 1980 the applicant was treated for three months

in a psychiatric hospital as a result of his wife's death on

11 April 1980, his car accident and other factors, mainly the criminal

proceedings.

On 10 February 1981 it was discovered that the prosecution

file had been lost. A duplicate prosecution file had to be drawn up

to replace the missing file.

On 15 June 1982, the Supreme Court quashed the decision of the

Court of Appeal of H. on the formal ground that the procès-verbal of

the hearing of 1 October 1980 was not included in the case file. The

Supreme Court, therefore, referred the applicant's original appeal to

the Court of Appeal of A. to be again decided. Thereupon, on 17

December 1982, the Court of Appeal of A. rejected the applicant's

appeal. The court considered, inter alia, that, although the

disappearance of the applicant's file was to the applicant's detriment

insofar as irreplaceable documents were at issue, the defence could

base itself on the documents in the "reconstructed" file.

Furthermore, the court found the applicant's allegation that

he was summoned only the night before the Regional Court's hearing on

21 August 1980 to be unfounded, since the applicant's initial

objections to the summons had been introduced three weeks before the

hearing and because the applicant's lawyer, apparently, had not, at

the time, objected to the time limit within which the applicant was

summoned.

With regard to the applicant's complaints under Art. 6

para. 1 of the Convention that the requirement of a "reasonable time"

was not met, the court held, that although it could be admitted to the

applicant that the period of time which had elapsed, particularly

between the decision of the Court of Appeal of 's Hertogenbosch of 1

October 1980 and the decision of the Supreme Court of 15 June 1982,

had been longer than desirable, this did not, in connection with the

particular circumstances of the case, amount to a violation of the

above provision. In addition, the court noted that the delay was a

direct result of the objections which the applicant filed against his

summons, and which demanded a closer examination of the applicant's

personal circumstances, with the possible suspension of proceedings

pending improvement of the applicant's health, rather than a decision

to terminate the criminal proceedings against the applicant.

The applicant, thereupon, again appealed to the Supreme Court,

but his appeal was rejected on 21 June 1983. The Court held, with

regard to the applicant's complaints under Art. 6 para. 1 of the

Convention, that although the delay resulting from the disappearance

of the file could not be attributed to the applicant, the Court of

Appeal decided without violating the said provision of the Convention

that a delay of a year and eight and a half months did not imply that

the applicant's case would not be decided within a reasonable time.

Meanwhile, pending the applicant's last appeal to the Supreme

Court, he was summoned on 28 March 1983 to appear before the Regional

Court of Roermond on 19 April 1983. The summons was however withdrawn

on 8 April 1983.

The applicant, subsequently, initiated summary proceedings

(Kort geding) before the President of the Regional Court of the Hague

to obtain a decision that he would not be summoned again until the

Commission would have decided on his complaints. However, on

4 October 1983, the President rejected the applicant's request.

On 10 November 1983 the applicant was again summoned and on

24 November he was convicted of embezzlement committed between

1 January 1976 and 11 February 1980. He was sentenced to one year

imprisonment. The applicant did not attend his trial.

His appeal against conviction and sentence, lodged on

13 Februry 1983, was rejected by the 's-Hertogenbosch Court of Appeal

on 13 May 1985 after a hearing on 29 April 1985 which the applicant did

not attend.

On 24 May 1985 the applicant lodged an appeal in cassation.

The appellate court's written judgment became available in September 1986.

The appellate court stated, inter alia, that the period which

elapsed since criminal proceedings were instituted against the

applicant (11.2.1980) was considerably longer than desirable, but this

did not lead to the conclusion that the case had not been dealt with

within a reasonable time within the meaning of, inter alia, Article 6

of the Convention. As regards the period from February 1980 to June

1983, the appellate court referred to the reasons given by the Supreme

Court in its decision of 21 June 1983. As regards the subsequent

period, the appellate court considered that its length was mainly due

to the fact that the applicant lodged an appeal and requested an

adjournment of the hearing of his appeal on account of his bad state

of health. As regards the sentence, the appellate court stated that

the length of the proceedings was partly not attributable to the

applicant and had been considered as a mitigating factor.

On 31 March 1987 the Supreme Court dismissed the appeal in

cassation.

COMPLAINTS

The applicant complains about the length of the criminal

proceedings against him and argues that as a result he did not have a

fair trial within the meaning of Article 6 para. 1 of the Convention.

He alleges that the loss of the original file on his case rendered an

adequate defence impossible and, consequently, infringed upon the

principle of "equality of arms". He further alleges defects in the

decisions of the Regional Court of Roermond of 28 August 1980 and the

Court of Appeal of 's-Hertogenbosch of 1 October 1980.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 August 1983 and

registered on 8 February 1984. On 11 March 1985 the Commission

decided to communicate the case to the respondent Government for

observations on its admissibility and merits.

On 12 July 1985 the applicant was granted legal aid.

The Government's observations were submitted on 29 May 1985,

the applicant's observations in reply on 21 July 1985.

On 18 October 1985 the Commission adjourned the examination of

the case pending the outcome of the domestic appeal proceedings.

On 14 October 1987 the Commission decided to reject a request

made by the applicant on 14 September 1987 to take measures in

accordance with Rule 36 of the Commission's Rules of Procedure with

a view to stopping the execution of sentence. The Commission decided

to invite the parties to submit further observations. The Government

submitted further observations on 26 November 1987 and the applicant

replied on 18 December 1987.

SUMMARY OF THE PARTIES' OBSERVATIONS

1. The Government

It is first submitted that before the applicant's arrest on

11 February 1980 no measures were taken which might have

"substantially" affected his situation. This was also held by the

's-Hertogenbosch Court of Appeal.

As regards the pretrial investigations it is pointed out that

a large number of injured parties had to be heard and the applicant's

activities during the preceding four years had to be examined.

Another reason for the length of the investigation proceedings was

that, owing to the applicant's illness, it took the administrator in

the applicant's bankruptcy a certain time to supply a number of

relevant details such as the number and identity of all injured

parties.

As regards the length of the proceedings judged as a whole, it

is admitted that the proceedings were unusually and undesirably

protracted and that this was partly due to the loss of the case file,

which was consequently not available for approximately twenty months.

It was, however, mainly the applicant himself who substantially

prolonged the proceedings objecting to or appealing against every

decision which was not in his favour. While he was entitled to do so

the State could not be held responsible for the delays resulting

therefrom. Thus, about sixteen months had to be imputed to the

applicant's objections against the summons for his trial. Also

the period between his conviction in absentia on 24 November 1983 and

the hearing of his appeal on 29 April 1985 was entirely attributable to

the applicant whose defence counsel had requested a postponement of

the appeal hearing on account of the applicant's bad state of health.

Taking into account the delays caused by the applicant, it had to be

concluded that the case was disposed of up to the higher judicial

level within a reasonable time.

2. The Applicant

The applicant denies that the investigations covered a period

of four years. He submits that his difficulties started in 1977

when he was himself the victim of blackmail. After his car accident

in January 1979 his family furnished to the administrator a complete

list of the amounts of moneys embezzled and the names and addresses of

the clients concerned. The applicant himself allegedly confessed his

mistakes to the administrator. Consequently, all relevant facts were

known already by the end of February 1979. At that time the

administrator told him that criminal investigations against him had

started. However, as all facts were known in February 1979 these

investigations lasted for too long and therefore he objected to the

summons which he received one and a half years later.

The proceedings relating to his objection against the summons

were likewise unduly delayed, mainly on account of the disappearance

of the case file. In these circumstances, taking into account

the unreasonable length of the proceedings and the loss of important

documents which could not be replaced he should not have been tried as

an adequate defence and a fair trial was no longer possible.

Therefore, and not only because of his bad state of health, he did not

attend his trial. Also, after his conviction he requested the

adjournment of the appeal proceedings not only because of his bad

health but because he had submitted his case to the Commission

considering that it would violate his human rights if the criminal

proceedings were continued.

The appeal proceedings of more than three years were likewise

excessively long. There was no explanation why the appellate court's

decision of 13 May 1985 was not available in writing before September 1986.

Even taking into account the time which would normally have

been needed to deal with all the remedies of which he availed himself,

the applicant considers that the charges levied against him could and

should have been determined by final judgment before the end of 1982.

THE LAW

The applicant complains that the time taken to examine the

charges exceeded the reasonable time referred to in Article 6 para. 1

(Art. 6-1) of the Convention.

That article provides that "in the determination of his civil

rights and obligations or 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".

In the present case it appears from the allegations of the

parties that the date of the commencement of the proceedings instituted

against the applicant is at the latest the date on which he was

arrested, namely 11 February 1980. The proceedings were terminated on

31 March 1987 when the applicant's appeal to the Supreme Court against

conviction and sentence was dismissed and the trial court's judgment

became final.

On the basis of those dates the proceedings therefore lasted a

full seven years.

The Government submitted that the regrettably long duration of

the proceedings was mainly due to the applicant who availed himself of

all possible remedies in order to avoid having to stand trial. Also

after his conviction, in first instance, he asked to adjourn the appeal

proceedings on account of his bad health.

The applicant argued that despite the remedies lodged by him,

the proceedings were unreasonably delayed by the authorities who could

and should have brought him to trial much earlier.

The applicant also considered that the loss of the case file caused

an important delay and that the appeal proceedings were, inter alia,

delayed by the fact that the appellate court's judgment of 13 May 1985

did not become available in writing before September 1986.

In the light of the foregoing, the Commission considers that

the application raises complex issues of law and facts under the

Convention, the determination of which should depend on an examination

of the merits of the application.

It follows that these complaints cannot be declared manifestly

ill-founded and are therefore admissible, no other ground for

inadmissibility having been established.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE without prejudging the

merits.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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S. v. THE NETHERLANDS

S. v. THE NETHERLANDS

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