THIRD SECTION

DECISION

Application no . 29388/11 Ze Carlos BORGES DE BRITO against the Netherlands

The European Court of Human Rights ( Third Section ), sitting on 15 October 2013 as a Chamber composed of:

Josep Casadevall, President, Alvina Gyulumyan, Ján Šikuta, Luis López Guerra, Kristina Pardalos, Johannes Silvis, Valeriu Griţco, judges, and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 27 April 2011 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Ze Carlos Borges de Brito , is a Netherlands national who was born in 1976. He is serving a life sentence in a prison in Alphen aan den Rijn . He was represented before the Court by Mr G. Spong , a lawyer practising in Amsterdam .

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . In the night of 18 November 2005 a group of four men consisting of the applicant and three others, armed with pistols and sub-machine guns, entered a café in Rotterdam intending to extort a sum of money from its owner. There were seven persons present in the café in addition to the owner; two others, one who had gone to retrieve his driving licence from his car and a passer-by, were forced to enter and remain inside. The armed men tied them all up with tie-wraps and adhesive tape and threatened them at gunpoint. The money not being forthcoming, the armed men shot several of their captives and set the café on fire before making their escape. The incident left three victims dead and one an invalid for life.

4 . On 26 July 2007 the Rotterdam Regional Court ( rechtbank ) convicted the applicant of murder, attempted murder, attempted extortion and unlawful deprivation of liberty, all committed in association with others. It sentenced him to life imprisonment. The applicant appealed.

5 . On 17 July 2009 the Court of Appeal ( gerechtshof ) of The Hague quashed the judgment of the Regional Court; substituting its own reasoning for that of the Regional Court, it convicted the applicant of the same crimes and again sentenced him to life imprisonment.

6 . The applicant lodged an appeal on points of law ( cassatie ) with the Supreme Court (Hoge Raad ). As relevant to the case before the Court, he complained as follows:

“[There] has been a violation of Article 6 of the Convention in that more than six months have passed between the introduction of the appeal on points of law on 17 Ju ly 2009 and the receipt of the case file by the registry of the Supreme Court on 4 March 2010, so that the reasonable time has been exceeded , which excess should result in a reduction of sentence. Given that a life sentence has been imposed, imposition of the highest possible fixed sentence is appropriate by way of reduction of sentence [emendation by the Court]. The circumstance that the excess over and above the reasonable time is relatively limited does not distract from the jurisprudentially acquired right to a reduction of sentence. Life sentence prisoners too are entitled, also on the ground of Article 26 of the International Covenant on Civil and Political Rights and Article 14 of the Convention, to equal treatment in the grant of a reduction of sentence based on exceeding the reasonable time.”

7 . The Supreme Court gave judgment on 22 February 2011 (LJN ( Landelijk Jurisprudentie Nummer , Natio nal Case-Law Database Number) BO6150) . As relevant to the case before the Court, it held as follows:

“3.2. The ground of appeal is well-founded. Moreover, the Supreme Court gives judgment after more than sixteen months have passed since the appeal on points of law was introduced. As the life sentence imposed on the [applicant] by its nature is not suitable for reduction, the Supreme Court will confine itself to the finding that the reasonable time within which judgment should have been given has been exceeded .”

B. Relevant domestic law

1. The Code of Criminal Procedure

8 . Article 365a of the Code of Criminal Procedure ( Wetboek van Strafvordering ) , taken together with Article 415, provides that as long as no appeal on points of law has been introduced the Court of Appeal need only provide a written judgment in abbreviated form (Article 365a § 1). Only if an appeal on points of law is lodged need the Court of Appeal supplement the judgment with the actual evidence relied on (Article 365a § 2); this shall be done within four months, or within three months if the defendant is in detention (Article 365a § 3).

2 . Relevant case-law

(a) The Supreme Court ’ s judgment of 3 October 2000

9 . In a judgment of 3 October 2000, LJN AA7309, Netherlands Law Reports ( Nederlandse Jurisprudentie , “NJ”) 2000, no. 721, the Supreme Court ruled that the time required to forward the complete case file to it should be taken into account in assessing compliance with the “reasonable time” requirement within the meaning of Article 6 § 1 of the Convention. The time allowed for forwarding the complete case file was “for the time being” ( vooralsnog ) set at eight months from the introduction of the appeal on points of law. If the “reasonable time” was exceeded, this should in principle lead to reduction of sentence according to guidelines set out in the Supreme Court ’ s judgment.

(b) The Supreme Court ’ s judgment of 17 June 2008

10 . In a judgment of 17 June 2008, LJN BD 2578, NJ 2008, no. 358, the Supreme Court re-stated the eight-month time-limit for forwarding the complete case file to it, and added that that time-limit would be reduced to six months if the accused was in detention on remand ( voorlopige hechtenis ) or if juvenile criminal law was applied. It also modified and refined its guidelines.

11 . If it was appropriate to reduce the sentence, whether it be a custodial sentence, a community service order ( taakstraf ) or a fine, the remission was to be:

(a) 5% if the delay had been no longer than six months beyond the “reasonable time” for the particular case;

(b) 10% if the delay had been longer than six months but less than twelve months beyond what was “reasonable”;

(c) a reduction to be determined on a case-to-case basis if the delay had been longer than that.

12 . However, in the case of a custodial sentence, the reduction should be no greater than the length of the delay, with a maximum of six months. Nor should there be any remission of a custodial sentence of which the unconditional part was less than one month, or of a sentence that by its nature was not suitable for reduction, such as a life prison sentence . In those cases the Supreme Court would reason that the finding of a violation of Article 6 § 1 of the Convention constituted sufficient compensation for any damage suffered.

3. The Pardons Act

13 . Section 2 of the Pardons Act ( Gratiewet ) provides that a pardon ( gratie ) may be granted if circumstances obtain of which the sentencing court was unaware and which, if known at the time of sentencing, would have led to the imposition of a different sentence (or non-punitive measure) or none at all; or alternatively, if it has become apparent that the execution or further execution of the sentence cannot reasonably serve any penological purpose.

COMPLAINTS

14 . The applicant complained under Article 6, both taken alone and taken together with Article 14 of the Convention, that he had not received a reduction of his sentence by way of compensation for the unreasonable length of the criminal proceedings against him, whereas such a reduction would have been available to him had he been handed a determinate sentence .

15 . He complained under Article 3 that to withhold him compensation for a violation of his human rights in the form of a reduction of his sentence rendered his punishment inhuman.

THE LAW

A. Alleged violation of Article 6 of the Convention taken together with Article 13

16 . The applicant complained of the Supreme Court ’ s failure to compensate him for the violation of the “reasonable time” requirement contained in Article 6 § 1 by reducing his sentence to a determinate one. Article 6 § 1, in its relevant part, provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

In particular, he argued that the Supreme Court ’ s position was incorrect: a life prison sentence was not irreducible, since reduction was possible by way of a pardon. However, a pardon was not granted as of right; conversely, a violation of Article 6 in principle entitled its victim to compensation.

17 . The Court observes that a violation of the “reasonable time” requirement was found by the Supreme Court itself. The applicant ’ s complaint is that the Supreme Court, by depriving itself of the possibility of offering him compensation for it, failed to offer an effective remedy.

18 . Accordingly, the Court finds that the case is more appropriately considered under Article 6 § 1 taken together with Article 13 of the Convention (see KudÅ‚a v. Poland [GC], no. 30210/96, § § 151-152 , ECHR 2000 ‑ XI ) . The latter Article provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

19 . In relation to complaints about the length of judicial proceedings, Article 13 allows a State to choose between a remedy which can expedite pending proceedings or a remedy post factum in damages for delay that has already occurred. While the former is preferred as it is preventative of delay, a compensatory remedy may be regarded as effective when the proceedings have already been excessively long and a preventative remedy did not exist ( see Kudła v. Poland [GC], cited above, § 158 , and McFarlane v. Ireland [GC] , no. 31333/06, § 108 , 10 September 2010 ).

20 . The Court has accepted a reduction of sentence as appropriate compensation where it was satisfied that the length of proceedings had been taken into account when reducing the sentence in an express and measurable manner (as to the principle, see Eckle v. Germany , 15 July 1982, § 66 , Series A no. 51 , and Beck v. Norway , no. 26390/95, § 27, 26 June 2001; as examples of such a remedy in practice, see Morby v. Luxembourg (dec.), no. 27156/02, ECHR 2003-XI; and Leif Graaskov Jensen v Denmark , no. 48470/99, 20 September 2001).

21 . Nevertheless it has not excluded alternative forms of compensation. In particular, compensation in the form of a sum of money has been found acceptable (see Mifsud v. France (dec.) [GC], §§ 16-17, Reports 2002-VIII, and Michelioudakis v. Greece , no. 54447/10 , § 77, 3 April 2012). However, the applicant has not shown any interest in monetary compensation and has not brought proceedings in order to seek any.

22 . Nor is it axiomatic that a violation of the “reasonable time” requirement contained in Article 6 § 1 entitles its victim to compensation for non-pecuniary damage suffered as a result (see, as examples involving such violations found by the Court itself, Girolami v. Italy , 19 February 1991, § 19 , Series A no. 196 ‑ E ; Abdoella v. the Netherlands , 25 November 1992, § 28 , Series A no. 248 ‑ A ; and Bunkate v. the Netherlands , 26 May 1993, § 25 , Series A no. 248 ‑ B ; as an example involving such a violation found by a domestic court, Wiredu v. the Netherlands (dec.), no. 47595/08, § 27, 10 September 2013). It should be remembered in this connection that the “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see, among many other authorities, KudÅ‚a v. Poland [GC], cited above, § 15 2; and Sürmeli v. Germany [GC], no. 75529/01, § 98 , ECHR 2006 ‑ VII ).

23 . In view of the above, the Court cannot find that Articles 6 and 13 of the Convention placed the Supreme Court under an obligation to substitute a determinate prison sentence for the applicant ’ s life sentence.

24 . It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Alleged violation of Articles 6 and 13 of the Convention taken together with Article 1 4

25 . The applicant argued that the difference made between prisoners serving a determinate sentence, who were eligible for a reduction of their sentence if a violation of the “reasonable time” requirement was found, and prisoners serving a life sentence, who were not, was discriminatory. He relied, in addition to Articles 6 and 13 of the Convention, on Article 14, which provides as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

26 . Discrimination means treating differently, without an objective and reasonable justification , persons in similar situations (see, among many other authorities, Marckx v. Belgium , 13 June 1979, § 32 , Series A no. 31 ; Moustaquim v. Belgium , 18 February 1991, § 49 , Series A no. 193 ; National & Provincial Building Society , Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom , 23 October 1997, § 88 , Reports of Judgments and Decisions 1997 ‑ VII ; D.H. and Others v. the Czech Republic [GC], no. 57325/00 , § 175, ECHR 2007 ‑ XII ; and as a recent example, Ramaer and Van Willigen v. the Netherlands (dec.), no. 34880/12, § 91, 23 October 2012).

27 . The Court points out that there is a fundamental difference between a determinate sentence of whatever length, which can be reduced by a measurable proportion, and a life sentence, which although it may be cut short by a pardon is in principle indeterminate and limited only by the life span of the convict (see Kafkaris v. Cyprus [GC], no. 21906/04 , § 165 , ECHR 2008 ). It concludes that the applicant ’ s situation is not relevantly similar to that of a prisoner serving a determinate sentence.

28 . It follows that this complaint too is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Alleged violation of Article 3 of the Convention

29 . The applicant complained that the Supreme Court ’ s failure to transform his life sentence into a determinate sentence by way of compensation for the breach of Article 6 § 1 which it had found violated Article 3 of the Convention, which provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

30 . Article 35 § 1 requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see, among many other authorities, Akdivar and Others v. Turkey , 16 September 1996, § 66 , Reports of Judgments and Decisions 1996 ‑ IV ; Fressoz and Roire v. France [GC], no. 29183/95, § 37 , ECHR 1999 ‑ I ; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 69 , 17 September 2009 ; and Sabeh El Leil v. France [GC], no. 34869/05 , § 32 , 2 9 June 2011 ) .

31 . The Court observes that the applicant did not rely on Article 3 of the Convention in his appeal on points of law, although there was nothing to prevent him from doing so. He accordingly failed to offer the Supreme Court the opportunity to pre-empt the violation now alleged.

32 . It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Marialena Tsirli Josep Casadevall Deputy Registrar President