FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40171/98

by Frans Harmen BOONS

against the Netherlands

The European Court of Human Rights (First Section) , sitting on 27 June 2000 as a Chamber composed of

Mrs E. Palm, President , Mrs W. Thomassen, Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mr J. Casadevall, Mr R. Maruste, judges , and Mr M. O’Boyle, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 29 October 1997 and registered on 10 March 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1959, and was detained at the time of the introduction of the application. He is represented before the Court by Mr G. Spong , a lawyer practising in The Hague.

A. Particular circumstances of the case

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

In its judgment of 22 May 1995, the Regional Court ( Arrondissementsrechtbank ) of s’- Hertogenbosch convicted the applicant of homicide and of hiding and/or removing a body with the aim to conceal the fact and/or the cause of death. It sentenced the applicant to six years’ imprisonment. In addition, it ordered the measure that the applicant be placed at the Government’s disposal ( terbeschikkingstelling ) in order to receive mental treatment at the Government’s expense. The applicant filed an appeal with the Court of Appeal ( Gerechtshof ) of ‘s- Hertogenbosch . The prosecution did not appeal.

On 2 April 1996, following adversarial proceedings, the Court of Appeal delivered its judgment in public. With the exception of the qualification and the determination of sentence, the Court of Appeal upheld the judgment of 22 May 1995. It convicted the applicant of homicide and of hiding and removing a body with the aim to conceal the fact and/or the cause of death. The Court of Appeal sentenced the applicant to eight years’ imprisonment. It further ordered the measure that the applicant be placed at the Government’s disposal.

As regards the determination of the applicant’s sentence of imprisonment, the Court of Appeal stated:

“ In the court’s opinion another or lighter sanction than a punishment which entails unconditional deprivation of liberty of a duration stated hereinafter does not suffice. On this point, the seriousness of what has been found proven in relation to other punishable facts as, inter alia , expressed by the statutory defined maximum punishment for this and by the punishments imposed for similar facts, has been taken into account.

The court is of the opinion that a punishment as imposed by the first instance court and as sought by the procurator-general does not suffice in that it insufficiently expresses;

- the fact that the victim M. was a girl of just fifteen years old and the fact that she was related to the accused;

- the extent to which the facts found proven caused personal suffering in the victim’s family circle and to extent to which society has been rocked;

- the violent character of what has been found proven and the social unrest of which this is also a consequence. ”

The applicant filed an appeal in cassation with the Supreme Court ( Hoge Raad ). Relying on Article 6 of the Convention, he complained, inter alia , that it did not appear from the judgment of the Court of Appeal whether or not it had decided unanimously to increase his sentence. He submitted that, pursuant to Article 424 § 2 of the Code of Criminal Procedure ( Wetboek van Strafvordering ), such an increase could only be decided unanimously by the Court of Appeal. In his opinion, a convicted person should be able to verify whether this rule had in fact been respected.

The Procurator-General ( Procureur-Generaal ) to the Supreme Court, in his advisory opinion to the Supreme Court, considered on this point that it cannot be derived from the Strasbourg case-law under the Convention that there is an obligation that judgments must reflect whether the rule set out in Article 424 § 2 of the Code of Criminal Procedure has been respected. In his opinion, it concerns a rule of domestic procedural law and it is to the domestic legislator to decide whether and, if so, to what extent compliance with this rule must be apparent. Although the Procurator-General agreed with the applicant that it would be desirable that the Court of Appeal, in a situation referred to in Article 424 § 2, would make it clear in its judgment that an increase of sentence had been decided unanimously. However, he did not consider that a failure to do so should result in nullity of the judgment concerned. In his opinion, there was insufficient reason for departing from the established case-law. On this point, he found that - given the explicit reasons stated for the increase of sentence - there were no reasons to doubt whether the Court of Appeal had unanimously decided to increase the applicant’s sentence.

In its judgment of 20 May 1997 and referring to Article 101a of the Judicial Organisation Act ( Wet op de Rechterlijke Organisatie ), the Supreme Court rejected the applicant’s appeal in cassation as not prompting a determination of legal issues in the interest of legal unity and legal development.

B. Relevant domestic law and practice

With the exception of Article 472 § 2 of the Code of Criminal Procedure, which concerns decisions of the Supreme Court in relation of revision requests, there is no explicit statutory general rule in Dutch law to the effect that judicial decisions must be taken by a majority. This principle is considered to be inherent in the Dutch judicial system insofar as cases are not determined by a single judge.

A reference to judges’ deliberations is contained in Article 26 § 1 of the Judicial Organisation Act, pursuant to which provision the President of a chamber of the court must, during the judges’ deliberations, ask each of the judges individually to state his or her opinion. The President will be the last person to state his or her opinion. According to Article 26 § 2, each of the sitting judges must participate in the decision making.

However, according to Article 424 of the Code of Criminal Procedure, a unanimous decision of the judges concerned is required in three specific situations, including the situation described in paragraph 2 of this provision, which reads:

“ Where only the accused has filed an appeal, he can - as to what has been found proven against him in the first instance proceedings - only by a unanimous vote be given a higher sentence than the sentence given by the first instance court. ”

Article 424 § 2 of the Code of Criminal Procedure stipulated initially that, where only the accused had filed an appeal, no higher sentence could be imposed. This protection did, however, not apply where the appeal court reached different findings than the first instance court in relation to what facts were considered proven ( bewezenverklaring ). As it was felt incompatible with the public law character of criminal proceedings to restrict the appeal judge in the assessment of the seriousness of the offence of which an accused had been found guilty, this provision was amended on 29 November 1935 to its current wording.

In two cases, the Supreme Court rejected a complaint that the unanimity required under Article 424 § 2 of the Code of Criminal Procedure did not appear from the wording of the judgment of the Court of Appeal. The Supreme Court held that there is no statutory provision to the effect that an appeal judgment must explicitly mention that the requirement under Article 242 § 2 has been respected ( Hoge Raad 15 February 1972, Nederlandse Jurisprudentie 1972, nr . 240; and HR 10 January 1978, NJ 1978, nr . 629).

Article 101a of the Judicial Organisation Act provides:

“ If the Supreme Court considers that a complaint submitted cannot lead to cassation and does not prompt a determination of legal issues in the interest of legal unity and legal development, it can limit itself to this finding when giving the reasons of its decision on that point. ”

COMPLAINT

The applicant complains that it does not appear from the wording of the judgment of 2 April 1996 of the Court of Appeal whether the Court of Appeal has taken the decision to impose a higher sentence unanimously, as required by Article 242 § 2 of the Code of Criminal Procedure. Relying on the maxim “Justice must not only be done; it must also seen to be done”, the applicant complains that this failure is incompatible with Article 6 § 1 of the Convention, in particular the requirement that judicial proceedings should be public, which enables the general public as well the accused to control the administration of justice.

PROCEDURE

The application was introduced on 29 October 1997 and registered on 10 March 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW [Note1]

The applicant complains that it does not appear from the wording of the judgment of 2 April 1996 of the Court of Appeal whether the Court of Appeal has taken the decision to impose a higher sentence unanimously, as required under domestic law. He considers that this failure is incompatible with Article 6 § 1 of the Convention.

Article 6 § 1 of the Convention provides:

“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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

The Court observes that it has not been argued and it has not appeared that the trial proceedings or the delivery of the judgment of the Court of Appeal did not take place in public. The only element of which the applicant complains is that compliance with a domestic statutory procedural requirement as to the determination of sentence does not appear from the wording of the judgment and that, therefore, it is unclear whether this requirement has in fact been respected.

The Court recalls at the outset that , under the terms of Article 19 of the Convention, it cannot examine alleged errors of fact or law committed by national courts, except where it considers that such errors might have involved a possible violation of the rights and freedoms set forth in the Convention (cf. Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 45).

The Court considers that, although the length of a prison sentence passed by a competent court in criminal proceedings does not as such generally fall within the scope of the Convention, Article 6 § 1 of the Convention does cover the whole of the criminal proceedings in issue, including the determination of sentence (cf. T. and V. v. United Kingdom judgments of 16 December 1999, §§ 108 and 109 respectively).

It also recalls that the holding of public hearings constitutes a fundamental principle enshrined in Article 6 § 1 of the Convention. This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparant, publicity contributes to the achievement of the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society within the meaning of the Convention (cf. Diennet v. France judgment of 26 September 1995, Series A no. 325-A, p. 14, § 33).

The Court further recalls that Article 6 § 1 of the Convention obliges the courts to give reasons for their judgments, although this cannot be understood as requiring a detailed answer to every argument (cf. Hiro Balani v. Spain judgment of 9 December 1994, Series A no. 303-B, p. 29, § 27).

As to the determination of sentence in the instant case, the Court notes that, in its judgment of 2 April 1996, delivered in public following adversarial proceedings, the Court of Appeal has given explicit reasons as to the grounds on which it considered that a higher sentence was called for. As the Convention does not, as such, guarantee a right that a judicial decision on appeal to increase a sentence should be taken unanimously, the Court cannot find that the manner in which the applicant’s sentence was increased on appeal deprived him of a fair trial within the meaning of Article 6 § 1 of the Convention.

Even assuming that it might be desirable for the purposes of transparancy to indicate explicitly in judicial decisions like the one at issue that Article 242 § 2 of the Code of Criminal Procedure has been complied with, the Court cannot find that this is a right that can be derived from Article 6 of the Convention or that the failure to expressly indicate this in the wording of the judgment of 2 April 1996 affected the fairness of the criminal proceedings against the applicant considered as whole.

It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Elisabeth Palm Registrar President

[Note1] In your reasoning specify: Complaint / Article of the Convention [/ Succinct summary of Government’s submissions / Succinct summary of applicant’s submissions in communicated case] / Court’s [Commission’s] case-law, if any / Application of case-law to facts of particular case or considerations for specific facts of case.

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