Information Note on the Court’s case-law 69

November 2004

Marpa Zeeland B.V. and Metal Welding B.V. v. the Netherlands - 46300/99

Judgment 9.11.2004 [Section II]

Article 6

Criminal proceedings

Article 6-1

Access to court

Withdrawal of appeals upon agreement with Advocate General that sentence would be remitted: violation

Facts : The applicant companies were investigated on suspicion of forgery and tax fraud. In February 1994, following a three-year preliminary judicial investigation and a trial, they were convicted by the Regional Court. A fine was imposed on the companies and their managing director was sentenced to imprisonment. The applicant companie s lodged appeals. However, they subsequently withdrew them, allegedly because the Advocate General had persuaded them to do so on an undertaking that he would recommend that their sentences be remitted. A Court of Appeal judgment of December 1995 noted tha t the appeals had been withdrawn. Despite the agreement, the Advocate General did not advise favourably on the remission of the fines imposed on the applicant companies. The applicants’ requests for remission of sentence were rejected in January 1997.  As a result, the applicants lodged new appeals with the Court of Appeal against their initial conviction and sentence, which were allowed by that court. However, the Supreme Court considered the newly lodged appeals could not be admitted, as the judgment of D ecember 1995, which had established the applicants’ formal withdrawal of appeals against their first-instance conviction by the Regional Court, had not been appealed against within the statutory time-limit and had thus become final.

Law : Article 6 § 1 (ac cess to court) – Referring to the findings of the domestic courts, the Court accepted that the Advocate General had persuaded the applicant companies managing director to withdraw the appeals on improper grounds. As domestic law foresaw that appeals were t o be instituted within 14 days of a judgment being delivered, and this had not been done concerning the Court of Appeal judgment of December 1995, the withdrawal of the appeals had become irrevocable and left the applicant companies with neither remission of sentence or the possibility to argue the case on appeal. In these circumstances, the applicants had been denied effective access to court and were not able to employ their right of appeal in a meaningful manner.

Conclusion : violation (unanimously).

Art icle 6 § 1 (reasonable time) – The period to be taken into consideration had started in October 1990, when the companies’ premises had been searched, and ended in September 1998, when the Supreme Court declared the appeals inadmissible. Excluding the perio ds when the courts had dealt with the requests for remission of sentence, which were not to be considered given that during those periods there was no determination of a criminal charge, the total period had lasted six years, nine months and 14 days. The p reliminary investigation phase had lasted over three years, whilst, on the contrary, the proceedings before the courts had been conducted with relative speed. Overall, the length of the proceedings had been excessive.

Conclusion : violation (unanimously).

Article 41 – The Court awarded the applicant companies 7,000 euros for non-pecuniary damage. It also made an award for costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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