Resolution CM/ ResDH (2010) 106 [1]

Execution of the judgment of the European Court of Human Rights

Marpa Zeeland B.V. and Metal Welding B.V. against the Netherlands

(Application No. 46300/99, judgment of 9 November 2004, final on 9 February 2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern the applicant companies ’ right of access to an appellate court and the length of the criminal proceedings brought against them (violations of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant companies the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to clos e the examination of this case.

Appendix to Resolution CM/ ResDH (2010)106

Information about the measures to comply with the judgment in the case of

Marpa Zeeland B.V. and Metal Welding B.V. against the Netherlands

Introductory case summary

The case primarily concerns the violation of the applicant companies ’ right to access to a court. The applicants were convicted in February 1994 for forgery and tax evasion. They appealed this conviction but in December 1995, following a meeting with the Advocate General, withdrew their appeal in return for his undertaking to recommend the remission of their sentence. However, their pleas for remission of sentence were dismissed in January 1997 when it was not possible to lodge a further appeal. The Court considered that the applicant companies had been denied effective access to a court and had not been able to exercise their right of appeal effectively (violation of Article 6§1)

The case also concerns the excessive length of the criminal proceedings, from October 1990 to September 1998 (violation of Article 6§1).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

7 000 EUR

4 000 EUR

11 000 EUR

Paid on 28/01/2005

b) Individual measures

According to the new legislation which entered into force on 01/01/2003, the applicants may request the reopening of criminal proceedings following the finding of a violation by the Court (Article 457 § 1 (3) of the Code on Criminal Procedure). Consequently, the Committee of Ministers considered that no further individual measures were necessary in this case.

II. General measures

Given the direct effect of the European Court ’ s judgments in the Netherlands , all authorities concerned are expected to align their practice with the present judgment. For this purpose, the judgment of the Court was published in several legal journals in the Netherlands , in particular in European Human Rights Cases (2005, No. 2) and Nederlands Juristenblad (2005, No. 49). Furthermore, the judgment was presented specifically to the Council for the Judiciary and the Public Prosecution Service.

Dutch law also provides the possibility to file a complaint against the behaviour of a member of the judiciary.

As regards the excessive length of proceedings, the Netherlands authorities recalled that in criminal cases, recognition by the domestic court that the reasonable time requirement had been violated may result in a mitigation of the penalty. The Supreme Court set out general guidelines in this respect. (Supreme Court 3 October 2000 (LJN: AA7309) and 17 June 2008 (LJN: BD2578)).

III. Conclusions of the respondent state

The government considers that the measures taken are capable of remedying the consequences for the applicants of the violations of the Convention in this case, that the general measures adopted will prevent similar violations and that the Netherlands has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 15 September 2010 at the 1092nd meeting of the Ministers’ Deputies