Published on 10 May 2021

FOURTH SECTION

Application no. 27231/19 Peter VAN DER ZWAN against the Netherlands lodged on 17 May 2019 communicated on 21 April 2021

SUBJECT MATTER OF THE CASE

The application concerns the Supreme Court ’ s adapted practice concerning the ex officio application of the statute of limitations.

On 24 April 2017 the ‘ s-Hertogenbosch Court of Appeal – quashing a judgment of the Roermond Regional Court – convicted the applicant of two offences and sentenced him to a partially suspended term of imprisonment. At no point during the proceedings before the Court of Appeal did the applicant argue that the prosecution of either of the offences had become time-barred, nor did the Court of Appeal establish such ex officio. In the written document setting out the grounds for the appeal in cassation, submitted on 4 April 2018, the applicant did not raise this issue either.

In his advisory opinion of 6 November 2018, the Advocate General at the Supreme Court observed that the second offence of which the applicant had been convicted by the Court of Appeal had become time-barred on 29 July 2016. However, taking into account the recent judgment of the Supreme Court of 30 October 2018 in which that court had announced its adapted practice (ECLI:NL:HR:2018:2022; see De Jong v. the Netherlands , no. 23106/19, notice of which application was given to the respondent Government under Rule 54 § 2 (b) of the Rules of Court on the same date as the present case), the Advocate General noted that the Supreme Court would not apply the rules on limitation periods ex officio in the instant case.

In his response to the Advocate General, the applicant noted that the Supreme Court ’ s adapted practice had not been foreseeable and that no transitional period had been established; he argued that the Supreme Court should ex officio apply the statute of limitations to the second offence of which he had been convicted.

The Supreme Court rejected the appeal in cassation. It confined the reasoning of its judgment to the grounds for the cassation appeal raised in the written statement and set out – partly explicitly and partly by means of a summary reasoning pursuant to section 81(1) of the Judiciary (Organisation) Act – why those grounds did not succeed.

The applicant complains that the Supreme Court ’ s judgment of 30 October 2018 in which it adapted its practice concerning the ex officio application of the statute of limitations had not been foreseeable and, since no transitional period was introduced, detrimentally affected the applicant ’ s situation, in violation of Article 7 § 1 of the Convention.

QUESTIONS TO THE PARTIES

1. Does the Supreme Court ’ s decision to adapt its practice concerning the ex officio application of the statute of limitations fall within the scope of Article 7 (see Orlen Lietuva Ltd. v. Lithuania , no. 45849/13 , § 97, 29 January 2019, and the references therein)?

2. If so, did the adaptation of that practice – without a transitional period – amount to a violation of Article 7 § 1 of the Convention?