Published on 10 May 2021

FOURTH SECTION

Application no. 23106/19 Dirk DE JONG against the Netherlands lodged on 24 April 2019 communicated on 21 April 2021

SUBJECT MATTER OF THE CASE

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

The applicant had been reported for embezzlement in June 2011. He was questioned for the first time on 30 August 2012, but he was not summoned until 2 June 2015. The first-instance court convicted the applicant of having committed the offence of embezzlement “between 2 and 4 February 2008”, whereas the Court of Appeal found proven that he had committed that offence “between 2 February 2008 and 30 August 2012”. The applicant was sentenced to a suspended term of imprisonment as well as to a penal community service order. At no point during the proceedings did the applicant argue that the prosecution had become time-barred under the applicable statute of limitations, nor did the trial courts establish such ex officio . The applicant did not raise this issue in the written statement setting out the grounds for his appeal in cassation either. In his advisory opinion the Advocate General at the Supreme Court also made no observations to the effect that the prosecution would have become time-barred .

The Supreme Court, providing summary reasoning, found that the grounds submitted could not lead to cassation (judgment of 30 October 2018, ECLI:NL:HR:2018:2022). In addition, it conducted an ex officio examination of the impugned ruling, in which connection it set out that the right to prosecute lapsed if the statute of limitations had expired before the start of proceedings or in the course of proceedings. It described how, under the Code of Criminal Procedure, both the courts in first instance, on appeal and in cassation must examine the possible inadmissibility of the public prosecution service due to the prosecution of the offence having become time-barred; those courts ’ rulings should reflect that such examination had been conducted, inter alia , in case the public prosecution service was declared inadmissible or in case such a decision was not taken whereas a serious and direct suspicion of the public prosecution service ’ s inadmissibility arose from the case file. The Supreme Court proceeded to state that, according to current insight ( naar huidig inzicht ), an exception to this rule nevertheless applied in cassation proceedings in the situation where the statute of limitations had already expired prior to the submission of the written statement of the grounds for the cassation appeal, but where that statement did not contain a complaint about the failure of the lower court to examine that issue or to indicate in its ruling that such an examination had been carried out. However, the Supreme Court indicated that it would intervene ex officio should the expiry of the statute of limitations have occurred between the submission of the written statement and the delivery of its judgment, having regard to the fact that in that situation it would not have been possible for the appellant to raise, by means of a ground for the appeal in cassation, the issue of the public prosecution service ’ s having become inadmissible. The Supreme Court therefore concluded that in the present case it would not examine the question whether the statute of limitations had expired prior to the submission of the written statement setting out the grounds for the appeal in cassation.

In his application, the applicant holds that his prosecution was time ‑ barred because the transactions at issue had been effected in February 2008 and not afterwards, and he had only been summoned in June 2015. He submits that it was for the judicial authorities to apply the rules on limitation periods ex officio in his case. He complains that the Supreme Court ’ s judgment in which it adapted its practice concerning the ex officio application of the statute of limitations had not been foreseeable and detrimentally affected his situation, in violation of Article 7 § 1 of the Convention .

QUESTIONS TO THE PARTIES

1. Did the prosecution in the case of the applicant become time-barred? If so, on what date?

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