CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 juillet 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 13645/88                       by Johannes BUNKATE                       against the Netherlands             The European Commission of Human Rights (Second Chamber) sitting in private on 8 July 1991, the following members being present:                 MM. S. TRECHSEL, President of the Second Chamber                   G. JÖRUNDSSON                   H.G. SCHERMERS              Mrs.   G. H. THUNE              Mr.   F. MARTINEZ RUIZ              Mrs.   J. LIDDY              MM.   J.-C. GEUS                   M.P. PELLONPÄÄ                  Mr.   K. ROGGE, Secretary to the Second Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 24 November 1987 by Johannes Maria Clemens BUNKATE against the Netherlands and registered on 7 March 1988 under file No. 13645/88;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a Dutch citizen, born in 1949 and residing in The Hague, the Netherlands.   He is a merchant.   Before the Commission he is represented by Mrs.   G.S. Koopman-Rond, a lawyer practising in The Hague.           The facts as submitted by the parties may be summarised as follows.           On 12 September 1983 the applicant was arrested in The Hague in order to stand trial on charges of fraud.   He was placed in detention on remand until 16 December 1983 when he was released by order of the Public Prosecutor (Officier van Justitie) on grounds of cell-shortage.   Preliminary investigations (gerechtelijk vooronderzoek) were held between 16 September 1983 and 19 October 1983.           On 5 January 1984 the Regional Court (Arrondissementsrechtbank) of The Hague convicted and sentenced the applicant to one year imprisonment.   The same day both the applicant and the Public Prosecutor appealed to the Court of Appeal (Gerechtshof) of The Hague.           After the decision of the Regional Court the applicant went to the Dominican Republic (7 January 1984).   During his visit he was reported dead in the Netherlands based on an official act of the competent Dominican authorities.   His death was registered in The Hague on 18 May 1984.   The applicant returned to the Netherlands on 19 November 1984.   On his behalf, his mother requested on 3 December 1984 a court order from the Regional Court of The Hague for correction of the death certificate.   On 2 October 1985 the applicant obtained this court order and the register was changed accordingly on 25 June 1986.           The hearing before the Court of Appeal concerning the applicant's appeal against the conviction and sentence started on 14 May 1985.   In its judgment of 28 May 1985 the Court of Appeal confirmed the conviction but increased the sentence of imprisonment to one year and four months.           The applicant appealed to the Supreme Court (Hoge Raad) on 10 June 1985.   The Court of Appeal transferred the case-file to the Supreme Court 151/2 months later, i.e. on 23 September 1986.   On 17 February 1987 the Attorney General (Procureur Generaal) gave his opinion and on 26 May 1987 the Supreme Court rejected the appeal.   It held, inter alia, that, although the delay between the appeal to the Supreme Court and the hearing before it was unusually long, it did not exceed the requirement of reasonable time within the meaning of Article 6 of the Convention.   It held in addition that the fact that the applicant's lawyer had regularly inquired about the progress of her client's case did not alter this conclusion, since she apparently did not request that the case be dealt with speedily.     COMPLAINTS           The applicant complains of the duration of the proceedings especially with regard to the period between the judgment of the Court of Appeal and the judgment of the Supreme Court.   He invokes Article 6 para. 1 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 24 November 1987 and registered on 7 March 1988.           On 12 October 1989 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the complaint under Article 6 para. 1 of the Convention concerning the length of the proceedings.           The Government's observations were received by letter dated 18 December 1989 and the applicant's observations were dated 1 March 1990.           On 8 January 1991 the Commission decided to refer the application to the Second Chamber.     THE LAW           The applicant complains about the length of the proceedings, in particular with regard to the period between the judgment of the Court of Appeal and the judgment of the Supreme Court, which period amounts to 2 years.   In this respect, he relies on Article 6 para. 1 (Art. 6-1) of the Convention, which reads insofar as relevant:   "1.    In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal..."   1.       The Government submit that the applicant has not exhausted domestic remedies as required by Article 26 (Art. 26) of the Convention in that he failed to invoke Article 6 (Art. 6) of the Convention before the Regional Court and the Court of Appeal respectively.           The applicant states that his complaint under Article 6 (Art. 6) concerns the length of the period between the judgment of the Court of Appeal and the judgment of the Supreme Court.           Under Article 26 (Art. 26) of the Convention the Commission may only deal with a matter after all remedies have been exhausted according to the generally recognised rules of international law.           The Commission considers that the applicant's complaint concerns essentially the length of the period between the judgment of the Court of Appeal and the judgment of the Supreme Court and that this complaint has been raised before the Supreme Court.   In these circumstances, the application cannot be declared inadmissible for non-exhaustion of domestic remedies according to Article 27 para. 3 (Art. 27-3) of the Convention.   2.       With regard to the merits of his complaint, the applicant argues that mainly the Court of Appeal was responsible for the delay, as the Supreme Court did not receive the case-file until 23 September 1986, i.e. 151/2 months after the Court of Appeal's judgment of 28 May 1985.   The applicant notes that this delay was due to illness of staff members of the Court of Appeal but he considers that in such important matters as the present one, where an individual's liberty is at stake, this does not constitute a valid excuse.   In addition, he points out that his representative has pressed for an urgent hearing before the Supreme Court on several occasions.           The Government submit that the complaint is in any event manifestly ill-founded since the Supreme Court, once it received the case-file, delivered judgment within a reasonable time and there is no evidence that the applicant's representative did press for an urgent hearing in cassation.           The Commission has taken cognizance of the parties submissions.   After a preliminary examination of the case the Commission finds that the application concerns a serious issue which must be examined on the merits.   The application cannot therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other reason for declaring the application inadmissible has been established.             For these reasons, the Commission unanimously             DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case.       Secretary to the Second Chamber        President of the Second Chamber              (K. ROGGE)                              (S. TRECHSEL)