CEDH · CASELAW;REPORTS;ENG — 1 avril 1992

.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 } .s76CF415B { page-break-before:always; clear:both }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                               SECOND CHAMBER                          Application No. 13645/88                                 BUNKATE J.                                     against                                 the NETHERLANDS                            REPORT OF THE COMMISSION                           adopted on 1 April 1992                              TABLE OF CONTENTS                                                                 Page   I.       INTRODUCTION         (paras. 1-16) .........................................    1           A.       The application                 (paras. 2-5) ..................................    1           B.       The proceedings                 (paras. 6-11) .................................    1           C.       The present Report                 (paras. 12-16) ................................    2     II.      ESTABLISHMENT OF THE FACTS         (paras. 17-21) ........................................    3     III.     OPINION OF THE COMMISSION         (paras.   22-36) .......................................    4-5           A.       Complaint declared admissible (para. 22) ......    4           B.       Point at issue (para. 23) .....................    4           C.       General considerations                 (paras. 24-25) ................................    4           D.       Determination and assessment of the length of                 the proceedings (paras. 26-34) ................    4-5           G.       Conclusion (para. 35) .........................    5     APPENDIX I       :   HISTORY OF THE PROCEEDINGS ..................   6   APPENDIX II      :   DECISION ON THE ADMISSIBILITY ...............   7                             I.     INTRODUCTION     1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.     The application   2.     The applicant is a Dutch citizen, born in 1949 and residing in The Hague, the Netherlands.   Before the Commission the applicant is represented by Mrs. G.S. Koopman-Rond, a lawyer practising in The Hague.   3.     The application is directed against the Netherlands.   The respondent Government are represented by their Agent, Mrs. D.S. van Heukelom, succeeded by Mr. Karel de Vey Mestdagh, both of the Netherlands Ministry of Foreign Affairs.   4.     The application concerns the complaint under Article 6 para. 1 of the Convention about the length of criminal proceedings.   These proceedings started on 12 September 1983 when the applicant was arrested on charges of forgery and ended on 26 May 1987 with the Supreme Court's decision to reject the applicant's appeal in cassation.   5.     Before the Commission the applicant complains of the length of the proceedings and alleges a violation of Article 6 para. 1 of the Convention.     B.     The proceedings   6.     The application was introduced on 24 November 1987 and registered on 7 March 1988 under file No. 13645/88.   On 12 October 1989 the Commission decided to give notice of the application to the respondent Government, inviting them to submit observations in writing on the admissibility and merits of the application.   7.     The Government submitted their observations on 18 December 1989 and the applicant replied on 1 March 1990.   The applicant was granted free legal aid on 18 May 1990.   8.     The Commission referred the application to the Second Chamber on 8 January 1991.   9.     On 8 July 1991 the Commission (Second Chamber) declared the applicant's complaint under Article 6 para. 1 of the Convention as to the length of the proceedings admissible.   10.    On 15 July 1991 the parties were invited, should they so desire, to submit further observations regarding the merits of the application. They did not avail themselves of this possibility.   11.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1(b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which such a settlement can be effected.     C.     The present Report   12.    The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 para. 1 of the Convention and after deliberations and votes, the following members being present:                MM. S. TRECHSEL, President of the Second Chamber                  G. JÖRUNDSSON                  A. WEITZEL                  J.C. SOYER                  H.G. SCHERMERS                  H. DANELIUS             Mrs. G. H. THUNE             MM.   F. MARTINEZ RUIZ                  L. LOUCAIDES                  J.-C. GEUS                  A.V. ALMEIDA RIBEIRO     13.    The text of this Report was adopted by the Commission on 1 April 1992 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is:         a)    to establish the facts, and         b)    to state an opinion as to whether the facts            found disclose a breach by the State concerned            of its obligations under the Convention.   15.    A schedule setting out the history of the proceedings before the Commission is attached hereto as APPENDIX I and the Commission's decision on the admissibility of the application as APPENDIX II.   16.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.                         II.   ESTABLISHMENT OF THE FACTS   17.    On 12 September 1983 the applicant was arrested in The Hague on suspicion of having committed forgery.   He was placed in detention on remand until 16 December 1983 when he was released by order by 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.   18.    On 5 January 1984 the Regional Court (Arrondissementsrechtbank) of The Hague convicted the applicant and sentenced him to one year's imprisonment.   On the same day both the applicant and the Public Prosecutor appealed to the Court of Appeal (Gerechtshof) of The Hague.   19.    After the judgment of the Regional Court the applicant went to the Dominican Republic on 7 January 1984.   During his visit he was reported dead in the Netherlands on the basis of an official document issued by 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.   20.    The hearing before the Court of Appeal concerning the applicant's appeal against his 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.   21.    The applicant appealed to the Supreme Court (Hoge Raad) on 10 June 1985.   The Court of Appeal transmitted the case-file to the Supreme Court 15½ months later, i.e. on 23 September 1986.   On 17 February 1987 the Attorney General (Procureur Generaal) filed his submissions 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 para. 1 of the Convention. This conclusion was not altered by the fact that the applicant's lawyer had regularly inquired about the progress of the case, since she had apparently not requested that the case be dealt with speedily.         It is disputed between the parties whether the applicant's representative did press for an urgent hearing in cassation.                         III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   22.    The Commission has declared admissible the applicant's complaint under Article 6 para. 1 (Art. 6-1) of the Convention concerning the length of the criminal proceedings against him.     B.     Point at issue   23.    The point at issue is accordingly whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.     C.     General considerations   24.    Article 6 para. 1 (Art. 6-1) first sentence of the Convention stipulates:         "In the determination of ... any criminal charge against       him, everyone is entitled to a ... hearing within a       reasonable time by a ... tribunal established by law."   25.    The three criteria established by the case-law of the European Commission and Court of Human Rights for assessing whether or not the length of proceedings has been reasonable are the complexity of the case, the conduct of the applicant and the conduct of the competent authorities (see Eur. Court H.R., Kemmache judgment of 27 November 1991, Series A no. 218, para. 60).     D.     Determination and assessment of the length of the proceedings   26.    The proceedings at issue began on 12 September 1983, when the applicant was arrested and charged with forgery.   They ended with the Supreme Court's decision of 26 May 1987 to reject the applicant's appeal in cassation.   27.    The total length of proceedings thus comes to 3 years, 8 months and 14 days.   28.    According to the applicant, this lapse of time and in particular the time between the decision of the Court of Appeal (28 May 1985) and the decision of the Supreme Court (26 May 1987), i.e. 2 years, cannot be regarded as "reasonable" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. His representative pressed on several occasions for an urgent hearing before the Supreme Court and illness of staff members of the Court of Appeal is not a valid justification for this delay.   29.    The Government submit that the delay is essentially due to illness of the Court of Appeal's staff members. Therefore the period between the decision of the Court of Appeal and the decision of the Supreme Court, although long, was not unreasonable.   The Government contest that the applicant's representative pressed for an urgent hearing in cassation.   30.    The Commission notes that the first instance and the appeal proceedings lasted for 20½ months.   In view of the circumstances described above (paras. 17-20) it does not find this period unreasonably long.   31.    The proceedings before the Supreme Court lasted about 2 years.   31.    The Commission does not consider that the issue before the Supreme Court was of such complexity as to justify the length of the proceedings.   32.    As regards the conduct of the parties it notes that the applicant filed an appeal in cassation on 10 June 1985 but that the Court of Appeal did not forward the case-file to the Supreme Court until 23 September 1986, i.e. 1 year 3 months and 13 days later.   The Attorney General filed his submissions on 17 February 1987 and the Supreme Court rendered its judgment on 26 May 1987, i.e. nearly 2 years after the introduction of the appeal in cassation.   33.    The Commission observes that, under Section 433 of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering), the documents concerning the case should have been sent to the Supreme Court within a maximum of 54 days from the day of the decision of the Court of Appeal (cf. No. 12728/87, A. v. the Netherlands, Dec. 10.4.91). It is true that the assessment of the reasonableness of the length of the proceedings under Article 6 para. 1 (Art. 6-1) of the Convention cannot be made dependent on time-limits stipulated in domestic law (cf. M. v. Austria, Comm. Rep. 10.3.88, p. 15 para. 71; No. 13964/88, K. v. the Netherlands, Dec. 17.4.91).   But it must be taken into account that the national law prescribes a time-limit which has been surpassed by almost 14 months.   Even apart from this legal provision, the delay of 15½ months between the introduction of the appeal in cassation and the transmission of the files from the Court of Appeal to the Supreme Court - the main cause of the length of the proceedings before the Supreme Court in the present case - can in the Commission's view not be justified by lack of available staff as suggested by the Government. The Commission here refers to its findings in a similar case (Marijnissen v. the Netherlands, Comm. Report 12.3.84, D.R. 40 p. 83). It also notes that, during the relevant period, the applicant's lawyer regularly inquired about the progress of the case (para. 21 above), although it is uncertain whether she expressly requested a hearing to be held urgently.   34.    In the light of the above considerations the Commission finds that the length of the proceedings between the judgment of the Court of Appeal and the decision of the Supreme Court was excessive and that this is due to a delay imputable to the State.     E.     Conclusion   35.    The Commission concludes unanimously that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.     Secretary to the Second Chamber        President of the Second Chamber           (K. ROGGE)                               (S. TRECHSEL)                                       APPENDIX I                             HISTORY OF PROCEEDINGS     Date                                     Item _______________________________________________________________________   24 November 1987                         Introduction of application   7 March 1988                             Registration of application   Examination of admissibility   12 October 1989                          Commission's decision to                                         invite the Government to                                         submit their observations on                                         the admissibility and merits                                         of the application     18 Decmeber 1989                         Government's observations   1 March 1990                             Applicant's observations in                                         reply   18 May 1990                              Legal aid granted   8 January 1991                           Decision to refer the                                         application to the Second                                         Chamber   8 July 1991                              Commission's decision to                                         declare the application                                         admissible       Examination of the merits   15 July 1991                             Parties invited to submit                                         further observations on the                                         merits     1 April 1992                             Commission's deliberations                                         on the merits, final vote and                                         adoption of the Report