CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 11 mai 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 }                        AS TO THE ADMISSIBILITY OF                         Application No. 15243/89                       by V.A.                       against the Netherlands           The European Commission of Human Rights sitting in private on 11 May 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  S. TRECHSEL                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS            Mrs.   G. H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ RUIZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  A.V. ALMEIDA RIBEIRO                  M.P. PELLONPÄÄ                  B. MARXER                    Mr. H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 3 April 1989 by V.A. against the Netherlands and registered on 20 July 1989 under file No. 15243/89;         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, born in 1951, has the Turkish and Cypriot nationality.   He is currently detained in Amsterdam.   Before the Commission he is represented by Mr. H.F.M. Struycken, a lawyer practising in Amsterdam.         The facts, as submitted by the parties, may be summarised as follows.         The applicant was arrested on 16 October 1986 on suspicion of having committed certain drug offences contrary to the Dutch Opium Act and subsequently detained in police custody (inverzekeringstelling). On 20 October 1986, the applicant, in the presence of his lawyer, was brought before the investigating judge (rechter-commissaris), who orally informed him of the charges against him, heard the applicant and subsequently ordered his detention on remand (inbewaringstelling). Against this decision no appeal is possible. The detention was subsequently regularly prolonged.         By summons of 15 January 1987, the applicant was ordered to appear before the Regional Court (Arrondissementsrechtbank) of Amsterdam on the following charges (tenlastelegging):   <Translation>         "The suspect is being charged with having, at one or more       points in time between 1 January 1986 and 16 October 1986       inclusive, in Amsterdam, in any event in the Netherlands,       together and in association with others or another, in any       event alone (repeatedly) intentionally imported into the       territory of the Netherlands within the meaning of Article       1 para. 4 of the Opium Act, a quantity of heroin       (diacetylmorphine), in any event (repeatedly) a product as       meant in Article 1 para. 1 sub d of the Opium Act, as       mentioned on the list I belonging to this Act."         By judgment of 25 March 1987, the Regional Court convicted the applicant and sentenced him to six years' imprisonment with deduction of the time spent in pre-trial custody.         The applicant filed an appeal against this judgment with the Court of Appeal (Gerechtshof) of Amsterdam.   During the hearing of 27 October 1987 before the Court of Appeal, the applicant's lawyer orally addressed the Court and subsequently submitted a copy of the notes, on the basis of which he made his oral pleading, to the Court. These notes, inter alia, read:   <Translation>         "Hardly made investigation to acts committed in the       Netherlands or Amsterdam - referral back to Investigating       Judge / interrogation Zeliha."         In its judgment of 10 November 1987, the Court of Appeal upheld the Regional Court's conviction, yet increased the sentence with one year to seven years' imprisonment with deduction of the time spent in pre-trial custody.         The applicant's subsequent appeal to the Supreme Court (Hoge Raad) was rejected by judgment of 14 March 1989.   With respect to the applicant's complaint that the charges were insufficiently detailed, the Supreme Court held that the charges were in conformity with Dutch law.   Insofar as the applicant complained that the Court of Appeal, by rephrasing a certain police statement (politie proces-verbaal) from:   <Translation>         "When I was in Istanbul with M., M. told me that V., who at       that time was also in Istanbul, would arrange cars, that       would come to Amsterdam with heroin"   to:   <Translation>         "When I was with M in Istanbul, he told me that V., who was       also in Istanbul, would arrange car transports with heroin       to Amsterdam."   in its judgment, had based its conviction on a statement not raised during the trial, the Supreme Court held that the rephrasing did not distort the statement.         On the applicant's complaint that the Court of Appeal had failed to decide on his request to hear Mrs. Zeliha as a witness as mentioned in the notes on his oral pleadings, the Supreme Court held that the Court of Appeal did not have to consider the invoked passage in the lawyer's notes as a formal request.         The applicant also complained under Article 6 para. 1 of the Convention, that an undue delay had been caused, as, despite several requests by the applicant's lawyer to do so speedily, the Registrar of the Court of Appeal sent the judgment of 10 November 1987 only on 5 July 1988 to the Supreme Court. The Supreme Court considered, that, although the Registrar of the Court of Appeal had exceeded the time- limit contained in Article 433 para. 3 of the Code of Penal Procedure considerably, the period between 10 November 1987 and 5 July 1988 was not such as to justify the conclusion that the "reasonable time" had been exceeded, or that there had been an unreasonable delay within the meaning of Article 6 para.1 of the Convention.     COMPLAINTS   1.     The applicant complains of a violation of Article 5 para. 3 of the Convention in that he was not brought promptly before a judge after his arrest on 16 October 1986. The applicant submits that, as there is no appeal possible against the investigating judge's decision of 20 October 1986 to detain him on remand, there was no guarantee that his rights under Article 5 para. 3 would be respected by the investigating judge in this decision.   2.     The applicant complains under Article 5 para. 2 and Article 6 para. 3 (a) and (c) of the Convention that at the time of his arrest he was not promptly informed of the reasons for his arrest and of the accusation against him.   He also complains that the investigating judge only informed him orally and in a quite brief and vague way of the charges against him.   3.     The applicant complains under Article 6 para. 3 (a) of the Convention that the charges against him were insufficiently detailed as they only contained the legal qualification but no factual description of the acts held against him.   The applicant complains that therefore he could not prepare his defence in a satisfactory manner.   4.     The applicant complains under Article 6 para. 3 (d) of the Convention that the Court of Appeal did not consider his request for a further investigation and for the hearing of a particular witness.   5.     The applicant complains under Article 6 para. 1 of the Convention that he did not receive a fair trial, as the Court of Appeal, by having rephrased a certain police statement, used as evidence in its judgment, based its conviction on a statement which was not raised during the trial.   6.     The applicant complains under Article 3 of the Convention that the delay caused by the Registrar of the Court of Appeal resulted in unbearable tensions as to the final outcome of the criminal proceedings against him and that, pending the appeal proceedings, he remained detained in custody which entails a more stringent regime than detention in a prison after conviction.   7.     The applicant complains under Article 6 para. 1 of the Convention that his case-file was sent to the Supreme Court more than seven months after the date of the Court of Appeal's judgment, thereby causing an unnecessary delay in the proceedings.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 3 April 1989 and registered on 20 July 1989.         On 5 November 1990 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 application limited to the issues under Article 5 para. 3 and Article 6 para. 1 of the Convention.         The Government submitted the observations on 28 March 1991 and the applicant's observations in reply were submitted on 10 June 1991.         Legal aid under the Addendum to the Commission's Rules of Procedure was granted to the applicant on 18 October 1991.     THE LAW   1.     The applicant complains of a violation of Article 5 para. 3 (Art. 5-3) of the Convention in that he was not brought promptly before a judge after his arrest on 16 October 1986. The applicant submits that, as there is no appeal possible against the investigating judge's decision of 20 October 1986 to detain him on remand, there was no guarantee that his rights under Article 5 para. 3 (Art. 5-3) would be respected by the investigating judge in this decision.               Article 5 para. 3 (Art. 5-3) of the Convention, insofar as relevant, reads as follows:         "Everyone arrested or detained (...) shall be brought promptly       before a judge or other officer authorised by law to exercise       judicial power (...)."         The Commission notes that the applicant was arrested on 16 October 1986 and that on 20 October 1986 he was brought before the investigating judge, who ordered the applicant's detention on remand.         However, even assuming that the applicant is correct in his allegation that in this respect he had no remedy under Dutch law, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision, as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with the matter (...) within a period of six months from the date on which the final decision was taken".         In the present case the decision of the investigating judge, which was the final decision in this respect, was given on 20 October 1986, whereas the application was submitted to the Commission on 3 April 1989, that is more than six months after the date of this decision. Furthermore, an examination of the case does not disclose the existence of any special circumstances which might have interrupted or suspended the running of that period.         It follows that this part of the application has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.     The applicant complains under Article 5 para. 2 and Article 6 para. 3 (a) and (c) (Art. 5-2, 6-3-a, 6-3-c) of the Convention that at the time of his arrest he was not promptly informed of the reasons for his arrest and of the accusation against him.   He also complains that the investigating judge only informed him orally and in a quite brief and vague way of the charges against him.         However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.         The mere fact that the applicant has submitted his case to the various competent courts does not of itself constitute compliance with this rule.   It is also required that the complaint made before the Commission must have been raised, either in form or substance, before the national authorities.   In this respect the Commission refers to its established case-law (cf. No. 5574/72, Dec. 21.3.75, D.R. 3 p. 10; No. 10307/83, Dec. 6.3.84, D.R. 37 p. 113; No. 11244/84, Dec. 2.3.87, D.R. 55 p. 98).         In the present case the applicant failed to raise, either in form or substance, in the proceedings on his detention on remand or during his subsequent trial, the complaint he now formulates before the Commission.   Moreover, an examination of the case as it has been submitted does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from raising his complaint in the proceedings on his detention on remand.         It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and his application must in this respect be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.     The applicant complains that the charges against him were insufficiently detailed, as they only contained the legal qualification but no factual description of the acts with which he was charged and that, therefore, he could not prepare his defence in a satisfactory manner.   The applicant invokes Article 6 para. 3 (a) (Art. 6-3-a) of the Convention, which provides, insofar as relevant:         "3. Everyone charged with a criminal offence has the       following minimum rights:       a. to be informed promptly, in a language which he       understands and in detail, of the nature and cause of the       accusation against him;       (...)."         The Commission recalls that it has consistently held that Article 6 para. 3 (a) (Art. 6-3-a) gives an accused person the right to be informed of the cause of the accusation, i.e. the acts with which he is charged and on which his indictment is based, and of the nature of the accusation, i.e. the legal qualification of the acts in question.   In addition, because of the logical link between paragraphs 3 (a) and 3 (b) of Article 6 (Art. 6-3-a, 6-3-b), the information about the nature and cause of the accusation must be adequate to enable the accused to prepare his defence accordingly (cf. No. 10857/84, Dec. 15.7.86, D.R. 48 p. 106).         The Commission observes that the applicant was informed orally of the charges against him by the investigating judge on 20 October 1986 and that these charges were repeated in the summons of 15 January 1987, which indicate both the acts with which the applicant was charged and their legal qualification.         The Commission is therefore of the opinion that the applicant was, for the purpose of Article 6 para. 3 (a) (Art. 6-3-a), promptly and in detail informed of the nature and cause of the accusation against him.         It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     The applicant complains under Article 6 para. 3 (d) (Art. 6-3-d) of the Convention that the Court of Appeal did not consider his request for a further investigation and for the hearing of a particular witness.         Article 6 para. 3 (d) (Art. 6-3-d) reads as follows:         "Everyone charged with a criminal offence has the following       minimum rights:       (...)         d. to examine or have examined witnesses against him and to       obtain the attendance and examination of witnesses on his       behalf under the same conditions as witnesses against him."         The applicant submits that a statement by Mrs. Zeliha was of crucial importance in order to establish the veracity of the statement by the applicant's co-accused, who was heard as a witness.         The Commission first recalls that Article 6 para. 3 (d) (Art. 6-3-d) does not grant the accused an unlimited right to secure the appearance of witnesses in court.   It is normally for the national courts to decide whether it is necessary or advisable to call a witness (cf. No. 10563/83, Dec. 5.7.85, D.R. 44 p. 113 and Eur. Court H.R., Bricmont judgment of 7 July 1989, Series A no. 158, para. 89).         The Commission notes that the Court of Appeal based its conviction on statements by the applicant himself and several other persons and that the applicant was given the opportunity to contest these statements.         The Commission considers that the information submitted by the applicant does not show that the witness whom he wanted examined could have submitted any further information relevant to the determination of the issue in question.         In these circumstances an examination of the facts complained of does not disclose to the Commission any appearance of a violation of the right guaranteed to the applicant by Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.         It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.     The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that he did not receive a fair trial, as the Court of Appeal, by having rephrased a certain police statement used as evidence in its judgment of 10 November 1987, based its conviction on a statement which was not, as such, raised during his trial.         Article 6 para. 1 (Art. 6-1), insofar as relevant, provides as follows:         "1.   In the determination (...) of any criminal charge       against him, everyone is entitled to a fair and public       hearing within a reasonable time by an independent and       impartial tribunal established by law. (...)."         With regard to the judicial decision of which the applicant complains, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with a complaint alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The Commission refers, on this point, to its established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).           It is true that in this case the applicant complains that he is convicted on a statement which was not, as such, raised during his trial before the Court of Appeal.   In this connection he alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention.           However, the Commission notes in this respect that the Supreme Court considered that the Court of Appeal did not distort the police statement in rephrasing it in its judgment.         The Commission further notes that the applicant has been enabled to challenge this and other statements used as evidence before the respective national courts.   In these circumstances the Commission does not find it established that the applicant's hearing in this respect was unfair and it does not, therefore, constitute a violation of the Convention.         The Commission finds no indication that the criminal proceedings against the applicant were otherwise unfair.         It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   6.     The applicant complains that his rights under Article 3 (Art. 3) of the Convention have been violated as the delay caused by the Registrar of the Court of Appeal resulted in unbearable tensions as to the final outcome of the criminal proceedings against him and as, pending the appeal proceedings, he remained detained in custody which entails a more stringent regime than detention in a prison after conviction.         Article 3 (Art. 3) of the Convention provides as follows:         "No one shall be subjected to torture or to inhuman or       degrading treatment or punishment."         The Commission, referring to its reasoning under point 2., considers that the applicant also in this respect has failed to exhaust domestic remedies.   It follows that the complaint in this respect must also be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   7.     The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that his case-file was sent to the Supreme Court more than seven months after the date of the Court of Appeal's judgment, thereby causing an unnecessary delay in the proceedings.         The Government subscribe to the finding of the Supreme Court, that the delay complained of was not such as to justify the conclusion that the "reasonable time" had been exceeded or that there had been an unreasonable delay within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.         Under the case-law on this subject of the Convention organs, the Commission finds that the period to be considered lasted from the applicant's arrest on 16 October 1986 to 14 March 1989 when the Supreme Court rejected the applicant's appeal in cassation, the total length thus being 2 years and nearly 5 months (cf. Eur. Court H.R., Ferraro judgment of 19 February 1991, Series A no. 197A, para. 15).         The Commission recalls that the reasonableness of the length of proceedings is to be assessed in the light of the particular circumstances of the case with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (cf. Eur. Court H.R., Kemmache judgment of 27 November 1991, Series A no. 218 to be published, para. 60 with further reference).         The Commission notes that the Registrar of the Court of Appeal forwarded the case-file to the Supreme Court more than 7 months after the Court of Appeal's decision of 10 November 1987, whilst under Dutch law he was obliged to do so within a period of, at most, 54 days.         The Commission, having regard to the parties' submissions under Article 6 para. 1 (Art. 6-1) of the Convention concerning the length of the proceedings, considers that this complaint raises an issue of fact and law which can only be resolved by an examination of the merits.   This part of the application cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for inadmissibility have been established.           For these reasons, the Commission unanimously         DECLARES ADMISSIBLE, without prejudging the merits of       the case, the applicant's complaint under Article 6 para. 1        (Art. 6-1) of the Convention concerning the length of the       proceedings;         DECLARES INADMISSIBLE the remainder of the application.       Secretary to the Commission             President of the Commission             (H.C. KRÜGER)                            (C.A. NØRGAARD)