CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 juin 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. 15057/89                     by T.V.                     against the Netherlands          The European Commission of Human Rights sitting in private on 29 June 1992, the following members being present:             MM.   C.A. NØRGAARD, President                S. TRECHSEL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H.G. SCHERMERS                H. DANELIUS           Sir   Basil HALL           Mr.   F. MARTINEZ RUIZ           Mrs. J. LIDDY           MM.   L. LOUCAIDES                J.-C. GEUS                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 27 February 1987 by T.V. against the Netherlands and registered on 29 May 1989 under file No. 15057/89;        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 is a Dutch citizen, born in 1964.   Before the Commission he is represented by Mr. J.K. Gaasbeek, a lawyer practising in Haarlem.        The facts of the case, as submitted by the applicant, may be summarised as follows.        On 15 September 1988, the applicant, at that time detained on remand (bevel tot gevangenhouding), was convicted by the Regional Court (Arrondissementsrechtbank) of Haarlem on various counts of theft and armed robbery and sentenced to four years' imprisonment.   He was convicted, inter alia, on the basis of his confessions to the police.   He appealed to the Court of Appeal (Gerechtshof) of Amsterdam.        Since his conviction in first instance, the applicant remained in detention.   According to the Dutch law on criminal procedure, this period of detention is still considered as detention on remand.   Consequently, the detention had to be regularly prolonged for a period of 30 days by the Court of Appeal. Under Section 66 para 3 of the Code of Criminal Procedure (Wetboek van Strafvordering), the accused shall be given the opportunity to be heard when a decision about the prolongation of the detention on remand is taken ("De verdachte wordt in de gelegenheid gesteld [...] te worden gehoord").        On 12 October 1988, the Court of Appeal of Amsterdam decided to prolong the detention of the applicant.   The Court noted that the seriousness of the case appeared from the fact that he had been convicted in first instance of a crime for which the law provides for the possibility of provisional detention.        On 9 November 1988, the Court of Appeal of Amsterdam prolonged the detention of the applicant, giving the same reasons as in its decision of 12 October 1988.        On 7 December 1988, the Court of Appeal of Amsterdam decided to prolong the applicant's detention   without hearing him. According to the applicant, he had asked to be heard but he was not given the opportunity to be present at the hearing. The Court of Appeal considered that the reasons given on this point by the Regional Court were still valid.   It also pointed out that the seriousness of the offences with which he was charged appeared from the fact that the applicant had been convicted in first instance of a crime for which the law provides for the possibility of provisional detention.        On 21 December 1988, the applicant submitted an application for release arguing that the decision of 7 December 1988 had been taken without him being heard although he had asked to be heard.        On 11 January 1989, the Court of Appeal rejected the applicant's request stating that it appeared from a statement by a member of the prison staff that he had been given the opportunity on 7 December 1988 to be heard by the Court ("omdat is gebleken dat de verdachte op 7.12.1988 in de gelegenheid is gesteld door het Hof gehoord te worden"). The Court also ordered a new prolongation of the detention, recalling the seriousness of the case and the Regional Court's judgment.            On 7 February 1989, the applicant asked the Court of Appeal to hear two members of the prison staff in order to confirm his statement that he had not been given the opportunity to be heard on 7 December 1988.   He also asked to have the members of the prison staff who had given evidence against him heard in his presence.        On 8 February 1989, the Court of Appeal decided a new prolongation of the detention recalling the seriousness of the case and the Regional Court's judgment.   It also rejected the applicant's objection concerning the fact that he had not been heard on 7 December 1988, referring to its decision of 11 January 1989 ("dat het hof voor wat betreft het gevoerde verweer, verwijst naar de beschikking van het hof d.d. 11.1.1989") and without acceding to the applicant's request to have witnesses heard.        On 20 March 1989, the Court of Appeal confirmed the first instance judgment and sentence.     COMPLAINTS   1.    Invoking Article 5 para. 1 of the Convention, the applicant complains that he was not heard by the Court of Appeal on 7 December 1988 and claims that his further detention on remand was therefore unlawful.   He explains that three members of the prison staff have confirmed, by statements made in March and April 1989, the fact that he had not been given the opportunity to be heard by the Court of Appeal.   He therefore considers that his detention was not in conformity with Article 5 para. 1 (c) of the Convention.   2.    Invoking Article 5 para. 4 of the Convention, the applicant also complains of the lack of fairness of the proceedings which have led to the Court of Appeal's decisions of 11 January and 8 February 1989.   He explains that he has not had the right to cross-examine the witness heard on 11 January 1989 and that the Court of Appeal has refused to accede to his request of 7 February 1989 to have three members of the prison staff heard or reheard.   He therefore has not had the opportunity to substantiate his objections to the lawfulness of his detention.     THE LAW   1.    The applicant complains that his detention after 7 December 1988 was unlawful, as the Court of Appeal had failed to hear him contrary to statutory requirements when deciding to prolong his detention.        Article 5 para. 1 (Art. 5-1) of the Convention reads as follows:        "1.   Everyone has the right to liberty and security of      person.   No one shall be deprived of his liberty save      in the following cases and in accordance with a      procedure prescribed by law:        a.    the lawful detention of a person after conviction by      a competent court;      (...)      c.    the lawful arrest or detention of a person effected      for the purpose of bringing him before the competent legal      authority on reasonable suspicion of having committed an      offence or when it is reasonably considered necessary to      prevent his committing an offence or fleeing after having      done so;..."        It follows from the case-law of the Convention organs that, for the purpose of the Convention, detention while an appeal is pending should be considered as detention "after conviction", within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention, even if the detention continues to be considered as detention on remand under domestic law (Eur. Court H.R. Wemhoff judgment of 27 June 1968, Series A no. 7, p. 23-24, para. 9; No. 8555/79, Dec. 4.12.79, D.R. 20 p. 199; No. 9132/80, Dec. 16.12.82, D.R. 31 p. 154).        In the present case, the applicant has been convicted and sentenced to four years imprisonment by the Regional Court's judgment of 15 September 1988.   For the application of the Convention his detention on remand, under Article 5 para. 1 (c) (Art. 5-1-c), therefore ended on this day and he was subsequently detained as a convicted person under Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.   The deprivation of liberty pending the appeal therefore has its origin in the judgment of 15 September 1988.   The facts that the applicant's detention had to be regularly prolonged for periods of 30 days by the Court of Appeal since it was considered under Dutch law as detention on remand does not alter this conclusion.        The Commission also wants to emphasise that there exist important differences among the Contracting States both on the question whether a person convicted at first instance has started serving his sentence while an appeal is pending and on the question of a possible or compulsory control of the detention pending the appeal.   In this regard, the Commission finds it reasonable that the important guarantees of Article 5 para. 3 (Art. 5-3) of the Convention should not be made dependent on any particular national situation (cf. Eur. Court H.R., B. v. Austria judgment of 28 March 1990, Series A no. 175, pp. 15-16, para. 39).        The applicant has not complained of the judgment of 15 September 1988 and the Commission finds nothing in the case-file to suggest that the applicant's detention resulting from this judgment was not both "in accordance with a procedure prescribed by law", and "lawful".        In these circumstances, the Commission finds that there is no appearance of a violation of Article 5 para. 1 (Art. 5-1) of the Convention.                                 It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para 2 (Art. 27-2) of the Convention.   2.    The applicant also complains of the lack of fairness of the proceedings which have led to the Court of Appeal's decisions of 11 January and 8 February 1989 to prolong the provisional detention. He explains that hehas not had the right to cross-examine the witness heard on 11 January 1989 and that the Court of Appeal had refused to accede to his request of 7 February 1989.                         Article 5 para. 4 (Art. 5-4) of the Convention reads as follows:        "4.   Everyone who is deprived of his liberty by arrest      or detention shall be entitled to take proceedings by      which the lawfulness of his detention shall be decided      speedily by a court and his release ordered if the      detention is not lawful."        However, in the case of De Wilde, Ooms and Versyp (Eur. Court H.R., De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 40 para. 76), the Court held that Article 5 para. 4 (Art. 5-4) does not oblige the Contracting States to make available to the person detained, a right of recourse to a court, where the decisions depriving him of his liberty has been made "by a court at the close of judicial proceedings.   In the latter case, the supervision required by Article 5 para. 4 (Art. 5-4) is incorporated in the decision" (cf. also No. 12055/86, Dec. 8.9.88, unpublished).        On this point, the Commission, referring to its consideration under Article 5 para. 1 (Art. 5-1), recalls that the detention pending the appeal must be considered as detention "after conviction" and that the deprivation of liberty pending the appeal of the applicant has its origin in the judgment of 15 September 1988 by which he was convicted and sentenced to four years' imprisonment.   The judicial supervision required by Article 5 para. 4 (Art. 5-4) was therefore incorporated in the judgment of 15 September 1988 by the Regional Court.        It follows that this part of the application must also be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority         DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission             President of the Commission           (H.C. KRÜGER)                            (C.A. NØRGAARD)