CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 mars 1993

.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. 17297/90                       by Genaro Alberto TJIN-A-KWI,                       Rudsel Christiaan TJIN-A-KWI and                       Jasper Ronald VAN DEN HEUVEL                       against the Netherlands           The European Commission of Human Rights (Second Chamber) sitting in private on 31 March 1993, 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                       M. NOWICKI                    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 22 August 1990 by Genaro Alberto TJIN-A-KWI, Rudsel Christiaan TJIN-A-KWI and Jasper Ronald VAN DEN HEUVEL against the Netherlands and registered on 15 October 1990 under file No. 17297/90;         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 applicants are Dutch citizens, born in 1971, 1973 and 1970 respectively.   At the time of the introduction of the application, they were detained in Breda, the Netherlands.   Before the Commission they are represented by Mr. A. Goedkoop, a lawyer practising at Breda.         The facts of the case as submitted by the applicants may be summmarised as follows.         The first applicant was arrested on 5 March 1990 on suspicion of robbery or of being an accessory thereto.   He was taken into custody (inverzekeringstelling) in Breda.   He denied all charges.   By decision of 8 March 1990 the Investigating Judge (Rechter-Commissaris) ordered the applicant's detention on remand (bewaring) for six days and by decision of 14 March 1990 he prolonged the detention on remand.   On 16 March 1990 the Public Prosecutor (Officier van Justitie) requested the Breda Regional Court (Arrondissementsrechtbank) to order the applicant's further detention on remand (gevangenhouding) for thirty days.   By decision of 20 March 1990 the Regional Court granted this request.   The applicant immediately filed an appeal against this decision with the Court of Appeal (Gerechtshof) of 's-Hertogenbosch. The hearing took place on 20 April 1990.         Following the Public Prosecutor's request of 13 April 1990 thereto, the Regional Court prolonged the applicant's further detention on remand on 17 April 1990.   It ordered a second prolongation on 15 May 1990 pursuant to the Public Prosecutor's request of 11 May 1990.         The second applicant was arrested on 5 March 1990 on suspicion of robbery or of being an accessory thereto.   He was taken into custody in Breda.   He denied all charges.   By decision of 8 March 1990 the Investigating Judge ordered the applicant's detention on remand.   On 9 March 1990 the Public Prosecutor requested the Breda Regional Court to order the applicant's further detention on remand.   By decision of 13 March 1990 the Regional Court granted this request and on 12 April 1990 it prolonged the further detention on remand.         The second applicant appealed to the Court of Appeal of 's-Hertogenbosch against the Regional Court's decision of 12 April 1990.   The hearing before the Court of Appeal was scheduled for 11 May 1990.   However, as the main criminal proceedings before the Breda Regional Court started on 17 May 1990, the second applicant withdrew his appeal.         The third applicant was arrested on 4 March 1990 on suspicion of, inter alia, robbery.   He was taken into custody in Breda.   He partly confessed the offences he was suspected of having committed.   By decision of 7 March 1990 the Investigating Judge ordered the applicant's detention on remand and prolonged it on 12 March 1990.   On 9 March 1990 the Public Prosecutor requested the Breda Regional Court to order the applicant's further detention on remand.   By decision of 13 March 1990 the Regional Court granted this request and on 10 April 1990 it prolonged this detention.           The third applicant appealed to the Court of Appeal of 's-Hertogenbosch against the Regional Court's decision of 10 April 1990.   The hearing before the Court of Appeal was scheduled for 18 May 1990.   However, as the main criminal proceedings before the Regional Court started on 30 May 1990, the third applicant withdrew his appeal.     COMPLAINTS         The applicants complain that the lawfulness of their further detention on remand was not speedily reviewed since the Court of Appeal of 's-Hertogenbosch scheduled the hearing of their respective appeals thirty, twenty-nine and thirty-eight days respectively after the respective detention orders.   They invoke Article 5 para. 4 of the Convention.     THE LAW         The applicants complain that the lawfulness of their further detention on remand was not speedily reviewed since the Court of Appeal of 's-Hertogenbosch scheduled the hearing of their respective appeals thirty, twenty-nine and thirty-eight days respectively after the respective detention orders.   They invoke Article 5 para. 4 (Art. 5-4) of the Convention which provides as follows:         "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."         The Commission first observes that the right of judicial review guaranteed by Article 5 para. 4 (Art. 5-4) is intended to avoid arbitrary deprivation of liberty.   This implies not only that the competent courts must decide "speedily", but also that their decisions must follow at reasonable intervals (see e.g. Eur. Court H.R., Herczegfalvy judgment of 24 September 1992, Series A no. 242-B, para.75).   However, the Commission has already found that if the detention is confirmed by a court it must be considered to be lawful and not arbitrary, even where appeal is available.   It further found that subsequent proceedings are not concerned with arbitrariness, but provide additional guarantees aimed primarily at evaluation of the appropriateness of continuing the detention (Navarra v. France, Comm. Report 9.9.92, para. 44).         In the present case the Breda Regional Court, which ordered the three applicants' further detention on remand and the prolongation thereof, is a court within the meaning of Article 5 para. 4 (Art. 5-4). When ordering the applicants' further detention on remand, this court   confirmed their detention thereby reviewing its lawfulness.    The subsequent appeal to the Court of Appeal merely constituted an additional guarantee in order to verify whether continuation of the detention was necessary.   The Commission therefore takes the view that the time taken by the Court of Appeal to decide on the applicants' appeal raises no issue under Article 5 para. 4 (Art. 5-4) of the Convention.         It follows that the application is 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 Second Chamber    President of the Second Chamber                (K. ROGGE)                       (S. TRECHSEL)