CEDH · CASELAW;REPORTS;ENG — 13 octobre 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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                           SECOND CHAMBER                      Application No. 18395/91                Mathilde Elizabeth Lupker and Others                               against                           the Netherlands                      REPORT OF THE COMMISSION                    (adopted on 13 October 1993)                          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. 17-28) . . . . . . . . . . . . . . . . . . . . .3   III.   OPINION OF THE COMMISSION      (paras. 29-43) . . . . . . . . . . . . . . . . . . . . .5        A.    Complaint declared admissible           (para. 29). . . . . . . . . . . . . . . . . . . . .5        B.    Point at issue           (para. 30). . . . . . . . . . . . . . . . . . . . .5        C.    General considerations           (paras. 31-32). . . . . . . . . . . . . . . . . . .5        D.    Determination and assessment of           the length of the proceedings           (paras. 33-42). . . . . . . . . . . . . . . . . . .5        E.    Conclusion           (para. 43). . . . . . . . . . . . . . . . . . . . .6   APPENDIX I    :   HISTORY OF THE PROCEEDINGS. . . . . . . . . .7   APPENDIX II   :   DECISION ON THE ADMISSIBILITY . . . . . . . .8   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 five applicants are Dutch citizens and resident at Nijmegen. The first applicant, Mathilde Elizabeth Lupker, is born in 1967.   The second applicant, Caroline Christine van der Mandele, is born in 1958. The third applicant, Rudolf Paesie, is born in 1956. The fourth applicant, Franciscus Johannes Joseph Maria Schoenmaeckers, is born in 1964.   The fifth aplicant, Jean Louis Bernard Seveke, is born in 1964. The applicants are represented before the Commission by Mrs. Ties Prakken, a lawyer practising in Amsterdam.   3     The application is directed against the Netherlands.   The respondent Government are represented by their Agent, Mr. Karel De Vey Mestdagh, of the Netherlands Ministry of Foreign Affairs.   4     The applicants complain under Article 6 para. 1 of the Convention about the length of criminal proceedings.   These proceedings started on 24 and 25 March 1987 when the applicants were arrested on charges of participation in an association whose aim was to commit certain offences (Section 140 para. 1 of the Penal Code) or, subsidiarily, of incitement to, or complicity in, attempted killing, attempted serious ill-treatment, ill-treatment, violence against persons and property and arson.   It ended on 16 October 1990 with the Supreme Court's decision to reject the first, second, third and fifth applicants' appeals in cassation and to quash the Court of Appeal's judgment as regards the fourth applicant.   5     Before the Commission, the applicants complain of the length of the above proceedings and allege a violation of Article 6 para. 1 of the Convention.   B.    The proceedings   6     The application was introduced on 8 April 1991 and registered on 21 June 1991.   On 20 February 1992, 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 27 May 1992 and the applicants replied on 1 September 1992.   8     On 7 December 1992, the Commission declared the applicants' complaint under Article 6 para. 1 of the Convention as to the length of the proceedings admissible.   The remainder of the application was declared inadmissible.   9     On 7 December 1992, the Commission referred the application to the Second Chamber.   10    On 14 December 1992, 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 of the Convention and after deliberations and votes, the following members being present:             MM.   S. TRECHSEL, President                H. DANELIUS                G. JÖRUNDSSON                J.-C. SOYER                H.G. SCHERMERS           Mrs. G.H. THUNE           MM.   F. MARTINEZ                L. LOUCAIDES                J.-C. GEUS                M.A. NOWICKI                I. CABRAL BARRETO   13    The text of the Report was adopted on 13 October 1993 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 1 of the Convention.   14    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is        (1)   to establish the facts, and        (2)   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 forms 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 16 September 1986, parts of an office building at Nijmegen were occupied by a number of persons as a protest against the town- planning at Nijmegen and against a law which was seen as directed against squatters.   On 24 December 1986, the President of the Regional Court (Arrondissementsrechtbank) of Nijmegen decided that the squatters who occupied the building could be removed by force within three days from the serving of this decision.   The decision was served on 8 January 1987.   18    On 11 January 1987, some windows at the Town Hall of Nijmegen were crushed, and there was a fire at one of the entrances of the Town Hall.   19    On 14 January 1987, the Public Prosecutor (Officier van Justitie) asked the Investigating Judge (Rechter-Commissaris) to open a judicial investigation against X (unknown person) in regard to the fire at the Town Hall.   According to the police, those who had caused the fire were to be found within the group of persons occupying the office building.   20    On 19 January 1987, there was unrest at Nijmegen and the squatters were removed by the police.   Ten persons were arrested but they were all released again within four days.   21    On 21 January 1987, there was a fire at the entrance of the building of the National Police at Nijmegen.   On 2 February 1987, the Public Prosecutor requested a further judicial investigation about the incidents on 19 January 1987.   22   On 19 March 1987, the Public Prosecutor again requested a judicial investigation.   As suspects he indicated eight persons, among whom all five applicants.   The charge was extended to cover "participation in an association whose aim is the commission of offences", this being the offence provided for in Section 140 para. 1 of the Penal Code (Wetboek van Strafrecht).   23    On 24 March 1987, searches were carried out at five addresses at Nijmegen.   Seven of the eight suspects (among whom the first, second, third and fifth applicants) were arrested on that day.   The eighth suspect (the fourth applicant) was arrested on 25 March 1987.   24    The applicants were released on 7 May 1987.   Subsequently, they were indicted, together with three other suspects, before the Regional Court of Arnhem.   They were charged primarily with participation in an association whose aim was to commit certain offences (Section 140 para. 1 of the Penal Code) or, subsidiarily, with incitement to, or complicity in, attempted killing, attempted serious ill-treatment, ill- treatment, violence against persons and property and arson.   25    The trial before the Regional Court was held from 15 October to 7 December 1987.    On 21 December 1987, the Regional Court pronounced its judgment.   All the accused were acquitted in respect of the primary charge but convicted in respect of the subsidiary charge and sentenced to eight months' imprisonment, out of which four months' imprisonment would be a conditional sentence.   26    Both the sentenced persons and the Public Prosecutor appealed.   27    On 23 September 1988, the hearing was held before the Court of Appeal (Gerechtshof) of Arnhem.   On 7 October 1988, the Court of Appeal convicted the accused of the primary charge.   The accused were sentenced to nine months' imprisonment, three months of which would be a conditional sentence.   28    All the eight sentenced persons appealed on 18 October 1988 to the Supreme Court (Hoge Raad).   The case-file was transmitted to the Supreme Court on 18 August 1989.   In its judgment of 16 October 1990, the Supreme Court rejected the appeals of seven of the sentenced persons.   In respect of the eighth person (the fourth applicant), the judgment of the Court of Appeal was quashed.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   29    The Commission declared admissible the applicants' complaint under Article 6 para. 1 (Art. 6-1) of the Convention concerning the length of the criminal proceedings against them.   B.    Point at issue   30    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   31    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."   32    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   33    The proceedings at issue began on 24 and 25 March 1987, when the applicants were arrested.   They ended with the Supreme Court's judgment of 16 October 1990.   34    The proceedings thus lasted a little less than three years and seven months.   35    According to the applicants, this lapse of time and in particular the time between the judgment of the Court of Appeal (7 October 1988) and the judgment of the Supreme Court (16 October 1990), i.e. about two years, cannot be regarded as "reasonable" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   In particular, the delay in transmitting the case-file to the Supreme Court after the judgment of the Court of Appeal was excessively long.   The judgment of the Court of Appeal was given on 7 October 1988 and the case-file was not transmitted until 18 August 1989, i.e. ten months later, while according to Section 433 para. 3 of the Code of Criminal Procedure in force at the relevant time, the time-limit for transmitting the case- file was 54 days.   36    The Government recall that the proceedings lasted slightly less than three years and seven months.   Viewed as a whole, this period could not, in the Government's opinion, be considered as unreasonable as the case was a complicated one with eight suspects and a substantial file.   For the same reasons, the length of the procedure before the Supreme Court could not be considered as unreasonable. The Government concede that the statutory time-limit of 54 days laid down in Section 433 para. 3 of the Code of Criminal Procedure for the sending of the documents from the Registry of the Court of Appeal to the Supreme Court was not respected.   However, they submit that this delay can rarely be observed in practice.   This provision was therefore amended as of 1 May 1992, the fixed limit of 54 days having been replaced by the words "as soon as possible".   37    The Commission notes that the first instance and the appeal proceedings lasted slightly more than 18 months.   In view of the circumstances described above (paras. 17-27) it does not find this period unreasonably long.   38    The period between the lodging of the applicants' appeals to the Supreme Court and the judgment of that Court was about two years.   As regards this period, there is one striking feature, namely the time which elapsed before the case-file was transmitted to the Supreme Court.   39    Although the applicant filed his appeal on points of law on 18 October 1988, the registry of the Supreme Court did not receive the case-file until 18 August 1989.   For this period of ten months, the Government have offered no satisfactory explanation.   40    The Commission recalls that Article 6 para. 1 (Art. 6-1) of the Convention imposes on the Contracting States the duty to organise their legal system in such a way that their courts can meet each of its requirements (Eur. Court H.R., Bunkate judgment of 26 mai 1993, Series A no. 248-B, para. 23).   41    The Commission finds in particular that, where an appeal is lodged against a court's judgment, it should be possible for that court to transmit the case-file to the higher court within a very short period of time so as to permit the higher court to start its examination of the appeal without delay.   The period of ten months which elapsed in the present case cannot therefore be regarded as "reasonable" for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court H.R., Bunkate judgment mentioned above, para. 23; Eur. Court H.R., Abdoella judgment of 25 November 1992, Series A no. 248-A, para. 24).   42    The Commission therefore finds that the applicants did not have a hearing within a reasonable time within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   E.    Conclusion   43    The Commission concludes by 8 votes to 3 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   ___________________________________________________________________   8 April 1991                   Introduction of application   21 June 1991                   Registration of application   Examination of admissibility   20 February 1992               Commission's decision to invite the                               Government to submit their                               observations on the admissibility and                               merits of the application   27 May 1992                    Government's observations   1 September 1992               Applicant's observations in reply   7 December 1992                Commission's decision to declare the                               application admissible. Commission's                               decision to invite the parties,                               should they so desire, to submit                               further observations on the merits of                               the application   Examination of the merits   13 October 1993                Commission's deliberations on the                               merits final vote and adoption of the                               Report