CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 juillet 1994

.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. 19962/92                       by J.D.J.                       against the Netherlands         The European Commission of Human Rights (Second Chamber) sitting in private on 5 July 1994, 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                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, Secretary to the 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 April 1992 by J.D.J. against the Netherlands and registered on 11 May 1992 under file No. 19962/92;         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 Paramaribo, Surinam, in 1966 and is residing at Nijmegen, the Netherlands. Before the Commission he is represented by Mr. M. Jankie.         The facts, as presented by the applicant, may be summarised as follows.         On 11 June 1986 the applicant was arrested and placed in detention on remand on the suspicion of having committed assault. He was also charged with having reported a criminal offence, knowing this offence had not been committed. The applicant was released shortly after he was placed in detention on remand.         On 12 September 1988 the applicant was summoned to appear before the Magistrate (politierechter) of the Regional Court (Arrondis- sementsrechtbank) of Arnhem.         The hearing was to take place on 26 October 1988.   However, the applicant filed an objection (bezwaarschrift) against the summons on two occasions. Both objections were declared inadmissible. On 4 July 1989 the Magistrate started his examination of the case. Following a suspension, the hearing was resumed on 22 August 1989. As the applicant had not appeared, he was declared in default of appearance. On the same day the Magistrate convicted the applicant in absentia of assault and false report of a criminal offence and sentenced him to two weeks' imprisonment, suspended during a probation period of two years, and a fine of 2.000 Dutch guilders. The applicant filed an appeal against this judgment with the Court of Appeal (Gerechtshof) of Arnhem.         Before the Court of Appeal the applicant, invoking Article 6 para. 1 of the Convention, argued that the prosecution should be declared inadmissible, in view of the undue delay between his arrest and the summons to appear.         In its judgment of 16 November 1990 the Court of Appeal quashed the judgment of 22 August 1989, acquitted the applicant of the charge of having falsely reported a criminal offence for lack of evidence, convicted him of assault and sentenced him to a fine of 1.000 Dutch guilders.         In its judgment The Court of Appeal held, inter alia, that:   <Translation>       "Between the aforementioned dates (11 June 1986, when the       applicant was arrested and detained on remand, 12 September 1988,       when the summons to appear before the Magistrate was served on       the applicant, and 4 July 1989, when the Magistrate started his       examination) considered in their interrelated context, the Court       finds that such a period of time has elapsed that a violation of       the aforementioned provisions, which guarantee a trial within a       reasonable time (Article 6 of the Convention and Article 14 para.       3(c) of the International Covenant on Civil and Political Rights)       has taken place. The exceeding of this reasonable time, however,       is not of such a nature that the prosecution should be declared       inadmissible. The Court will take the violation of the treaty       provisions concerned into account in the subsequent determination       of the sentence."         In the determination of the sentence the Court of Appeal held that in view of the nature and seriousness of the offence a suspended prison sentence of two weeks and a fine would be appropriate, but that, in view of the unreasonable delay which had occurred in the proceedings, only a fine of 1.000 Dutch guilders should be imposed.         In his appeal in cassation to the Supreme Court (Hoge Raad), the applicant repeated his contention that the Court of Appeal should have declared the prosecution inadmissible instead of merely reducing the sentence for the violation of the "reasonable time" requirement in Article 6 par. 1 of the Convention.         The Supreme Court rejected the appeal on 28 January 1992, considering that the reasoning of the Court of Appeal was correct. The Supreme Court found that, also when the "reasonable time" requirement has been exceeded, the interest of society in maintaining legal norms has to prevail over the interest of an accused in having the prosecution declared inadmissible. The Supreme Court rejected the applicant's argument that only in respect of very serious offences the interests of society may prevail over the interests of an accused.   COMPLAINT         The applicant complains under Article 6 para. 1 of the Convention that the criminal charges against him have not been determined within a reasonable time. He submits that the prosecution should have been declared inadmissible, given the time which elapsed between his arrest and detention on remand and the summons to appear before the Magistrate.     THE LAW         The applicant alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that he did not have a trial within a reasonable time. He argues that the prosecution should have been declared inadmissible.         Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads as follows:         "In the determination of (...) any criminal charge against       him, everyone is entitled to a (...) hearing within a       reasonable time by a (...) tribunal (...)."         The Commission recalls that an applicant may lose the status of victim when the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention complained of (cf. Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, p. 30, para. 66 and No. 12659/87, Dec. 5.3.1990, D.R. 65 p. 136).         The Commission notes that the Court of Appeal, having convicted the applicant of assault, imposed only a fine of 1.000 Dutch guilders. The Court stated that it did not impose an additional suspended prison sentence, which it would otherwise have considered appropriate. This mitigation was considered as a redress for the violation of the "reasonable time" requirement in Article 6 para. 1 (Art. 6-1) of the Convention caused by the time which elapsed between the applicant's arrest and the beginning of the criminal proceedings before the Magistrate.         The Commission, noting that the applicant was acquitted of the charge of false reporting of a criminal offence, assumes that a part of the reduction of the sentence is attributable to this partial acquittal.         It considers, however, even when taking the partial acquittal into account, that the reduction resulting from the excessive length of the proceedings is significant (cf. N.v. Germany, Comm. Rep. 12.12.83, D.R. 41 p. 35 para. 135; No. 10884/84, H. v. Germany, Dec. 11.12.84, D.R. 41 pp. 254 f.). The Court of Appeal reduced the sentence substantially, which cannot only be regarded as a reduction in view of the partial acquittal for a minor offence. On the contrary, the Court of Appeal expressly found that, in view of the nature and seriousness of the offence of which the applicant was convicted, a suspended prison sentence would normally be appropriate.         The Commission is therefore satisfied that in the present case the reduction of the sentence at issue constituted adequate redress for the violation of Article 6 para. 1 (Art. 6-1) of the Convention, given the interests at stake in the proceedings complained of.         The Commission, therefore, finds that the applicant can no longer claim to be a victim, within the meaning of Article 25 (Art. 25) of the Convention, of a violation of Article 6 para. 1 (Art. 6-1) of the Convention, since he received adequate redress at the domestic level.         It follows that the application is inadmissible as manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber       President of the Second Chamber           (K. ROGGE)                            (S. TRECHSEL)