CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 septembre 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. 20773/92                       by L.v.L.                       against the Netherlands         The European Commission of Human Rights sitting in private on 2 September 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 29 June 1992 by L.v.L. against the Netherlands and registered on 29 September 1992 under file No. 20773/92;         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 1948 and resident at Bergen (NH), the Netherlands. Before the Commission he is represented by Mr. F. van Schaik, a lawyer practising in Berkel en Rodenrijs.         The facts as presented by the applicant may be summarised as follows.         In March 1987 the applicant was arrested on suspicion of having imported hard drugs into the Netherlands and was detained on remand. He was released after about ten days, but immediately arrested and detained on remand again on the suspicion of having committed tax fraud by intentionally having failed to declare certain earnings to the tax authorities. On 30 June 1987 he was released from his detention on remand on formal grounds.         By summons of 19 June 1987 the applicant was ordered to appear before the Regional Court (Arrondissementsrechtbank) of Alkmaar on charges of tax fraud. On 8 December 1987 the Regional Court convicted the applicant of tax fraud and sentenced him to 2 years' imprisonment and a fine of 20,000 Dutch Guilders. Both the applicant and the public prosecutor appealed against this judgment to the Court of Appeal (Gerechtshof) of Amsterdam.         The first hearing on appeal took place on 30 October 1989. In its interlocutory judgment of 13 November 1989 the Court of Appeal decided to reopen the investigation and to adjourn its examination for an unspecified period pending the outcome of related tax proceedings. These latter proceedings were pending before the tax chamber of the Court of Appeal of Amsterdam and concerned the question whether or not the undeclared earnings at issue constituted taxable income.         On 22 May 1990 the tax chamber of the Court of Appeal of Amsterdam delivered two judgments in which it found the applicant's taxable income in 1982 was not 17.097 Dutch guilders as declared by him, but amounted to 467.097 Dutch guilders; and that his income in 1983 was not 22.233 Dutch guilders as declared by him, but amounted to 450.000 Dutch guilders.         On 19 November 1990 the Court of Appeal of Amsterdam resumed its examination. On 3 December 1990 it convicted the applicant of tax fraud and sentenced him to 21/2 years' imprisonment with deduction of the time he had spent in pre-trial detention and a fine of 350,000 Dutch guilders. The Court of Appeal imposed a shorter prison sentence than the sentence proposed by the public prosecutor, who had requested 4 years' imprisonment. It held in this respect that:   [Dutch]       "Met de procureur-generaal is het hof van oordeel dat de in       eerste aanleg bepaalde duur van de opgelegde gevangenisstraf in       onvoldoende mate recht doet aan de ernst van het bewezene. Echter       gelet op de omstandigheid dat tussen de datum van uitspraak van       het vonnis van de rechtbank en de eerste behandeling van de zaak       in hoger beroep een onwenselijk lange periode is verstreken,       terwijl daarna bovendien nog een tussenarrest nodig bleek, zal       het hof bepalen dat aan verdachte een gevangenisstraf wordt       opgelegd van een minder lange duur dan door de procureur-generaal       is gevorderd."   [Translation]       "The Court agrees with the procurator-general that the duration       of the prison sentence imposed in first instance does not       sufficiently do justice to the seriousness of what has been       proven. However, considering that between the date of the       pronouncement of the judgment of the Regional Court and the first       hearing on appeal an undesirably long period has elapsed, and       that moreover an interlocutory judgment appeared to be necessary,       the Court will impose a shorter prison sentence than the one       demanded by the procurator-general."         The applicant's appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 10 March 1992. Insofar as the applicant complained that the Court of Appeal had insufficiently indicated how it had taken the violation of the "reasonable time" requirement contained in Article 6 of the Convention into account in the determination of the sentence, the Supreme Court noted that the Court of Appeal had not found a violation of Article 6 of the Convention, but had taken the unreasonably long period that had elapsed between the judgment of the Regional Court and the first hearing on appeal into account in the determination of the sentence. Having regard to the difference between the sentence requested by the prosecution and the sentence imposed, the Supreme Court found that the Court of Appeal had clearly indicated to which extent it had taken that period into account.   COMPLAINT         The applicant complains under Article 6 para. 1 of the Convention that the criminal charges against him were not determined within a reasonable time, in particular in view of the time which elapsed between the judgment of the Regional Court and the judgment of the Court of Appeal.     THE LAW         The applicant complains that the criminal charges against him have not been determined within a reasonable time as required by Article 6 para. 1 (Art. 6-1) of the Convention.         Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads:              "In the determination of (...) any criminal charge against       him, everyone is entitled to a (...) hearing within a reasonable       time by a (...) tribunal (...)."         The Commission notes that the proceedings complained of started in March 1987, when the applicant was arrested and detained on remand, and ended on 10 March 1992 when the Supreme Court rejected his appeal in cassation.   They thus lasted about five years.         The question, however, arises whether or not the applicant can still claim to be a victim of a violation within the meaning of Article 25 (Art. 25) of the Convention given the fact that the Court of Appeal, by imposing a reduced prison sentence, has implicitly acknowledged that the proceedings were too long and has afforded some redress as to the delay between the judgment of the Regional Court and the proceedings on appeal.         The Commission recalls that an applicant can no longer claim to be a victim of the failure to observe the "reasonable time" requirement contained in Article 6 para. 1 (Art. 6-1) of the Convention when the national authorities have acknowledged either expressly or in substance the breach of that provision and if redress has been given (cf. Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, pp. 30-31, para. 66; No. 10232/83, Dec. 16.12.83, D.R.35 p. 213; and Pannetier v. Switzerland, Comm. Report 12.7.85, paras. 86-87, D.R. 46 p. 5).         The Commission notes that the Court of Appeal explicitly took the time which elapsed between the judgment of the Regional Court and the first hearing on appeal and the adjournment of its examination into account when it decided to impose a shorter prison sentence than the sentence requested by the prosecution. The Commission is, therefore, of the opinion that the judicial authorities implicitly acknowledged a breach of Article 6 para. 1 (Art. 6-1) of the Convention and in substance afforded redress for any damage suffered by the applicant as a result of the length of the proceedings by the mitigation of the sentence imposed.         It follows that the applicant can no longer claim to be a victim of a violation of his right to a hearing within a reasonable time as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention, and his application must therefore be rejected 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)