CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1995

.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. 23230/94                       by R.E.P.L.                       against the Netherlands        The European Commission of Human Rights sitting in private on 11 January 1995, the following members being present:                    Mr.   H. DANELIUS, President                  Mrs. G.H. THUNE                  MM.   G. JÖRUNDSSON                       S. TRECHSEL                       J.-C. SOYER                       H.G. SCHERMERS                       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 13 October 1993 by R.E.P.L. against the Netherlands and registered on 10 January 1994 under file No. 23230/94;        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 national, born in 1954, and currently resides at The Hague. Before the Commission he is represented by Mr. P.J. Baauw, a lawyer practising in Utrecht.        The facts of the case, as submitted by the applicant, may be summarised as follows.        On 28 August 1989 in Amsterdam the applicant shot another person after that person had threatened him with a knife. The next day the applicant reported the events to the police at Utrecht. He was taken in detention on remand and charged with manslaughter.        Following a hearing on 11 January 1990, the Regional Court (Arrondissementsrechtbank) of Amsterdam, finding that the applicant had acted in legitimate self-defence and used excessive force (noodweer- exces), decided on 17 January 1990 that he was not to be punished for manslaughter.        The applicant was consequently discharged and his release ordered. The applicant was present when the Regional Court pronounced its decision. On 29 January 1990 the public prosecutor filed an appeal against the Regional Court's decision.        On 31 January 1990 the Registry of the Regional Court informed the applicant's lawyer of the appeal. On the same day, the lawyer informed the applicant of the appeal.        Until 1 May 1992, in cases where only the public prosecutor had filed an appeal, an appeal court, pursuant to Section 409 para. 2 of the Code of Criminal Procedure (Wetboek van Strafvordering), could only formally accept the pertaining case-file when the appeal notification had been served on the accused in person, or when it was clear that the accused was aware of the public prosecutor's appeal.        On 20 February 1990 a notification of the appeal was presented to the applicant's home address in The Hague. However, the applicant had in the meantime moved to Amsterdam, where at that moment he was registered in the Population Registry (Bevolkingsregister). The notification could consequently not be served on him. No message was left behind. On 27 February 1990 the notification was returned to the public prosecutor.        On 16 May 1991 the applicant was apprehended by an officer of the National police (Rijkspolitie), who served him with the notification.        On 26 July 1991 the applicant's case-file was transmitted to the Court of Appeal (Gerechtshof) of Amsterdam.        The proceedings on appeal started on 7 April 1992. After having deliberated, the Court of Appeal rejected the applicant's objection that the prosecution should be declared inadmissible in view of the length of time which had elapsed between the Regional Court's judgment and the proceedings on appeal.        Although holding that this delay was longer than desirable, it found that this should not result in the inadmissibility of the prosecution and that the period at issue could not be regarded as unreasonably long. In this finding the Court had regard to the fact that both the applicant's lawyer, who was aware of the contents of Section 409 para. 2 of the Code of Criminal Procedure, and the applicant knew that the public prosecutor had filed an appeal, and that they had remained in regular contact. It stated that the applicant could have informed the Registry of the Regional Court or the Court of Appeal that he was aware of the appeal. Although acknowledging that the applicant was under no obligation to do so, the Court of Appeal held that, where the accused, while being assisted by a lawyer, is aware of the appeal, his passive attitude does affect the plea based on Article 6 para. 1 of the Convention.        The Court of Appeal subsequently adjourned its proceedings until 19 June 1992 in order to enable the prosecution to summon two witnesses. The applicant stated he did not wish to hear any witnesses.        On 19 June 1992 the Court of Appeal resumed the proceedings and examined the two witnesses.        On 3 July 1992 the Court of Appeal quashed the Regional Court's judgment of 17 January 1990, convicted the applicant of manslaughter and sentenced him to seven years' imprisonment under deduction of the time spent in pre-trial detention.        In respect of the determination of the sentence, the Court of Appeal stated, inter alia:   <translation>      "The facts found proven, i.e. manslaughter, belongs to the      most serious category of offences punishable under the      Criminal Code. The legislator threatens the offence with      imprisonment of up to fifteen years. The legal order is      seriously rocked by this fact. The court has further      considered that already earlier the suspect has rendered      himself guilty of an offence involving violence. In      principle the court finds - noting the serious gravity of      the facts established - the sentence requested by the      public prosecution in first instance and on appeal [seven      years' imprisonment] to be insufficient.      Only in view of the long period of time, which elapsed      since 28 August 1989, the court finds reason to confine      itself to [the imposition of] a prison sentence for a      duration of seven years."        The applicant's appeal in cassation to the Supreme Court (Hoge Raad) was rejected on 20 April 1993. As to the applicant's complaint that the Court of Appeal had unjustly rejected his argument, based on Article 6 para. 1 of the Convention, that the prosecution should be declared inadmissible, the Supreme Court accepted the Court of Appeal's reasoning.   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 complains in particular about the period of time which elapsed between 17 January 1990, when the Regional Court gave its judgment, and 7 April 1992, when the first hearing on appeal took place.   THE LAW        The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that the criminal charges against him have not been determined within a reasonable time.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides 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 notes that the proceedings at issue started on 29 August 1989, when the applicant was taken into detention on remand, and ended on 20 April 1993, when the Supreme Court rejected his appeal in cassation. They thus lasted three years and almost eight months.        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 confining - on the sole basis of the length of the proceedings - itself to imposing the prison sentence requested by the public prosecutor despite its finding that this sentence was insufficient, has implicitly acknowledged that there had been an undue delay in the proceedings and has thus afforded redress as to the delay between the decision of the Regional Court and the proceedings on appeal.        The Commission recalls that an applicant can no longer claim to be a "victim" within the meaning of Article 25 (Art. 25) of the Convention 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, after having recalled that the maximum penalty for manslaughter under Dutch law is fifteen years' imprisonment and after having found that the sentence of seven years' imprisonment requested by the public prosecutor was insufficient, explicitly took the length of the proceedings into account when it decided, on the sole basis of that length, not to impose a higher sentence than the one requested by the public prosecutor.        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 imposing a lower sentence than the one it considered the offence at issue did in fact call for.        It follows 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 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)                            (H. DANELIUS)