CEDH · CASELAW;REPORTS;ENG — 22 février 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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                                SECOND CHAMBER                          Application No. 20882/92                            José Giovannie Mangwa KOC                                   against                               the Netherlands                          REPORT OF THE COMMISSION                        (adopted on 22 February 1995)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 16-20). . . . . . . . . . . . . . . . . . . . . . . . 3   III.   OPINION OF THE COMMISSION       (paras. 21-33). . . . . . . . . . . . . . . . . . . . . . . . 4         A.    Complaint declared admissible            (para. 21) . . . . . . . . . . . . . . . . . . . . . . . 4         B.    Point at issue            (para. 22) . . . . . . . . . . . . . . . . . . . . . . . 4         C.    Compliance with Article 6 para. 1 of the Convention            (paras. 23-32) . . . . . . . . . . . . . . . . . . . . . 4              CONCLUSION            (para. 33) . . . . . . . . . . . . . . . . . . . . . . . 5   APPENDIX I    : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . . 6   APPENDIX II   : DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . 7   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 applicant is a Dutch citizen, born in 1965. At the time of the introduction of the application the applicant was detained in the Aruba remand centre. He was represented before the Commission by Mr. G. Spong, a lawyer practising in The Hague.   3.     The application is directed against the Netherlands.   The respondent Government were represented by their Agent, Mr. K. de Vey Mestdagh, of the Netherlands Ministry of Foreign Affairs.   4.     The applicant complains under Article 6 para. 1 of the Convention that the criminal proceedings against him have exceeded a reasonable time. These proceedings began with the applicant's arrest on 8 March 1989 and ended on 28 April 1992 when the Supreme Court rejected his appeal in cassation.   B.     The proceedings   5.     The application was introduced on 21 August 1992 and registered on 16 November 1992.   6.     On 30 June 1993 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite them to submit written observations on the admissibility and the merits of the application.   7.     The Government's observations were submitted on 27 September 1993. The applicant replied on 9 December 1993. On 17 January 1994 the Government submitted additional observations. The applicant's additional observations in reply were submitted on 1 February 1994.   8.     On 11 May 1994 the Commission (Second Chamber) declared the applicant's complaint under Article 6 para. 1 of the Convention as to the length of the proceedings admissible.   9.     The text of the Commission's decision on admissibility was sent to the parties on 25 May 1994 and they were invited to submit such further information or observations on the merits as they wished. The parties did not avail themselves of this possibility.   10.    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. To this end consultations took place with the parties between 7 July 1994 and 28 October 1994. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   11.    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:              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   12.    The text of this Report was adopted on 22 February 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.    The purpose of the Report, pursuant to Article 31 of the Convention, is:         (i)   to establish the facts, and         (ii) to state an opinion as to whether the facts found disclose            a breach by the State concerned of its obligations under            the Convention.   14.    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 as Appendix II.   15.    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   16.    On 8 March 1989 the applicant was apprehended by the police of Aruba on the suspicion of having committed offences under the Netherlands Antilles/Aruba Narcotics Act (Landsverordening Verdovende Middelen) and subsequently detained on remand.   17.    On 15 September 1989 the Court of First Instance (Gerecht in Eerste Aanleg) of Aruba convicted the applicant under the Netherlands Antilles/Aruba Narcotics Act and sentenced him to eight years' imprisonment.   18.    On 26 June 1990 the Court of Appeal of the Netherlands Antilles and Aruba (Gemeenschappelijk Hof van Justitie van de Nederlandse Antillen en Aruba) quashed the judgment of 15 September 1989. After a new examination of the case it convicted the applicant under the Netherlands Antilles/Aruba Narcotics Act and sentenced him to seven years' imprisonment.   19.    On 29 June 1990 the applicant filed an appeal in cassation with the Supreme Court (Hoge Raad). On 11 April 1991 the Registrar of the Court of Appeal sent the documents concerning the applicant's case to the Supreme Court, where they were received on 15 April 1991. The Supreme Court started its examination of the case on 14 January 1992. On 28 April 1992 the Supreme Court rejected the appeal in cassation.   20.    The Supreme Court examined the applicant's complaint that, in view of the period between the introduction of his appeal in cassation and the examination of the appeal by the Supreme Court whilst he continued to be detained, the length of the proceedings had exceeded "a reasonable time" within the meaning of Article 6 para. 1 of the Convention. The Supreme Court noted that the period between 8 March 1989, when the applicant was apprehended and subsequently detained on remand, and 14 January 1992, when the Supreme Court started its examination of the applicant's appeal, was two years, ten months and six days. The Supreme Court considered that such a period cannot, in general, be regarded as unreasonable and that in the present case there were no circumstances leading to a different conclusion.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   21.    The Commission has declared admissible the applicant's complaint concerning the length of the criminal proceedings against him.   B.     Point at issue   22.    The point at issue is accordingly whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.     Compliance with Article 6 para. 1 (Art. 6-1) of the Convention   23.    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 established by law."   24.    The proceedings at issue began on 8 March 1989, when the applicant was apprehended on the suspicion of narcotics offences and ended with the Supreme Court's judgment of 28 April 1992. They thus lasted more than three years and one month.   25.    The Commission recalls that the reasonableness of the length of criminal proceedings must be assessed in the light of the particular circumstances of the case and having regard to its complexity, the conduct of the applicant and the conduct of the competent authorities (cf. Eur. Court H.R., Kemmache judgment of 27 November 1991, Series A no. 218, para. 60).   26.    The applicant submits that the period which elapsed between the judgment of the Court of Appeal of the Netherlands Antilles and Aruba (26 June 1990) and the judgment of the Supreme Court (28 April 1992), i.e. 22 months, cannot be regarded as "reasonable" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. He complains in particular of the delay in transmitting the case-file to the Supreme Court after the judgment of the Court of Appeal. The judgment of the Court of Appeal was given on 26 June 1990 and the case-file was not transmitted until 11 April 1991, i.e. 9½ months later, while according to Section 11 para. 3 of the Rules of Cassation for the Netherlands Antilles in force at the relevant time, the time-limit for transmitting the case-file was 84 days.   27.    The Government submit that the statutory rule concerning the delay for the transmission of a case-file to the Supreme Court, which is no longer in force, was merely a norm to be observed by the Registrar of the Court which gave the ruling against which an appeal in cassation has been lodged. The failure to respect this norm does not entail nullity. The Government further submit that the Supreme Court, once it had received the case-file, delivered judgment within a reasonable time.   28.    The Commission notes that the facts in the present case were not very complex.   29.    The applicant made use of the remedies available to him, but there can be no objection to an accused in criminal proceedings making use of the ordinary remedies available to him under domestic law.   30.    With regard to the conduct of the judicial authorities dealing with the case, the Commission notes that the period between the day on which the applicant lodged his appeal in cassation (29 June 1990) and the day on which the Supreme Court received the applicant's case-file from the Court of Appeal (15 April 1991) lasted about 9½ months. The Government have offered no explanation for this delay.   31.    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 May 1993, Series A no. 248-B, p. 31, para. 23).   32.    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 short period of time so as to permit the higher court to start its examination of the appeal without delay. The period of 9½ 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 loc. cit., p. 31, para. 23; and Eur. Court H.R., Abdoella judgment of 25 November 1992, Series A no. 248-A, p. 17, para. 24).         CONCLUSION   33.    The Commission concludes, by 12 votes to 1, 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)                              (H. DANELIUS)                                 APPENDIX I                         HISTORY OF THE PROCEEDINGS   Date                         Item _________________________________________________________________   21 August 1992               Introduction of application   16 December 1992             Registration of application   Examination of admissibility   30 June 1993                 Commission's decision (Second Chamber) to                             communicate the case to the respondent                             Government and to invite the parties to                             submit observations on admissibility and                             merits   27 September 1993            Government's observations   9 December 1993              Applicant's observations in reply   17 January 1994              Government's additional observations   1 February 1994              Applicant's additional observations in                             reply   11 May 1994                  Commission's decision to declare                             application admissible   Examination of the merits   25 May 1994                  Decision on admissibility transmitted to                             parties. Invitation to parties to submit                             further observations on the merits, should                             they so desire   6 September 1994             Commission's consideration of state of                             proceedings   17 January 1995              Commission's consideration of state of                             proceedings   22 February 1995             Commission's deliberations on the merits,                             final vote and adoption of the Report