CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 mai 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. 21204/93                       by Adrianus Johannes VERBAANT                       against the Netherlands        The European Commission of Human Rights (Second Chamber) sitting in private on 18 May 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              Ms.    M.-T. SCHOEPFER, 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 6 January 1993 by Adrianus Johannes VERBAANT against the Netherlands and registered on 21 January 1993 under file No. 21204/93;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      15 November 1994 and the observations in reply submitted by the      applicant on 3 February 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Dutch citizen, born in 1952. At the time of the introduction of the application he was detained in 's-Hertogen- bosch, the Netherlands. Before the Commission the applicant is represented by Mrs. T.N.B.M. Spronken, a lawyer practising in Maastricht, the Netherlands.        The facts of the case, as submitted by the parties, may be summarised as follows.        On 16 August 1989, the applicant was arrested and subsequently detained on remand on suspicion of having committed drug offences.        On 19 December 1989, the applicant was summoned to appear before the Regional Court (Arrondissementsrechtbank) of 's-Hertogenbosch on 4 January 1990 on several charges of dealing in narcotics and several charges of provoking fraudulent acts.        On 18 January 1990, the Regional Court (Arrondissementsrechtbank) of 's-Hertogenbosch convicted the applicant of several offences and sentenced him to three years' imprisonment, less the time spent in detention on remand.        On 30 January 1990, the applicant filed an appeal against the Regional Court's judgment with the Court of Appeal (Gerechtshof) of 's-Hertogenbosch.        On 10 July 1990, the applicant was summoned to appear before the Court of Appeal on 7 August 1990.        On 7 August 1990, the applicant requested the Court of Appeal to examine additional witnesses. The Court of Appeal adjourned its further examination of the case to 2 November 1990.        On 16 November 1990, the Court of Appeal quashed the Regional Court's judgment, convicted the applicant of three counts of provoking fraudulent acts and two offences under the Opium Act, and sentenced him to five years' imprisonment, less the time spent in detention on remand. The applicant subsequently filed an appeal in cassation with the Supreme Court (Hoge Raad).        On 5 February 1991, pending his appeal in cassation, the applicant was released as a result of a procedural mistake.        On 4 October 1991, the Court of Appeal's registrar (griffier) sent the case-file to the Supreme Court, where it was received on 7 October 1991.        The Supreme Court started its examination of the case on 24 March 1992. The applicant submitted that, between the day on which the Court of Appeal had delivered its judgment and the hearing of the case by the Supreme Court, so much time had elapsed that Article 6 para. 1 of the Convention was violated. He argued that the Court of Appeal's registrar had not sent the case-file to the Supreme Court within 54 days of the date of pronouncement of the Court of Appeal's judgment, as prescribed by Section 433 para. 3 of the Code of Criminal Procedure (Wetboek van Strafvordering).        On 8 July 1992 the Supreme Court rejected the applicant's appeal in cassation. Concerning the complaint that the criminal charges were not determined within a reasonable time, the Supreme Court considered that, although between the date on which the appeal in cassation was lodged and its hearing of the case more time had elapsed than was desirable, the reasonable time had not been exceeded and that there were no special circumstances justifying a different conclusion.   COMPLAINT        The applicant complains that the criminal charges against him have not been determined within a reasonable time, as required by Article 6 para. 1 of the Convention, in particular as a period of more than sixteen months elapsed between the introduction of his appeal in cassation and the hearing before the Supreme Court.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 6 January 1993 and registered on 21 January 1993.        On 2 September 1994 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 15 November 1994. The applicant replied on 3 February 1995.        On 28 February 1995 the Commission granted the applicant legal aid.   THE LAW        The applicant complains of the length of the criminal proceedings against him.        Article 6 para. 1 (Art. 6-1) of the Convention provides, insofar as relevant, as follows:        "In the determination of ... any criminal charge against him,      everyone is entitled to a ... hearing within a reasonable time      ...."        The Commission observes that the proceedings at issue began on 16 August 1989 when the applicant was arrested, and ended with the Supreme Court's judgment of 8 July 1992. They thus lasted two years, ten months and twenty-two days.        The Government submit that the proceedings against the applicant concerned a complex case. They take the view that the applicant's case was dealt with expeditiously in first instance and on appeal. As regards the lapse of time between the day on which the applicant lodged his appeal in cassation and the date on which the case-file was received by the Supreme Court, the Government submit that, because of the complexity of the case, the detailed elaboration of the Court of Appeal's judgment took some considerable time. In addition, one of the members of the Criminal Division of the Court of Appeal fell ill. Moreover, Section 433 para. 3 of the Code of Criminal Procedure, as amended by the Act of 27 November 1991, only stipulates that the registrar of the court that gave judgment in appeal proceedings is required to forward the documents to the Supreme Court "as soon as possible", which amendment endorsed normal legal practice. Moreover, the Supreme Court, once it had received the case-file, dealt with the case expeditiously.        The applicant submits that his complaint mainly concerns the lapse of more than sixteen months between the date on which he lodged his appeal in cassation and the date on which the Supreme Court started its examination of the case, more than ten months of which concerned the forwarding of the case-file from the Court of Appeal to the Supreme Court. He argues that the complexity of the case, the elaboration of the judgment by the Court of Appeal and the illness of one of the judges of the Criminal Division of the Court of Appeal are irrelevant as regards the delay in sending the case-file to the Supreme Court. The applicant further submits that the amendment to Section 433 para. 3 of the Code of Criminal Procedure did not become effective until 1 May 1992. He further argues that he was in detention when he lodged his appeal in cassation and that, therefore, expediency was required in dealing with his appeal in cassation, despite his release on 5 February 1991.        Having regard to the parties' submissions and the case-law of the Convention organs, the Commission considers that the application raises issues of fact and law which can only be resolved by an examination of the merits. The application cannot therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION ADMISSIBLE,      without prejudging the merits of the case.   Secretary to the Second Chamber       President of the Second Chamber          (M.-T. SCHOEPFER)                       (H. DANELIUS)