CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 1997

.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. 25507/94                       by S.E.W.                       against the Netherlands        The European Commission of Human Rights (Second Chamber) sitting in private on 2 July 1997, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              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 12 July 1994 by S.E.W. against the Netherlands and registered on 27 October 1994 under file No. 25507/94;        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      2 January 1996 and the observations in reply submitted by the      applicant on 6 March 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Canadian national, born in 1951 in Lebanon, and currently resides in Rotterdam. Before the Commission he is represented by Mr. G. Spong, a lawyer practising in the Hague.        The facts of the case, as submitted by the parties, may be summarised as follows.        In April 1985 a business contact of the applicant made a statement to the police, accusing the applicant of forging bills of lading in connection with a shipment of 25 non-existent passenger cars from the Netherlands to Kuwait. From the subsequent police inquiry it appeared that the applicant, who had been running an export company dealing in passenger cars, had left the Netherlands on 15 March 1985, whereas the alleged offence had taken place just before that date. An international warrant for the applicant's arrest was issued on 6 August 1985.        On 10 June 1986 the investigating judge (Rechter-Commissaris) closed the preliminary judicial investigation (gerechtelijk voor- onderzoek) regarding the applicant and, since the applicant's address was unknown at that time, deposited the notifications of this closure and of the prosecution's decision to commit the applicant for trial (kennisgeving van verdere vervolging) with the Registry of the Rotterdam Regional Court (Arrondissementsrechtbank) on 18 June and 4 July 1986 respectively.        On the basis of the international arrest warrant, the applicant was apprehended by the authorities of the United States of America at the airport of Los Angeles on 7 June 1988 and was informed that he was wanted in the Netherlands. With reference to the international arrest warrant's diffusion number 6.813.3/81, the applicant's full name and date of birth, the authorities of the USA informed the Dutch authorities of this arrest, requesting them to urgently confirm the warrant and whether extradition would be sought.        The Dutch authorities were unable to verify, within the time- limit of 48 hours set for this purpose, whether the identity of the arrested person corresponded to the applicant's. After the expiry of this time-limit, the applicant was released from the federal prison where he had been detained for lack of an extradition request.        It appears that the applicant was again arrested and detained in the United States in the beginning of March 1990. He was informed that he had been arrested at the request of the Dutch judicial authorities and that they suspected him of forgery. Following consultations between the Prosecutions Department (Openbaar Ministerie) of Rotterdam and the United States Justice Department, the applicant's extradition was requested on 30 March 1990. As the applicant did not contest his extradition, he was extradited to the Netherlands on 9 April 1990 and subsequently detained on remand.        On 20 April 1990 the applicant was summoned to appear before the Regional Court of Rotterdam on 27 June 1990. He was released on 2 May 1990.        At the hearing before the Regional Court on 27 June 1990 the applicant's lawyer argued that the determination of the criminal charges against his client could not be held to have taken place within a reasonable time.        By interlocutory judgment of 10 July 1990 the examination of the case was suspended in order for an investigation to be carried out by the investigating judge into the question whether or not the Prosecutions Department had been, or could have been, aware, by seeking information from Interpol Canada, of the applicant's address in Canada at the time of the notification of the   prosecution's decision to commit the applicant for trial. Should this have been the case, the notification had been deposited with the Regional Court's Registry contrary to provisions of the Code of Criminal Procedure (Wetboek van Strafvordering), entailing the inadmissibility of the prosecution. In order to clarify this issue, the investigating judge travelled to Canada.        Following a second hearing on 17 April 1991, the Regional Court, on 1 May 1991, found that it had not been established that Interpol Canada was aware of the applicant's address on 4 July 1986 and, consequently, that the Prosecutions Department had acted correctly in depositing the above-mentioned notification with the Registry of the Court. The applicant was found guilty of forgery and sentenced to 15 months' imprisonment with deduction of the time spent in detention in the United States pending the Netherlands' request for his extradition and the time spent in pre-trial detention in the Netherlands.        The Regional Court held that, as the applicant had left the Netherlands and could not be found for a long time in spite of sufficient efforts thereto by the prosecuting authorities, the delay which had occurred between the offence being committed and the case going to trial could not be attributed to the Prosecutions Department. In addition, the Regional Court stated that the applicant could himself at any time have shortened this period by travelling to the Netherlands.        On 7 May 1991 the applicant filed an appeal with the Court of Appeal (Gerechtshof) of The Hague against the Regional Court's judgment of 1 May 1991.        A hearing took place before the Court of Appeal on 6 November 1992 and, in its judgment of 20 November 1992, the Court of Appeal quashed the decision of the Regional Court for technical reasons, convicted the applicant of forgery and sentenced him to 12 months' imprisonment with deduction of the time spent in detention in the United States pending the Netherlands' request for his extradition and the time spent in pre-trial detention in the Netherlands.        The Court of Appeal rejected the argument of the defence that the prosecution should be declared inadmissible on grounds that the proceedings had exceeded a reasonable time within the meaning of Article 6 para. 1 of the Convention. It held that neither the period between the applicant's arrest on 7 June 1988 and the examination of the case by the Regional Court on 27 June 1990 nor the period between the filing of the appeal by the applicant on 7 May 1991 and the examination of the case on appeal had been such as to justify the conclusion that the determination of the criminal charges had exceeded the reasonable time entailing the inadmissibility of the prosecution. In this respect, the Court considered irrelevant the time between 10 July 1990 and 17 April 1991 during which the investigation into the Prosecutions Department's knowledge of the applicant's address in Canada had taken place, since this investigation had been necessitated by the applicant's claim that the prosecution should be declared inadmissible for not correctly having notified the applicant of the decision to commit him for trial.        Although the Court of Appeal agreed with the sentence imposed on the applicant by the Regional Court, it nevertheless imposed a lighter sentence having regard to the time which had elapsed since the commission of the offence.        The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad) on 25 November 1992 against the Court of Appeal's decision of 20 November 1992. He complained, inter alia, of the length of proceedings.        At the end of October 1993 the applicant's case-file was received by the Supreme Court from the Registry of the Court of Appeal.        A hearing took place before the Supreme Court on 18 January 1994, during which the applicant, with reference to his complaint of the length of the proceedings, also drew attention to the time which had elapsed between the lodging of the appeal in cassation and the examination of the case by the Supreme Court.        On 3 May 1994, the Supreme Court rejected the appeal in cassation. With regard to the length of the proceedings, it accepted the Court of Appeal's considerations and, furthermore, did not find that the period which had passed between the lodging of the appeal in cassation and the Supreme Court's hearing constituted a breach of Article 6 para. 1 of the Convention.     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. He submits in particular that the delays which occurred between his arrest at the Los Angeles airport on 7 June 1988 and the first hearing before the Regional Court on 27 June 1990, the judgment of the Regional Court of 1 May 1991 and the examination of the case by the Court of Appeal on 6 November 1992, and the decision of the latter Court of 20 November 1992 and the hearing before the Supreme Court on 18 January 1994 cannot be regarded as reasonable.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 12 July 1994 and registered on 27 October 1994.        On 19 October 1995 the Commission decided to communicate the application to the respondent Government inviting them, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure, to submit written observations on the admissibility and merits of the application.        The Government's written observations were submitted on 2 January 1996. The applicant replied on 6 March 1996.     THE LAW        The applicant complains that the criminal proceedings against him were not 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 Government submit in the first place that the applicant can no longer claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention as, in the determination of the applicant's sentence, both the Regional Court and the Court of Appeal explicitly took into account the time which had elapsed between the commission of the offence at issue and their respective judgments.        As to the substance, the Government are of the opinion that the applicant's first arrest on 7 June 1988 may be regarded as the start of the proceedings, but that the Netherlands authorities cannot be held responsible for the delay which occurred between the applicant's release and his subsequent arrest in March 1990, as, aware of the existence of a warrant for his arrest, the applicant chose to remain abroad and to evade apprehension by the Dutch authorities. Although the applicant is solely responsible for this delay, the Dutch courts allowed him some clemency for the passage of time between the commission of the offences and the applicant's conviction.        The Government further submit that the applicant's objection was thoroughly investigated, which inevitably took some time. They further submit that the proceedings against the applicant before the trial courts were conducted within a reasonable time and that no unacceptably long delays occurred. In this respect the Government further point out that, apart from the period between 9 April to 2 May 1990, the applicant was not detained pending the proceedings against him.        The applicant submits that, as the Dutch authorities failed to act timely on the information - which included his full personal details   - that he had been arrested in the USA on 7 June 1988, the Dutch authorities bear responsibility for the delay between his first and second arrest.        As to the reduction of his sentence based on the lapse of time between the commission of the offence and the judgment of the Court of Appeal, the applicant submits that this does not constitute sufficient redress. In his opinion, the prosecution should have been declared inadmissible on the basis of the duration of the proceedings.        The applicant finally submits that the fact that he availed himself of all the available remedies cannot be held against him, that in any event the Dutch authorities are obliged to organise their legal system in such a way that, even where an accused uses all available remedies, a trial is held within a reasonable time, and that the complexity of the case is an insufficient explanation for the total duration of the proceedings at issue.        After an examination of the complaint in the light of the parties' submissions, the Commission considers that it raises issues of fact and law requiring an examination of the merits. The application cannot, therefore, be declared 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.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber