AS TO THE ADMISSIBILITY OF
Application No. 14056/88
by Martinus Godefridus AARTS
against the Netherlands
The European Commission of Human Rights sitting in private
on 5 October 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 2 June 1988
by Martinus Godefridus AARTS against the Netherlands and registered
on 26 July 1988 under file No. 14056/88;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to the observations sumbitted by the respondent
Government on 15 May 1990 and the observations in reply submitted by
the applicant on 18 June 1990;
Having deliberated;
Decides as follows:
THE FACTS
The facts as submitted by the parties may be summarised as
follows.
The applicant is a Dutch citizen born in 1945 and residing in
's-Hertogenbosch. He is unemployed. Before the Commission he is
represented by Mr. H.H.M. van Dijk, a lawyer practising in Oss.
In early March 1982 the applicant was interrogated together
with two co-defendants on charges of forgery and the illegal
possession of a gun. They were subsequently prosecuted.
The two co-defendants were convicted by the Regional
Court (Arrondissementsrechtbank) of Breda on 27 January 1983. The
Regional Court delayed the applicant's case because he had become ill
before the trial. The co-defendants appealed to the Court of Appeal
(Gerechtshof) of 's-Hertogenbosch on 27 January 1983.
On 26 April 1983 the Regional Court of Breda found the
applicant guilty of several charges. He appealed to the Court of
Appeal of 's-Hertogenbosch on the same day.
On 21 February 1985 a summons was served on the applicant to
appear before the Court of Appeal on 14 March 1985. On 22 August
1985 the Court of Appeal quashed the decision of the Regional Court
and convicted the applicant on only one charge of forgery. It
sentenced him to one year's imprisonment of which six months were
suspended with a probationary period of two years. It held, inter
alia, that the lapse of time between the introduction of the appeal
on 26 April 1983 and the summons on 21 February 1985 was longer than
is generally regarded as appropriate. However, this alone could not
constitute a violation of the requirement of reasonable time.
Moreover, no special circumstances had been put forward which would
justify a different view.
The two co-defendants were convicted by the Court of Appeal of
's-Hertogenbosch on the same day and received the same sentence. In
the case of the first co-defendant the Court of Appeal rejected the
complaint of the length of proceedings on identical grounds. The
second co-defendant had not raised a complaint in this regard.
The applicant and the two co-defendants appealed in cassation
to the Supreme Court (Hoge Raad).
On 13 December 1986 the Supreme Court rejected the applicant's
appeal. It held, inter alia, that the applicant had only complained
before the Court of Appeal of the length of the proceedings as from
the introduction of the appeal. Therefore, the Court of Appeal only
had to consider this period, which it correctly found to be in
accordance with Article 6 of the Convention.
The applicant alleges that the judgment of the Supreme Court
was not notified to him and that he only learned of the judgment after
contacting the Supreme Court in January 1988.
The Government state that the judgment was communicated by
means of a registered letter which on 6 February 1987 was handed to
Mr. P. who lived in the same house as the applicant.
On 3 February 1987 the Supreme Court decided on the appeals of
the two co-defendants. In the first case it stated that the Court of
Appeal had not properly motivated why the delay between the appeal (on
27 January 1983) and the proceedings before the Court of Appeal
(on 15 February 1985) was not in breach of Article 6 para. 1 of the
Convention. Therefore, it quashed the decision of the Court of
Appeal of 's-Hertogenbosch and referred the case back to the Court of
Appeal of Arnhem. In the other case the Supreme Court also decided to
refer the case back on the same ground, on its own motion, since this
co-defendant had not raised this complaint either before the Court of
Appeal, or before the Supreme Court.
On 2 July 1987, the Court of Appeal decided to declare the
prosecution against the two co-defendants inadmissible.
On 2 June 1988, the applicant addressed a petition to the
Queen of the Netherlands, requesting that the prison sentence imposed
on him by the 's-Hertogenbosch Appeal Court be remitted. The reasons
given for this petition for pardon were the same as those given in the
present application. The 's-Hertogenbosch Appeal Court was asked to
make a recommendation in connection with the petition. Given that the
three criminal cases were dealt with at virtually the same time and
with due regard to the principle of equality before the law, the
Appeal Court recommended that the petition be granted. The applicant
was pardoned on 10 November 1988, in that the part of the 12 months'
prison sentence that was not suspended (which was six months, less the
period already spent in custody) was remitted.
COMPLAINTS
The applicant complains that he did not receive a fair hearing
within a reasonable time contrary to Article 6 para. 1 of the
Convention. In particular, he refers to the cases of his two
co-defendants who were acquitted because their cases were not dealt
with within a reasonable time. He suggests that the Supreme Court
may have mistaken his case for that of the second co-defendant in
which no complaint about the length of proceedings was made.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 2 June 1988 and registered
on 26 July 1988.
The Commission decided on 12 March 1990 to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on the applicant's complaint
concerning the length of the proceedings.
The Government's observations were received on 15 May 1990 and
the applicant's observations in reply on 18 June 1990.
THE LAW
The applicant complains that he did not receive a fair hearing
within a reasonable time contrary to Article 6 para. 1 (Art. 6-1) of the
Convention. In particular, he refers to the cases of his two
co-defendants who were acquitted because their cases were not dealt
with within a reasonable time. He suggest that the Supreme Court
may have mistaken his case for that of the second co-defendant in
which no complaint about the length of proceedings was made.
The Government have first submitted that the application
should be rejected on the basis of the six months' rule stipulated in
Article 26 (Art. 26) of the Convention, since the applicant did not lodge a
complaint with the Commission until 2 June 1988, that is more than six
months after the date when the Supreme Court's judgment was
communicated to the applicant. Pursuant to Section 585 of the Code of
Criminal Procedure (Wetboek van Strafvordering) the notification of a
judicial decision should be done by means of an ordinary or registered
letter delivered by mail. In the case concerned, a registered letter
was delivered on 6 February 1987 at 13.40 hours at the applicant's
address to Mr. P. who lived in the same house.
The applicant states that if the letter was so delivered,
Mr. P. did not forward the letter to him. He submits that he did not
learn about the judgment until he contacted the Supreme Court in
January 1988.
The Commission first recalls that the six months' time-limit
is respected when an application is introduced not more than six
months after the applicant has become aware of the decision
constituting the final decision within the meaning of Article 26
(Art. 26) of the Convention (No. 10107/82, Dec. 12.7.84, D.R. 38
p. 90). In the present case, the Government have stated that a letter
containing the decision concerned was handed over on 6 February 1987
to a person living in the same house as the applicant. However, it
has not been shown that the applicant himself became aware of the
decision before January 1988.
Accordingly the Commission considers that the application
should not be declared inadmissible for non-compliance with the six
months' rule.
As to the merits of the application, the Government state
that, according to the Supreme Court's case-law, a period of two years
between the lodging of an appeal and the date on which the case is
heard may generally be said to be unreasonable. The Government
observe that in the applicant's case, this particular period was less
than two years, which makes his case different from the cases of the
two co-defendants.
The Government further submit that the applicant was pardoned
on 10 November 1988. The Government therefore considers that he cannot
claim to be a victim of a violation of Article 6 para. 1 (Art. 6-1) of the
Convention, within the meaning of its Article 25 (Art. 25). They
refer to the Van Droogenbroeck judgment (Eur. Court H.R., Van
Droogenbroeck judgment of 24 June 1982, Series A no. 50), the Eckle
judgment (Eur. Court H.R., Eckle judgment of 15 July 1982, Series A
no. 51) and the Commission's case-law (cf. Pannetier v. Switzerland,
Comm. Report 12.7.85, D.R. 46 p. 5).
The applicant alleges that he is still a victim of the
violation of Article 6 para. 1 (Art. 6-1) of the Convention, even
though a part of his sentence was later remitted by way of a pardon.
He notes that his criminal record still mentions the Appeals Court's
sentence of 22 August 1985. This makes his situation different from
those of his co-defendants who were finally acquitted.
The Commission considers that the complaint concerning the
length of the proceedings raises difficult questions of fact and law
which are of such complexity that their determination should depend on
an examination of the merits. The application is therefore not
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention and no other grounds for declaring it
inadmissible 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 Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy