AS TO THE ADMISSIBILITY OF
Application No. 30305/96
by Hubertus Johannes AIPASSA
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 26 February 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
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 30 November 1995
by Hubertus Johannes AIPASSA against the Netherlands and registered on
27 February 1996 under file No. 30305/96;
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 citizen, born in 1969, and resides in
Voorthuizen, the Netherlands. Before the Commission he is represented
by Mr. J.B. Boone, a lawyer practising in Wijk bij Duurstede, the
Netherlands.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 14 October 1992 the applicant was arrested and subsequently
detained on remand on suspicion of having assaulted Ms. B. on
11 October 1992. According to the procès-verbal of the interview
conducted by an assistant public prosecutor, which took place
immediately after the applicant's arrest, the applicant confessed to
having beaten Ms. B. and he expressed his regret. The applicant was
released on 15 October 1992.
The applicant was summoned to appear before the Regional Court
(Arrondissementsrechtbank) of Arnhem on 9 March 1994. He was charged
with the assault on Ms. B. and with three other offences relating to
an assault on a different person and a serious traffic accident caused
by him. These latter offences had taken place on 30 April 1993 and on
28 June 1993.
On 23 March 1994 the Regional Court convicted the applicant of
all the charges and sentenced him to twelve months' imprisonment less
the time spent in pre-trial detention, whereas of these twelve months
four were suspended pending a probation period of two years. The
Regional Court also disqualified the applicant from driving for a
certain period.
Both the applicant and the prosecution filed an appeal against
the Regional Court's decision with the Court of Appeal (Gerechtshof)
of Arnhem. The applicant stated, inter alia, that the prosecution
should be declared inadmissible in respect of the offence which had
taken place on 11 October 1992, since in the determination of this
charge he had not been granted a hearing within a reasonable time. He
explicitly invoked Article 6 of the Convention.
Following a hearing on 3 October 1994, during which the Court of
Appeal adjourned the examination of the charge of assault which had
taken place on 30 April 1993, it quashed the Regional Court's judgment
on 17 October 1994, convicted the applicant of the other charges and
sentenced him to eighteen months' imprisonment less the time spent in
pre-trial detention, whereas of these eighteen months six were
suspended pending a probation period of two years. Also a longer period
of disqualification from driving was imposed. As regards Article 6
para. 1 of the Convention, the Court of Appeal considered that the
period of seventeen months which had elapsed between the applicant's
arrest and the hearing before the Regional Court could not be regarded
as unreasonable.
The applicant filed an appeal in cassation against this judgment
with the Supreme Court (Hoge Raad). He repeated his submissions in
respect of Article 6 para. 1 of the Convention. In support of hisappeal
in cassation, he referred to the Commission's decisions on the
admissibility in No. 20882/92, Dec. 11.5.94, Mangwa v. the Netherlands
and No. 23073/93, Dec. 11.1.95, B. v. the Netherlands.
The Procurator General (Procureur-Generaal) advised the Supreme
Court to reject the applicant's appeal in cassation. He noted that the
Commission's decisions referred to could not be compared with the
applicant's case, since they concerned the period of time which had
elapsed between the filing of an appeal in cassation and the
examination of that appeal by the Supreme Court. Furthermore, the
accused in those cases, unlike the applicant, had been kept in
detention on remand during the proceedings.
In its judgment of 6 June 1995 the Supreme Court rejected the
applicant's appeal in cassation.
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. In this respect he submits that nearly 17 months
elapsed between his arrest and the hearing before the Regional Court,
even though the facts of the case were not particularly complex since
he had confessed to the offence he was charged with.
THE LAW
The applicant complains that the criminal proceedings against him
exceeded a reasonable time within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention. This provision, 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."
According to the constant case-law of the Court and the
Commission, the reasonableness of the length of proceedings must be
assessed in the light of the circumstances of each case and having
regard in particular to the following criteria: the complexity of the
case, the conduct of the applicant and that of the competent
authorities (cf. Eur. Court H.R., Kemmache v. France judgment of
27 November 1991, Series A no. 218, p. 27, para. 60). Persons held in
detention are further entitled to special diligence (cf. Eur. Court
H.R., Tomasi v. France judgment of 27 August 1992, Series A no. 241-A,
p. 35, para. 84).
In the present case, the proceedings started on 14 October 1992,
when the applicant was arrested, and ended on 6 June 1995, when the
Supreme Court rejected the applicant's appeal in cassation. The entire
proceedings lasted thus slightly less than two years and eight months.
It further appears that the applicant was not detained pending the
proceedings against him.
Insofar as the applicant complains of the delay between his
arrest on 14 October 1992 and the first hearing before the Regional
Court on 9 March 1994, the Commission notes that in the proceedings at
issue the applicant was not solely charged with the assault on Ms B.,
but also with other offences relating to facts which took place on
30 April 1993 and 28 June 1993.
In these circumstances, the Commission considers that the period
of time which elapsed between 14 October 1992 and 9 March 1994 cannot
be characterised as totally inactive. The Commission is, therefore, of
the opinion that the delay complained of cannot be considered as having
exceeded a reasonable time within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention.
As regards the total length of proceedings, i.e. slightly less
than two years and eight months in the course of which the case has
been dealt with at three levels of jurisdiction, the Commission cannot
find either that this period was unreasonably long for the purposes of
Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy