Communicated on 22 September 2015
THIRD SECTION
Application no 55385/14
Ilkay BAYDAR
against the Netherlands
lodged on 1 August 2014
STATEMENT OF FACTS
1. The applicant, Mr İlkay Baydar, was born in 1968 and lives in Apeldoorn. He holds both Dutch and Turkish nationalities. He was represented before the Court by Mr Th.O.M. Dieben and Ms G.A. Jansen, lawyers practising in Amsterdam.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. By a judgment of 29 October 2008, the Zutphen Regional Court (rechtbank) convicted the applicant of the offence of transporting 2.800 grams of heroin and of seven counts of smuggling of persons (mensensmokkel, a criminal offence pursuant to article 197a of the Criminal Code) committed jointly with other perpetrators and sentenced him to a partially suspended term of 40 months’ imprisonment.
4. Both the applicant and the prosecution appealed against the Regional Court’s judgment.
5. On 19 July 2011, the Arnhem Court of Appeal (gerechtshof) gave its judgment, again convicting the applicant of the offence of transporting heroin and also of four counts of smuggling of persons, sentencing him to 40 months’ imprisonment less the time spent in pre-trial detention. The Court of Appeal found established based on the evidence adduced before it, that the applicant and his co-perpetrators – participating in an international organisation aimed at human trafficking – had, for purposes of financial gain, facilitated the unauthorised residence of a total of 20 Iraqi migrants in the Netherlands, Germany and Denmark, the commission of which offences had taken place from 10 November 2006 until 17 January 2007.
6. The applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad). In his written grounds of appeal of 8 August 2013, he raised, inter alia, a complaint regarding the four counts of human trafficking of which he had been convicted by the Court of Appeal. The applicant contended that the Court of Appeal had convicted him of the facilitation of unauthorised “residence”, penalised in article 197a § 2 of the Criminal Code, but that the evidence relied on by the Court of Appeal to ground that conviction did not prove that the Iraqi migrants had had “residence” in the Netherlands, Germany or Denmark. Instead, the evidence demonstrated that the applicant had organised and financed the Iraqi migrants’ transport to Denmark via the Netherlands and Germany, which transports had been intercepted each time in the latter country. As the migrants’ stay in the Netherlands and Germany had only been brief and transitory and they had never even entered Denmark, there was, according to the applicant, no proof of “residence” in those countries. In that regard, the applicant referred to European Union law, namely Council Directive 2002/90/EG of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (hereinafter “the Directive”) and Council Framework Decision 2002/946/JBZ of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence (hereinafter “the Framework Decision”). Submitting that article 197a of the Criminal Code had been amended to implement the Directive, the applicant argued that the facilitation of unauthorised “residence” within the meaning of article 197a § 2 should be understood as entailing a long-term stay, to be discerned from “transit” or “entry” penalised by the first paragraph of that provision, which paragraph had been added to article 197a when the Directive had been implemented.
7. On 10 December 2013, the Advocate General (advocaat-generaal) to the Supreme Court expressed in his advisory opinion, inter alia, that the applicant’s appeal should be dismissed with the exception of the first ground which pertained to the length of proceedings: the cassation proceedings had lasted too long, for which a reduction of sentence was to be applied. With regard to the applicant’s complaint that the evidence did not show any “residence” of the migrants in the countries at issue, the Advocate General was of the opinion that article 197a § 2 of the Criminal Code called for a broad interpretation of “residence” as had been the case prior to the implementation of the Directive and the Framework Decision. Since that implementation was intended to broaden the scope of article 197a of the Criminal Code, the second paragraph of that provision retained its broad meaning of “residence” encompassing “transit”. The separate penalisation in the first paragraph of the facilitation of unauthorised “transit and entry” did not change the broad scope of paragraph 2. The Advocate General thus concluded that the applicant’s complaint in this matter should be dismissed.
8. On 24 December 2013, the applicant submitted a written reply - within the meaning of article 439 § 5 of the Code of Criminal Procedure - to the Advocate General’s advisory opinion. He made a conditional request (for the first time) for a preliminary question to be put to the Court of Justice of the European Union (hereinafter “CJEU”) about the interpretation of “residence” within the context of the Directive and the Framework Decision, should the Supreme Court concur with the Advocate General on this issue.
9. On 4 March 2014, the Supreme Court gave its judgment, dismissing all grounds of appeal submitted by the applicant save his complaint that the cassation proceedings had lasted too long, for which it compensated the applicant by reducing his prison sentence by six months. In its reasoning, the Supreme Court did not deal with the applicant’s request for a preliminary question to be put to the CJEU.
10. No further appeal was possible against the Supreme Court’s judgment.
COMPLAINT
11. The applicant alleged that his right to a fair trial under Article 6 § 1 of the Convention had been infringed in that the Supreme Court had ignored his request for the case to be referred to the CJEU for a preliminary ruling.
QUESTION
Was the Supreme Court’s implicit refusal of the applicant’s request – as contained in his written comments to the advisory opinion of the Advocate General – to seek a preliminary ruling from the Court of Justice of the European Union, in the specific procedural context and/or with a view to the reasoning underlying the request, compatible with the requirement to give reasons for judgments under Article 6 § 1 of the Convention?
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