FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application No. 39357/98
by B.D.
against the Netherlands
The European Court of Human Rights (First Section) sitting on 8 December 1998 as a Chamber composed of
MrsE. Palm, President
MrJ. Casadevall,
MrL. Ferrari Bravo,
MrC. Bîrsan,
MrB. Zupančič,
MrsW. Thomassen,
MrT. Pantiru,
withMr M. O’Boyle, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 December 1997 by B.D. against the Netherlands and registered on 14 January 1998 under file No. 39357/98;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having deliberated;
Decides as follows:
THE FACTS
The applicant was born in 1964 in the former Yugoslavia and currently resides in Nieuwegein, the Netherlands. She is represented by Mr E.Th. Hummels, a lawyer practising in Utrecht.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 2 April and 6 November 1992 respectively, the applicant reported to the police that her house had been burgled and that a number of items, including a television set, had been stolen. The insurance company Z. paid her subsequent insurance claims.
On 16 November 1992, the investigating judge (Rechter-Commissaris) of the Regional Court (Arrondissementsrechtbank) of The Hague conducted a search of the home of the applicant’s brother and his wife and seized, inter alia, a television set found there. The applicant’s brother and his wife both stated to the police, on 24 and 17 November 1992 respectively, that the television set belonged to the applicant who had brought it to their home.
On 9 February 1993, the insurance company Z. filed a criminal complaint against the applicant for fraud, in which connection the police questioned her on 3 September 1993. By summons of 14 November 1994 the applicant was ordered to appear before the Magistrate (politierechter) of the Regional Court of Utrecht on 31 January 1995 on charges of inter alia fraud and attempted fraud.
By judgment of 31 January 1995, following a hearing held on the same day, the Magistrate convicted the applicant of fraud and attempted fraud and sentenced her to two months’ imprisonment. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam
In its judgment of 10 October 1996, following adversarial proceedings in the course of which hearings were held on 27 February and 26 September 1996, the Court of Appeal quashed the judgment of 31 January 1995, convicted the applicant of fraud and attempted fraud and, noting that the applicant - under different identities - had already been convicted several times of offences of a similar nature, sentenced her to six weeks’ imprisonment.
The Court of Appeal rejected the applicant’s argument that the prosecution should be declared inadmissible on grounds that the proceedings had exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention. It considered that the proceedings at issue had started on 3 September 1993, when the applicant was heard by the police, and found that neither the delays in nor the total length of the proceedings warranted a finding that the proceedings had exceeded a reasonable time.
The applicant filed an appeal in cassation, including a complaint that the Court of Appeal had unjustly rejected the applicant’s argument under Article 6 § 1 of the Convention about the length of the proceedings, with the Supreme Court (Hoge Raad).
The Supreme Court considered the applicant’s appeal in cassation in the course of a hearing held on 10 June 1997.
On 9 December 1997 the Supreme Court rejected the applicant’s appeal in cassation pursuant to Article 101a of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie) as not prompting a determination of legal issues in the interest of legal unity and legal development.
COMPLAINT
The applicant complains that the criminal proceedings against her exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention. She submits that the proceedings did not start on 3 September 1993 but either on 17 November 1992, when a first statement to the police was made by a member of her family, or on 9 February 1993, when the insurance company Z. filed a criminal complaint against her.
THE LAW
The applicant complains of the length of criminal proceedings against her. She invokes Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by a ... tribunal ...”
The Court recalls in the first place that the period to be taken into consideration under Article 6 § 1 must be determined in an autonomous manner. It begins at the time when formal charges are brought against a person or when that person has otherwise been substantially affected by actions taken by the prosecuting authorities as a result of a suspicion against him (cf. Eur. Court HR, Eckle v. Germany judgment of 15 July 1982, Series A no. 50, p. 33, § 73).
The Court cannot find that the applicant was substantially affected by the events prior to her being questioned by the police on 3 September 1993. It accordingly considers that the relevant time began to run on that date and ended with the Supreme Court’s judgment of 9 December 1997. The proceedings thus lasted about four years and three months.
The Court reiterates that 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 HR, Kemmache v. France judgment of 27 November 1991, Series A no. 218, p. 27, § 60). Persons held in detention are further entitled to special diligence (cf. Eur. Court HR, Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, p. 35, § 84).
The Court observes that the case was not complex and that it does not appear that the applicant caused any delays in the proceedings.
As regards the duration of the proceedings, the Court notes that the present case is similar to that of Abdoella v. the Netherlands (Eur. Court HR, judgment of 25 November 1992, Series A no. 248) where the proceedings lasted for four years and four months. In that case, the Court concluded that a reasonable time had been exceeded. However, having regard to the fact that the case had been examined by five courts, the Court did not object to the total duration of the proceedings as such, but rather to the periods of time which elapsed between the judgment of the Court of Appeal and the case-file being received by the Supreme Court. The first such period took twenty-three months, the second took eleven months.
It is true that in the present case also a number of delays occurred, notably between the applicant being questioned by the police and the summons to appear before the Magistrate (slightly more than fourteen months), between the decision of the Magistrate and the first hearing on appeal before the Court of Appeal (slightly less than thirteen months), and between the Court of Appeal’s judgment and the examination of the case by the Supreme Court (eight months).
Nevertheless, the Court considers that there is an important difference with the Abdoella case: contrary to Mr Abdoella, the applicant was not detained pending the proceedings.
In these circumstances, and having regard to the total length of the proceedings of about four years and three months, during which time the case was examined at three levels of jurisdiction, the Court cannot find that this period was unreasonably long for the purposes of Article 6 § 1 of the Convention.
It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Michael O’BoyleElisabeth Palm
RegistrarPresident
Full & Egal Universal Law Academy