AS TO THE ADMISSIBILITY OF
Application No. 13645/88
by Johannes BUNKATE
against the Netherlands
The European Commission of Human Rights (Second Chamber)
sitting in private on 8 July 1991, the following members being
present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
H.G. SCHERMERS
Mrs. G. H. THUNE
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
Mr. K. ROGGE, Secretary to the Second 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 24 November
1987 by Johannes Maria Clemens BUNKATE against the Netherlands and
registered on 7 March 1988 under file No. 13645/88;
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 1949 and residing in
The Hague, the Netherlands. He is a merchant. Before the Commission
he is represented by Mrs. G.S. Koopman-Rond, a lawyer practising in
The Hague.
The facts as submitted by the parties may be summarised as
follows.
On 12 September 1983 the applicant was arrested in The Hague
in order to stand trial on charges of fraud. He was placed in
detention on remand until 16 December 1983 when he was released by
order of the Public Prosecutor (Officier van Justitie) on grounds of
cell-shortage. Preliminary investigations (gerechtelijk
vooronderzoek) were held between 16 September 1983 and 19 October 1983.
On 5 January 1984 the Regional Court (Arrondissementsrechtbank)
of The Hague convicted and sentenced the applicant to one year
imprisonment. The same day both the applicant and the Public
Prosecutor appealed to the Court of Appeal (Gerechtshof) of The Hague.
After the decision of the Regional Court the applicant went to
the Dominican Republic (7 January 1984). During his visit he was
reported dead in the Netherlands based on an official act of the
competent Dominican authorities. His death was registered in The
Hague on 18 May 1984. The applicant returned to the Netherlands on 19
November 1984. On his behalf, his mother requested on 3 December 1984
a court order from the Regional Court of The Hague for correction of
the death certificate. On 2 October 1985 the applicant obtained this
court order and the register was changed accordingly on 25 June 1986.
The hearing before the Court of Appeal concerning the
applicant's appeal against the conviction and sentence started on
14 May 1985. In its judgment of 28 May 1985 the Court of Appeal
confirmed the conviction but increased the sentence of imprisonment to
one year and four months.
The applicant appealed to the Supreme Court (Hoge Raad) on
10 June 1985. The Court of Appeal transferred the case-file to the
Supreme Court 151/2 months later, i.e. on 23 September 1986. On 17
February 1987 the Attorney General (Procureur Generaal) gave his
opinion and on 26 May 1987 the Supreme Court rejected the appeal. It
held, inter alia, that, although the delay between the appeal to the
Supreme Court and the hearing before it was unusually long, it did not
exceed the requirement of reasonable time within the meaning of
Article 6 of the Convention. It held in addition that the fact that
the applicant's lawyer had regularly inquired about the progress of
her client's case did not alter this conclusion, since she apparently
did not request that the case be dealt with speedily.
COMPLAINTS
The applicant complains of the duration of the proceedings
especially with regard to the period between the judgment of the Court
of Appeal and the judgment of the Supreme Court. He invokes Article 6
para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 November 1987 and
registered on 7 March 1988.
On 12 October 1989 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the complaint
under Article 6 para. 1 of the Convention concerning the length of the
proceedings.
The Government's observations were received by letter dated 18
December 1989 and the applicant's observations were dated 1 March 1990.
On 8 January 1991 the Commission decided to refer the
application to the Second Chamber.
THE LAW
The applicant complains about the length of the proceedings,
in particular with regard to the period between the judgment of the
Court of Appeal and the judgment of the Supreme Court, which period
amounts to 2 years. In this respect, he relies on Article 6 para. 1
(Art. 6-1) of the Convention, which reads insofar as relevant:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal..."
1. The Government submit that the applicant has not exhausted
domestic remedies as required by Article 26 (Art. 26) of the
Convention in that he failed to invoke Article 6 (Art. 6) of the
Convention before the Regional Court and the Court of Appeal
respectively.
The applicant states that his complaint under Article 6
(Art. 6) concerns the length of the period between the judgment of the
Court of Appeal and the judgment of the Supreme Court.
Under Article 26 (Art. 26) of the Convention the Commission
may only deal with a matter after all remedies have been exhausted
according to the generally recognised rules of international law.
The Commission considers that the applicant's complaint
concerns essentially the length of the period between the judgment of
the Court of Appeal and the judgment of the Supreme Court and that
this complaint has been raised before the Supreme Court. In these
circumstances, the application cannot be declared inadmissible for
non-exhaustion of domestic remedies according to Article 27 para. 3
(Art. 27-3) of the Convention.
2. With regard to the merits of his complaint, the applicant
argues that mainly the Court of Appeal was responsible for the delay,
as the Supreme Court did not receive the case-file until 23 September
1986, i.e. 151/2 months after the Court of Appeal's judgment of 28 May
1985. The applicant notes that this delay was due to illness of staff
members of the Court of Appeal but he considers that in such important
matters as the present one, where an individual's liberty is at stake,
this does not constitute a valid excuse. In addition, he points out
that his representative has pressed for an urgent hearing before the
Supreme Court on several occasions.
The Government submit that the complaint is in any event
manifestly ill-founded since the Supreme Court, once it received the
case-file, delivered judgment within a reasonable time and there is no
evidence that the applicant's representative did press for an urgent
hearing in cassation.
The Commission has taken cognizance of the parties
submissions. After a preliminary examination of the case the
Commission finds that the application concerns a serious issue which
must be examined on the merits. The application cannot therefore be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention. No other reason for
declaring the application inadmissible has been established.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy