EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 13645/88
BUNKATE J.
against
the NETHERLANDS
REPORT OF THE COMMISSION
adopted on 1 April 1992
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16) ......................................... 1
A. The application
(paras. 2-5) .................................. 1
B. The proceedings
(paras. 6-11) ................................. 1
C. The present Report
(paras. 12-16) ................................ 2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-21) ........................................ 3
III. OPINION OF THE COMMISSION
(paras. 22-36) ....................................... 4-5
A. Complaint declared admissible (para. 22) ...... 4
B. Point at issue (para. 23) ..................... 4
C. General considerations
(paras. 24-25) ................................ 4
D. Determination and assessment of the length of
the proceedings (paras. 26-34) ................ 4-5
G. Conclusion (para. 35) ......................... 5
APPENDIX I : HISTORY OF THE PROCEEDINGS .................. 6
APPENDIX II : DECISION ON THE ADMISSIBILITY ............... 7
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Dutch citizen, born in 1949 and residing in
The Hague, the Netherlands. Before the Commission the applicant is
represented by Mrs. G.S. Koopman-Rond, a lawyer practising in The
Hague.
3. The application is directed against the Netherlands. The
respondent Government are represented by their Agent, Mrs. D.S. van
Heukelom, succeeded by Mr. Karel de Vey Mestdagh, both of the
Netherlands Ministry of Foreign Affairs.
4. The application concerns the complaint under Article 6 para. 1
of the Convention about the length of criminal proceedings. These
proceedings started on 12 September 1983 when the applicant was
arrested on charges of forgery and ended on 26 May 1987 with the
Supreme Court's decision to reject the applicant's appeal in cassation.
5. Before the Commission the applicant complains of the length of
the proceedings and alleges a violation of Article 6 para. 1 of the
Convention.
B. The proceedings
6. The application was introduced on 24 November 1987 and registered
on 7 March 1988 under file No. 13645/88. On 12 October 1989 the
Commission decided to give notice of the application to the respondent
Government, inviting them to submit observations in writing on the
admissibility and merits of the application.
7. The Government submitted their observations on 18 December 1989
and the applicant replied on 1 March 1990. The applicant was granted
free legal aid on 18 May 1990.
8. The Commission referred the application to the Second Chamber on
8 January 1991.
9. On 8 July 1991 the Commission (Second Chamber) declared the
applicant's complaint under Article 6 para. 1 of the Convention as to
the length of the proceedings admissible.
10. On 15 July 1991 the parties were invited, should they so desire,
to submit further observations regarding the merits of the application.
They did not avail themselves of this possibility.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1(b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement of the case. In the light of the parties'
reactions, the Commission now finds that there is no basis on which
such a settlement can be effected.
C. The present Report
12. The present Report has been drawn up by the Commission (Second
Chamber) in pursuance of Article 31 para. 1 of the Convention and after
deliberations and votes, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
MM. F. MARTINEZ RUIZ
L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
13. The text of this Report was adopted by the Commission on 1 April
1992 and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
14. The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is:
a) to establish the facts, and
b) to state an opinion as to whether the facts
found disclose a breach by the State concerned
of its obligations under the Convention.
15. A schedule setting out the history of the proceedings before the
Commission is attached hereto as APPENDIX I and the Commission's
decision on the admissibility of the application as APPENDIX II.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
17. On 12 September 1983 the applicant was arrested in The Hague on
suspicion of having committed forgery. He was placed in detention on
remand until 16 December 1983 when he was released by order by 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.
18. On 5 January 1984 the Regional Court (Arrondissementsrechtbank)
of The Hague convicted the applicant and sentenced him to one year's
imprisonment. On the same day both the applicant and the Public
Prosecutor appealed to the Court of Appeal (Gerechtshof) of The Hague.
19. After the judgment of the Regional Court the applicant went to
the Dominican Republic on 7 January 1984. During his visit he was
reported dead in the Netherlands on the basis of an official document
issued by 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.
20. The hearing before the Court of Appeal concerning the applicant's
appeal against his 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.
21. The applicant appealed to the Supreme Court (Hoge Raad) on 10
June 1985. The Court of Appeal transmitted the case-file to the
Supreme Court 15½ months later, i.e. on 23 September 1986. On 17
February 1987 the Attorney General (Procureur Generaal) filed his
submissions 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 para. 1 of the Convention. This conclusion was not altered by the
fact that the applicant's lawyer had regularly inquired about the
progress of the case, since she had apparently not requested that the
case be dealt with speedily.
It is disputed between the parties whether the applicant's
representative did press for an urgent hearing in cassation.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
22. The Commission has declared admissible the applicant's complaint
under Article 6 para. 1 (Art. 6-1) of the Convention concerning the
length of the criminal proceedings against him.
B. Point at issue
23. The point at issue is accordingly whether there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
C. General considerations
24. Article 6 para. 1 (Art. 6-1) first sentence of the Convention
stipulates:
"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."
25. The three criteria established by the case-law of the European
Commission and Court of Human Rights for assessing whether or not the
length of proceedings has been reasonable are the complexity of the
case, the conduct of the applicant and the conduct of the competent
authorities (see Eur. Court H.R., Kemmache judgment of 27 November
1991, Series A no. 218, para. 60).
D. Determination and assessment of the length of the proceedings
26. The proceedings at issue began on 12 September 1983, when the
applicant was arrested and charged with forgery. They ended with the
Supreme Court's decision of 26 May 1987 to reject the applicant's
appeal in cassation.
27. The total length of proceedings thus comes to 3 years, 8 months
and 14 days.
28. According to the applicant, this lapse of time and in particular
the time between the decision of the Court of Appeal (28 May 1985) and
the decision of the Supreme Court (26 May 1987), i.e. 2 years, cannot
be regarded as "reasonable" within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention. His representative pressed on several
occasions for an urgent hearing before the Supreme Court and illness
of staff members of the Court of Appeal is not a valid justification
for this delay.
29. The Government submit that the delay is essentially due to
illness of the Court of Appeal's staff members. Therefore the period
between the decision of the Court of Appeal and the decision of the
Supreme Court, although long, was not unreasonable. The Government
contest that the applicant's representative pressed for an urgent
hearing in cassation.
30. The Commission notes that the first instance and the appeal
proceedings lasted for 20½ months. In view of the circumstances
described above (paras. 17-20) it does not find this period
unreasonably long.
31. The proceedings before the Supreme Court lasted about 2 years.
31. The Commission does not consider that the issue before the
Supreme Court was of such complexity as to justify the length of the
proceedings.
32. As regards the conduct of the parties it notes that the applicant
filed an appeal in cassation on 10 June 1985 but that the Court of
Appeal did not forward the case-file to the Supreme Court until 23
September 1986, i.e. 1 year 3 months and 13 days later. The Attorney
General filed his submissions on 17 February 1987 and the Supreme Court
rendered its judgment on 26 May 1987, i.e. nearly 2 years after the
introduction of the appeal in cassation.
33. The Commission observes that, under Section 433 of the Dutch Code
of Criminal Procedure (Wetboek van Strafvordering), the documents
concerning the case should have been sent to the Supreme Court within
a maximum of 54 days from the day of the decision of the Court of
Appeal (cf. No. 12728/87, A. v. the Netherlands, Dec. 10.4.91). It is
true that the assessment of the reasonableness of the length of the
proceedings under Article 6 para. 1 (Art. 6-1) of the Convention cannot
be made dependent on time-limits stipulated in domestic law (cf. M. v.
Austria, Comm. Rep. 10.3.88, p. 15 para. 71; No. 13964/88, K. v. the
Netherlands, Dec. 17.4.91). But it must be taken into account that the
national law prescribes a time-limit which has been surpassed by almost
14 months. Even apart from this legal provision, the delay of 15½
months between the introduction of the appeal in cassation and the
transmission of the files from the Court of Appeal to the Supreme Court
- the main cause of the length of the proceedings before the Supreme
Court in the present case - can in the Commission's view not be
justified by lack of available staff as suggested by the Government.
The Commission here refers to its findings in a similar case
(Marijnissen v. the Netherlands, Comm. Report 12.3.84, D.R. 40 p. 83).
It also notes that, during the relevant period, the applicant's lawyer
regularly inquired about the progress of the case (para. 21 above),
although it is uncertain whether she expressly requested a hearing to
be held urgently.
34. In the light of the above considerations the Commission finds
that the length of the proceedings between the judgment of the Court
of Appeal and the decision of the Supreme Court was excessive and that
this is due to a delay imputable to the State.
E. Conclusion
35. The Commission concludes unanimously that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
_______________________________________________________________________
24 November 1987 Introduction of application
7 March 1988 Registration of application
Examination of admissibility
12 October 1989 Commission's decision to
invite the Government to
submit their observations on
the admissibility and merits
of the application
18 Decmeber 1989 Government's observations
1 March 1990 Applicant's observations in
reply
18 May 1990 Legal aid granted
8 January 1991 Decision to refer the
application to the Second
Chamber
8 July 1991 Commission's decision to
declare the application
admissible
Examination of the merits
15 July 1991 Parties invited to submit
further observations on the
merits
1 April 1992 Commission's deliberations
on the merits, final vote and
adoption of the Report
Full & Egal Universal Law Academy