AS TO THE ADMISSIBILITY OF
Application No. 15643/89
by J.C.
against the Netherlands
The European Commission of Human Rights sitting in private on 19
May 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 August 1989 by
J.C. against the Netherlands and registered on 18 October 1989 under
file No. 15643/89;
Having regard to the Commission's decisions of 7 November 1990
and 17 October 1991 to request information from the applicant and the
applicant's replies of 18 December 1990, 7 November 1991 and 28 January
1992;
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, born in 1955, is a Dutch citizen residing at
Zevenaar, the Netherlands. He is unemployed. Before the Commission
he is represented by Mr. G. Spong, a lawyer practising in The Hague.
The facts as submitted by the applicant may be summarised as
follows.
On 3 April 1986, the applicant was convicted of fraud and
sentenced to eight months' imprisonment, of which four months
conditional, by the Arnhem Regional Court (Arrondissementsrechtbank).
He appealed. In an interlocutory judgment of 2 March 1987, the Arnhem
Court of Appeal (Gerechtshof) ordered the Arnhem Probation and
After-Care Organisation (Stichting Reclassering) to draw up a report
concerning the possibilities for the applicant's social resettlement.
On 25 May 1987, in a further interlocutory judgment, the Court
of Appeal decided that the applicant should carry out service
activities (dienstverlenende werkzaamheden) as an alternative penalty
and that the Probation and After-Care Organisation should report on
their progress. A report of 11/4 pages, dated 18 January 1988, was
submitted to the Court sometime between 18 January 1988 and 21 March
1988. It mentioned the fact that the applicant had discontinued his
service activities after two days alleging that there was insufficient
work for him to do. The report further stated that the probation
officer (reclasseringsambtenaar) had extensively discussed this problem
with the applicant. The report concludes that, in view of the
applicant's negative attitude and the probation officer's efforts to
help him, it would not be advisable to grant the applicant a second
opportunity to perform service activities.
On 21 March 1988 at the hearing before the Court of Appeal, the
applicant declared that he "just received" the report and that he
disagreed with parts of it. Counsel for the applicant requested the
Court to adjourn the hearing in order to have the report clarified by
the probation officer concerned. The Court of Appeal rejected this
request and confirmed the Regional Court's judgment by decision of 31
March 1988.
On 2 May 1989 the Supreme Court (Hoge Raad) dismissed the
applicant's plea of nullity on the ground that the Court of Appeal had
not deprived the applicant of the possibility of preparing his defence
by refusing to adjourn the hearing.
COMPLAINTS
The applicant complains under Article 6 para. 3 (b) of the
Convention that he did not have adequate time for the preparation of
his defence before the Court of Appeal.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 August 1989 and registered
on 18 October 1989.
On 7 November 1990 the Commission decided to ask additional
information from the applicant. The applicant's reply was received by
letter dated 18 December 1990.
On 17 October 1991 the Commission decided to ask further
information from the applicant. The applicant submitted the information
on 7 November 1991 and 28 January 1992.
THE LAW
The applicant complains that the Court of Appeal's refusal to
adjourn the hearing in order to have the report on the applicant
clarified violated his rights of defence in that he had insufficient
time to prepare his defence. He invokes Article 6 para. 3 (b)
(Art. 6-3-b) which reads:
"3. Everyone charged with a criminal offence has the
following minimum rights: ...
(b) to have adequate time and facilities for the
preparation of his defence ..."
The Commission recalls that the determination of a criminal
charge, within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention, includes not only the determination of the guilt or
innocence of the accused, but also in principle the determination of
his sentence; and the expression "everyone charged with a criminal
offence" in Article 6 para. 3 (Art. 6-3) includes persons who, although
already convicted, have not been sentenced (No. 4623/70, Dec. 9.2.72,
Collection 39, p. 66, 74).
In this respect the Commission notes that the report drawn up by
the Probation and After-Care Organisation was relevant to the
determination of the penalty to be imposed on the applicant and that
the Court of Appeal took the report into account for that purpose.
The Commission notes, however, that notwithstanding the
Commission's explicit requests for further clarification of the
question when he or his representative received the report or which
were the points of the report with which he disagreed, the applicant
failed to substantiate his complaint.
It follows that the application must be rejected for being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy