THIRD SECTION
DECISION
Application no. 12810/13
Fatih ÇELİK
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 27 August 2013 as a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Kristina Pardalos,
Johannes Silvis,
Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 13 February 2013,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Fatih Çelik, is a Netherlands national who was born in 1985 and lives in Oss. He was represented before the Court by Mr R.J. Baumgardt, a lawyer practising in Spijkenisse.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 11 September 2008 the single-judge chamber for criminal cases (politierechter) of the Regional Court (rechtbank) of ‘s-Hertogenbosch convicted the applicant of burglary and destruction of property. As relevant to the case before the Court, it sentenced him to one hundred days’ imprisonment, corresponding to the time he had already spent in detention on remand.
4. Both the defence and the prosecution appealed to the Court of Appeal (gerechtshof) of ‘s-Hertogenbosch.
5. The Court of Appeal held an appeal hearing in the case on 12 July 2010. The applicant failed to appear, having withdrawn his appeal earlier the same day. The Court of Appeal proceeded with the case on the strength of the appeal lodged by the prosecution; however, it adjourned the hearing so that the applicant could attend.
6. The hearing was resumed on 6 September 2010. The applicant was present; he was assisted by counsel.
7. On 20 September 2010 the Court of Appeal gave an interlocutory judgment ordering the appearance of a witness.
8. On 16 December 2010 the hearing was resumed but adjourned at the request of the defence, the applicant’s counsel being ill.
9. The hearing was again resumed on 16 February 2011. The witness and the applicant and his counsel were present.
10. The Court of Appeal gave judgment in abbreviated form – i.e. without a detailed statement of the evidence relied on (Article 365a § 1 of the Code of Criminal Procedure (Wetboek van Strafvordering)) – on 2 March 2011. As relevant to the case before the Court, it sentenced the applicant to twelve months’ imprisonment.
11. On 15 March 2011 the applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad). This required the Court of Appeal to prepare a completed version of its judgment, supplementing it with a detailed statement of the evidence relied on (Article 365a § 2 of the Code of Criminal Procedure).
12. The Court of Appeal submitted the completed version of its judgment on 15 June 2012. On 18 June 2012 the Procurator General (procureur-generaal) to the Supreme Court notified the applicant accordingly, thus starting the sixty-day time-limit within which the applicant had to submit the obligatory statement of grounds of appeal (cassatieschriftuur; Article 435 § 1 of the Code of Criminal Procedure).
13. The applicant’s counsel submitted only one ground of appeal. As relevant to the case before the Court, it read as follows:
“...
An appeal on points of law was lodged on the applicant’s behalf on 15 March 2011.
The Court of Appeal has not supplemented the abbreviated judgment with the evidence relied on within the time-limit prescribed by law, so that the Court of Appeal has not sent the case file to the Supreme Court within eight months after the appeal on points of law was lodged, as a result of which there has been a violation of the reasonable time requirement.
This failure should entail a reduction of sentence.
Explanatory note
1.1. The documents submitted to the Supreme Court include the official record of the lodging of the appeal, from which is apparent that Mr Q., a lawyer practising in ‘s Hertogenbosch, lodged an appeal on points of law against the Court of Appeal’s judgment of 2 March 2011 on 15 March 2011.
The Court of Appeal has appended to its judgment the supplement including the evidence relied on by it.
The supplement was signed by the President [of the Court of Appeal] on 15 June 2012, which shows that the abbreviated judgment was not supplemented with the evidence relied on in a timely fashion, i.e. within the time-limit prescribed by law.
Although the law does not threaten nullity against this lapse, it does mean that the Court of Appeal has failed to provide the Supreme Court with the case file within the prescribed time-limit, i.e. within eight months after the lodging of the appeal on points of law, so that the criminal proceedings against the applicant are not concluded within a reasonable time (...).
1.2. On the above grounds, the Supreme Court will have to mitigate the sentence imposed on the applicant.
1.3. For the sake of completeness, it should be noted that the Supreme Court’s pilot judgments (overzichtsarresten) of 11 September 2012 (LJN [Landelijk Jurisprudentie Nummer, National Case-Law Database Number] BX0416; BX013; BX0129; BX7004) do not affect the above reasoning. In this connection, it is noted in the first place that the Netherlands courts are bound to conform to the Convention and must therefore ensure that no violation is committed of a right guaranteed by the Convention, such as the right to trial within a reasonable time. Should the Supreme Court take the view that section 80a of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie) admits of an infringement thereof, the Supreme Court would overlook the fact that the Convention overrides (Netherlands) domestic law (...). Moreover, it is overlooked in the above-mentioned [pilot judgments] that the applicant most certainly has valid complaints about the way the court below (feitenrechter) [i.e. the Court of Appeal] has handled the case, given that the court below has not forwarded the case file to the Supreme Court within the time-limit prescribed by law, which in turn entails a violation of Article 6 of the Convention. In addition, in cases like the present, in which counsel has presented himself as such to the Supreme Court shortly after the judgment of the Court of Appeal, and in which the case file has been sent to counsel only after a considerable time (which in turn is caused by the Court of Appeal’s failure to meet the legally prescribed time-limit), it cannot be said that the accused ‘has to a certain extent himself chosen’ to live under the threat of (further) prosecution for longer than is reasonable.”
14. The Procurator General submitted his advisory opinion (conclusie; Article 439 § 1 of the Code of Criminal Procedure) on 6 November 2012. It read as follows:
“1. The appeal on points of law is directed against a judgment of the Court of Appeal of ‘s-Hertogenbosch of 2 March 2011. A statement containing one ground of appeal has been submitted within the time-limit applicable.
2. The ground of appeal purports to complain only that the reasonable time within the meaning of Article 6 § 1 of the Convention has been violated as a result of the lodging of the appeal on points of law. I refer to the Supreme Court’s judgment of 11 September 2012, LJN BX 7004, paragraph 2.2.4:
‘In such a case, in which the person concerned appears not to have any complaints (on points of law) about the judgment appealed against, nor about the way the court below (feitenrechter) has handled the case, and the accused has to a certain extent himself chosen to live under the threat of (further) prosecution for longer than is reasonable, reliance on the reasonable time requirement laid down in the Convention provision aforementioned is not a complaint that expresses a sufficient interest in the appeal on points of law. After all, it cannot be said that there has been an omission that has had any bearing on the impugned judgment.’
3. The position is that the [applicant’s appeal on points of law] should be declared inadmissible as the [applicant] plainly does not have a sufficient interest.”
15. The applicant’s counsel lodged a written response to this advisory opinion (or “Borgers letter”[1]; Article 439 § 4 of the Code of Criminal Procedure) on 14 November 2012. This document referred to case-law of the Court on the interpretation of the reasonable time requirement set out in Article 6 § 1 of the Convention as applicable under its criminal head. In addition, it stated the following:
“It is worth noting by the way (ten overvloede) that it must be prevented that the already overburdened European Court of Human Rights should be saddled entirely needlessly and unnecessarily with all manner of complaints that could and should have been dealt with already in the Netherlands. It must be prevented that the European Court of Human Rights will have to consider the complaint in question needlessly and that – subsequently – the Supreme Court – after the complaint has been held well-founded – will have to address the substance of the matter after all.”
16. On 27 November 2012 the Supreme Court declared the appeal inadmissible on summary reasoning, applying section 80a of the Judiciary (Organisation) Act.
B. Relevant domestic law
1. The Judiciary (Organisation) Act
(a) Section 80a of the Judiciary (Organisation) Act
17. Section 80a of the Judiciary (Organisation) Act entered into force on 1 July 2012. It provides as follows (references to other domestic legislation omitted):
“1. The Supreme Court may, after having taken cognisance of the advisory opinion of the Procurator General (gehoord de procureur-generaal), declare an appeal on points of law inadmissible when it is not justified to consider the complaints raised on appeal on points of law (de aangevoerde klachten geen behandeling in cassatie rechtvaardigen), because the appellant party obviously has insufficient interest in the appeal on points of law (klaarblijkelijk onvoldoende belang heeft bij het cassatieberoep) or because the complaints obviously cannot succeed (klaarblijkelijk niet tot cassatie kunnen leiden).
2. The Supreme Court shall not take a decision as referred to in the first paragraph without first having taken cognisance of:
a. [in civil cases:] the summons or request [introducing the appeal on points of law] ... and the memorandum in reply (conclusie van antwoord) or statement of defence (verweerschrift), if submitted;
b. [in criminal cases:] the written statement of grounds of appeal on points of law (de schriftuur, houdende de middelen van cassatie) ...; or, as the case may be,
c. [in tax cases:] the written statement introducing the appeal on points of law (het beroepschrift waarbij beroep in cassatie wordt ingesteld)... and the statement of defence, if submitted.
3. The appeal on points of law shall be considered and decided by three members of a multi-judge Chamber (meervoudige kamer), one of whom shall act as president.
4. If the Supreme Court applies the first paragraph, it may, in stating the grounds for its decision, limit itself to that finding.”
(b) Relevant case-law
18. In a judgment of 11 September 2012 (LJN BX0146, Netherlands Law Reports (Nederlandse Jurisprudentie, “NJ”) 2013/241; LJN BX0129, NJ 2013/242; LJN BX7004, NJ 2013/243; LJN BX0132, NJ 2013/244; and LJN BY9128, NJ 2013/245) the Supreme Court clarified its understanding of this provision as applicable in criminal cases. The following is taken from LJN BX7004:
“2.1.2. The explanatory memorandum (memorie van toelichting) to the Bill that led to this Act (Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 2010/11, 32 576, no. 3), includes the following:
‘1. Introduction
Aim pursued by the Bill
This Bill aims to strengthen jurisprudence in appeal on points of law (versterking van de cassatierechtspraak) by setting different and novel standards for lawyers who act as procedural representatives before the Supreme Court and by introducing for the Supreme Court the possibility to declare inadmissible an appeal on points of law at the beginning of the procedure. The Bill is intended to allow the Supreme Court as a court of cassation to concentrate on its core tasks. The adequacy of its functioning is under pressure as a result of appeals on points of law lodged in cases that do not lend themselves for review on points of law, and because some cases in which a pronouncement of the Supreme Court is desirable do not reach the Supreme Court in time or at all. In setting quality standards for lawyers the aim is to ensure that in lodging appeals on points of law statements of grounds of appeal are submitted that are of decent quality.
...
Accelerated inadmissibility
Another measure [in addition to setting new quality standards for legal representatives] is the introduction of a modality for dealing with cases that goes further than section 81 of the Judiciary (Organisation) Act. Section 81 of the Judiciary (Organisation) Act offers the Supreme Court the possibility of limiting the reasoning of the rejection of a ground of appeal on points of law to the finding that the complaint therein raised “does not constitute grounds for overturning the impugned judgment and does not give rise to the need for a determination of legal issues in the interests of legal unity and legal development”.
Section 81 of the Judiciary (Organisation) Act has in recent years played an important part in keeping the workload of the Supreme Court manageable. The Supreme Court now applies this provision in approximately half of its cases. The limits to its application are however within reach. Moreover, section 81 is applied only at the end of cassation proceedings, and moreover (invariably, in civil and criminal cases) after an advisory opinion of the procurator general, whereas for both the parties to the proceedings and the Supreme Court itself it would provide great relief if cases without any prospect of success could be disposed of simply at an earlier stage of the proceedings.
...
Pursuant to Article 118 § 2 of the Constitution (Grondwet) the Supreme Court is charged, in the cases and within the limits prescribed by the law, with quashing judicial decisions on the ground that they violate the law (de cassatie van uitspraken wegens schending van het recht). The Bill explicitly does not aim at changing the Supreme Court’s task. This is not in the nature of a leave-to-appeal system in which courts have to give permission before a legal remedy can be used. The freedom of parties to lodge appeals on points of law remains unimpaired. What is new is the latitude given the Supreme Court to declare an appeal inadmissible on the (substantive) finding that the grounds of appeal submitted do not justify detailed review on points of law (geen nadere beoordeling in cassatie rechtvaardigen). As the case may be, the appeal may be inadmissible, for example because the impugned decision rests on two grounds each of which carries the decision on its own but only one of which is challenged, or because of a lack of interest, for example because an appeal on points of law that may be well-founded in itself cannot, after quashing, lead to a different outcome than that reached in the impugned decision.’
...
2.2.2. Section 80a of the Judiciary (Organisation) Act does bring changes when it concerns cases in which hitherto an omission made it necessary to quash the impugned decision, even though the person bringing the appeal on points of law essentially had no interest deserving to be upheld in law (niet voldoende in rechte te respecteren belang) in such quashing and a possible rehearing after remittal or referral of the case. In this context, it should be observed that the mere possibility – i.e., regardless of the reason for which the appeal might be held well-founded – that in such case a different, and possibly more advantageous, judgment might ensue (for example, a reduction of sentence in connection with the length of the proceedings before and after remittal or referral of the case, or in connection with changed personal circumstances) cannot be considered an interest deserving to be upheld in an appeal on points of law.
...
2.2.4. In this connection it is worth paying attention to the example mentioned on page 19 of the explanatory memorandum, that an appeal on points of law can henceforth be disposed of under section 80a of the Judiciary (Organisation) Act if it purports to complain only that as a result of the introduction of the appeal on points of law the reasonable time requirement within the meaning of Article 6 § 1 of the Convention has been violated. In such a case, in which the person concerned appears not to have any complaints (on points of law) about the judgment appealed against, nor about the way the court below has handled the case, and the accused has to a certain extent himself chosen to live under the threat of (further) prosecution for longer than is reasonable, reliance on the reasonable time requirement laid down in the Convention provision aforementioned is not a complaint that expresses a sufficient interest in the appeal on points of law. After all, it cannot be said that there has been an omission that has had any bearing on the impugned judgment. It does not make any difference if, in addition to the point of appeal concerning the reasonable time requirement, no other grounds of appeal are submitted than such as do not stand in the way of application of section 80a of the Judiciary (Organisation) Act.”
19. The judgment goes on to identify other specific types of cases in which section 80a of the Judiciary (Organisation) Act may be applied. It continues:
“Consequences for the content of the statement of grounds of appeal on points of law and the ‘Borgers letter’
2.6.1. Pursuant to the second paragraph of section 80a of the Judiciary (Organisation) Act the Supreme Court shall not take a decision as referred to in the first paragraph without first having taken cognisance of the written statement of grounds of appeal on points of law ... If the ‘selection on the doorstep’ (selectie aan de poort) which the legislature has introduced by way of section 80a of the Judiciary (Organisation) Act is to meet its intended aims, then the advocate who acts as procedural representative, or the public prosecution service as the case may be, can reasonably be expected – in the words of the explanatory memorandum – to submit ‘statements of grounds of appeal ... that are of decent quality’.
2.6.2. The first paragraph of section 80a of the Judiciary (Organisation) Act provides that the appeal on points of law can be declared inadmissible on the ground that the appellant party obviously has insufficient interest in the appeal on points of law. That being so, it is reasonable to expect from counsel and the public prosecution service, in cases in which [the] interest is not obvious, that the statement of grounds of appeal elaborates on the interest in the appeal on points of law lodged and therefore also on the interest deserving to be upheld and requiring the quashing of the impugned judgment and the rehearing of the case by the court below. That too follows from the need, stressed in the explanatory memorandum, for an improvement of the quality of statements of grounds of appeal on points of law.
2.6.3. Section 80a of the Judiciary (Organisation) Act provides that in the cases therein referred to the Supreme Court may declare the appeal on points of law inadmissible after having taken cognisance of the advisory opinion of the Procurator General. It must be presumed that the Procurator General will express his point of view as to the applicability of section 80a of the Judiciary (Organisation) Act on a hearing day set by the judge in charge of the Supreme Court’s list of cases (rolraadsheer) and also that if the Procurator General is of the opinion that the case lends itself for the application of section 80a of the Judiciary (Organisation) Act, he will express this point of view in writing. In such event counsel for the person by whom or on whose behalf the appeal has been lodged can respond in writing to that point of view within two weeks thereafter.”
2. The Code of Criminal Procedure
(a) Relevant provisions
20. Article 365a of the Code of Criminal Procedure, taken together with Article 415, provides that as long as no appeal on points of law has been introduced the Court of Appeal need only provide a written judgment in abbreviated form (Article 365a § 1). Only if an appeal on points of law is lodged need the Court of Appeal supplement the judgment with the actual evidence relied on (Article 365a § 2); this shall be done within four months, or within three months if the defendant is in detention (Article 365a § 3).
21. Article 432 provides that, except in certain situations not relevant to the present case before the Court, an appeal on points of law shall be introduced within fourteen days from the delivery date of the final judgment.
22. Once the registry of the Supreme Court has received the case file, the Procurator General shall notify the defence accordingly (Article 435 §1). If the appeal on points of law has been lodged by the defence, the accused’s counsel must submit a written statement of grounds of appeal within two months (i.e. sixty days) thereafter, failing which the appeal will be declared inadmissible (Article 437 § 2).
23. The Procurator General shall submit an advisory opinion (Article 439 § 1) in all cases unless no statement of grounds of appeal has been submitted on behalf of the accused (Article 439 § 2). A copy of the advisory opinion shall be sent to the defence (Article 439 § 3). Within two weeks thereafter counsel for the accused may submit written comments – the “Borgers letter” aforementioned – in reply (Article 439 § 4).
(b) Relevant case-law
24. In a judgment of 3 October 2000, LJN AA7309, NJ 2000, no. 721, the Supreme Court ruled that the time required to forward the complete case file to it should be taken into account in assessing compliance with the “reasonable time” requirement within the meaning of Article 6 § 1 of the Convention. The time allowed for forwarding the complete case file was “for the time being” (vooralsnog) set at eight months from the introduction of the appeal on points of law. If the “reasonable time” was exceeded, this should in principle lead to reduction of sentence according to guidelines set out in the Supreme Court’s judgment.
25. In a judgment of 17 June 2008, LJN BD 2578, NJ 2008, no. 358, the Supreme Court re-stated the eight-month time-limit for forwarding the complete case file to it, and added that that time-limit would be reduced to six months if the accused was in detention on remand (voorlopige hechtenis) or if juvenile criminal law was applied. It also modified its guidelines.
COMPLAINTS
26. The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings and under Article 13 of the Convention about the lack of an appropriate effective remedy.
THE LAW
27. The applicant alleged a violation of Article 6 § 1 of the Convention in that the transmission of the case file by the Court of Appeal to the Supreme Court had met with delays recognised in domestic law as unreasonable. He alleged a violation of Article 13 of the Convention in that the Supreme Court had denied him redress.
28. The Court must consider whether the complaints are admissible under Article 35 § 3 (b) of the Convention, which provides as follows:
“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:
...
(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”
29. As the Court stated in Korolev v. Russia (dec.), no. 25551/05, Reports of Judgments and Decisions 2010:
“... [the purpose of the new admissibility criterion set out in Article 35 § 3 (b)] is, in the long run, to enable more rapid disposal of unmeritorious cases and thus to allow it to concentrate on the Court’s central mission of providing legal protection of human rights at the European level (see Explanatory Report to Protocol No. 14, CETS [Council of Europe Treaty Series] No. 194 (hereinafter referred to as ‘Explanatory Report’), §§ 39 and 77-79). The High Contracting Parties clearly wished that the Court devote more time to cases which warrant consideration on the merits, whether seen from the perspective of the legal interest of the individual applicant or considered from the broader perspective of the law of the Convention and the European public order to which it contributes (see Explanatory Report, § 77). More recently, the High Contracting Parties invited the Court to give full effect to the new admissibility criterion and to consider other possibilities of applying the principle de minimis non curat praetor (see Action Plan adopted by the High Level Conference on the Future of the European Court of Human Rights, Interlaken, 19 February 2010, § 9(c)).”
30. The Court has had occasion to note that Article 6 does not compel Contracting Parties to provide appeals in civil or criminal cases (see Delcourt v. Belgium, 17 January 1970, § 25, Series A no. 11; more recently, Lalmahomed v. the Netherlands, no. 26036/08, § 34, 22 February 2011). A right to seek review of conviction or sentence is enshrined in Article 2 § 1 of Protocol No. 7 in terms similar to those of Article 14 § 5 of the International Covenant on Civil and Political Rights. However, a Contracting Party which provides for the possibility of an appeal is required to ensure that persons amenable to the law shall enjoy before the appellate court the fundamental guarantees contained in Article 6 (see the above-cited Delcourt judgment, loc. cit., and De Cubber v. Belgium, 26 October 1984, § 32, Series A no. 86; as more recent examples, Khalfaoui v. France, no. 34791/97, § 37, ECHR 1999‑IX; Kudła v. Poland [GC], no. 30210/96, § 122, ECHR 2000‑XI; and Lalmahomed, cited above, § 36). The right to trial within a reasonable time is one such fundamental guarantee (see, among many other authorities, Wemhoff v. Germany, 27 June 1968, § 18, Series A no. 7; Eckle v. Germany, 15 July 1982, § 76, Series A no. 51; Motta v. Italy, 19 February 1991, § 15, Series A no. 195‑A; see also, as examples concerning the same Contracting Party as the present case, Abdoella v. the Netherlands, 25 November 1992, § 23, Series A no. 248‑A, and Bunkate v. the Netherlands, 26 May 1993, § 22, Series A no. 248‑B; more recently, Marpa Zeeland B.V. and Metal Welding B.V. v. the Netherlands, no. 46300/99, § 62, ECHR 2004‑X (extracts); and lately, Hamer v. Belgium, no. 21861/03, § 61, ECHR 2007‑V (extracts) and Idalov v. Russia [GC], no. 5826/03, § 187, 22 May 2012).
31. At the same time it must be observed that – as is illustrated by the very profusion of applications to this Court raising issues concerning length of proceedings – domestic courts are confronted with a surfeit of case-work. It has to be recognised that Contracting Parties have the right and the duty under the Convention to take appropriate measures in order to prevent unmeritorious and frivolous appeals from clogging up their criminal justice systems (see, in particular, Lalmahomed, cited above, § 37).
32. It is against the background thus drawn that the Court will consider the case presented on behalf of the present applicant.
33. As is now its practice, the Court will examine of its own motion whether: (1) the applicant has suffered a significant disadvantage; (2) whether respect for human rights as defined in the Convention and the Protocols attached thereto requires an examination of the application on the merits; and (3) whether the case was duly considered by a domestic tribunal (see, in particular, Korolev v. Russia (dec.), no. 25551/05, ECHR 2010; Ladygin v. Russia (dec.), no. 35365/05, 30 August 2011; and Zwinkels v. the Netherlands (dec.), no. 16593/10, § 24, 9 October 1912).
A. Whether the applicant has suffered a significant disadvantage
34. The Court reiterates that, in ascertaining whether the violation of a right attains the “minimum level of severity”, the following factors, inter alia, should be taken into account: the nature of the right allegedly violated, the seriousness of the impact of the alleged violation on the exercise of a right and/or the possible effects of the alleged violation on the applicant’s personal situation (see Giusti v. Italy, no. 13175/03, § 34, 18 October 2011).
35. The applicant’s complaints concern solely the length of the proceedings before the Supreme Court as a consequence of the time taken by the Court of Appeal to complete the case file. While it is true that complaints of a comparable nature have caused the Court concern in the past (see, mutatis mutandis, Abdoella and Bunkate, both cited above, loc. cit.), the Court considers it suitable in the present case to examine the particular circumstances in which the delay complained of could arise.
36. The applicant lodged an appeal on points of law without submitting any ground of appeal. After the abbreviated judgment of the Court of Appeal had been supplemented and the case file had been forwarded to the Supreme Court, the applicant’s representative submitted one complaint on the applicant’s behalf – to wit, about the delay resulting from supplementing the Court of Appeal’s abbreviated judgment and forwarding the file to the Supreme Court.
37. No complaint was made about the judgment of the Court of Appeal or about any aspect of the prior criminal proceedings. That being so, neither the nature of the rights allegedly violated, nor the seriousness of the impact of the alleged violation on the exercise of a right, nor for that matter any possible effects of the alleged violation on the applicant’s personal situation or any other factor can lead the Court to find that the applicant has suffered a “significant disadvantage” as that expression is to be understood within the context of Article 35 § 3 (b).
B. Whether respect for human rights as defined in the Convention and the Protocols attached thereto requires an examination of the application on the merits
38. As to whether respect for the human rights safeguarded by the Convention and its Protocols requires the examination of the merits of the complaint, the Court points to the plethora of judgments and decisions which it has given on the length of criminal proceedings. It will confine itself to referring to the judgments mentioned in paragraph 31 above for examples. An examination on the merits of the present complaint would add nothing of significance to the existing body of case-law. Consequently respect for human rights, as defined in the Convention and the Protocols thereto, does not require an examination of this application on its merits.
C. Whether the case was duly considered by a domestic tribunal
39. The Procurator General addressed the applicant’s one ground of appeal on points of law. The applicant himself had the opportunity – of which, through his counsel, he availed himself – to respond. That being the case the Court finds that the Supreme Court gave the case due consideration, even though it dismissed the applicant’s appeal on summary reasoning.
40. As a more general point, the Court would add that, when examining whether the “significant disadvantage” admissibility criterion has been satisfied in cases where the applicant alleges a violation of the Convention by the last-instance judicial authority of the domestic legal system, it may dispense with the requirement laid down in Article 35 § 3 (b) of the Convention whereby no case may be rejected on that ground unless it has been “duly considered by a domestic tribunal”. To construe the contrary would prevent the Court from rejecting any claim, however insignificant, relating to alleged violations imputable to a final national instance. Such an approach would be neither appropriate nor consistent with the object and purpose of Article 35 § 3 (b) of the Convention (see Galović v. Croatia (dec.), no. 54388/09, § 77, 5 March 2013).
D. Conclusion
41. It follows that the applicant’s complaints must be declared inadmissible in accordance with Article 35 §§ 3 (b) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago QuesadaJosep Casadevall
RegistrarPresident
[1] In the procedure before the Netherlands Supreme Court, “Borgers letter” is the colloquial name given to a written response to the advisory opinion of the Procurator General which the defendant in a criminal case is allowed to submit. It takes its name from this Court’s Borgers v. Belgium judgment of 30 October 1991, Series A no. 214 B, in which the absence of such a possibility led to the finding of a violation of Article 6 § 1 of the Convention.
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