AS TO THE ADMISSIBILITY OF
Application No. 12211/86 Application No. 12212/86
by Theodorus Jozephus de BONDT by Arie BIJL
against the Netherlands against the Netherlands
Session of the European Commission of Human Rights held in
camera on 6 March 1991.
Present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
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 11 April 1986
by Theodorus Josephus de BONDT against the Netherlands and registered
on 9 June 1986 under file No. 12211/86 and the application introduced
on 11 April 1986 by Arie BIJL against the Netherlands and registered
on 9 June 1986 under file No. 12212/86;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 17 March 1989 and the observations in reply submitted by
the applicants on 24 May 1989;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a Dutch citizen, born in 1943 and
presently residing in Meppel, the Netherlands. The second applicant
is a Dutch citizen, born in 1954 and presently residing in
's-Gravendeel, the Netherlands. The applicants are represented in the
proceedings before the Commission by Mr. G. Spong, a lawyer
practising in The Hague.
The facts, as submitted by the applicants, may be summarised
as follows:
On 27 March 1980 the applicants were summoned to appear before
the Regional Court (Arrondissementsrechtbank) of Rotterdam. The first
applicant, a captain of a ship, was accused of having ordered that a
stowaway of Ghanaian nationality be thrown overboard on the Bonny
river in Nigeria on 24 October 1979, after which the Ghanaian
drowned. The second applicant, a member of the crew of the ship, was
accused of having thrown the Ghanaian overboard, with the help of
other crew members.
On 10 April 1980 the Regional Court of Rotterdam convicted
the applicants and sentenced the first applicant to 42 months'
imprisonment and the second applicant to two years' imprisonment.
Both the applicants and the Public Prosecutor appealed to the
Court of Appeal (Gerechtshof) of The Hague. On 4 November 1980 the
Court confirmed both convictions but reduced the sentence of the
second applicant to one year's imprisonment.
The applicants introduced a plea of nullity with the Supreme
Court (Hoge Raad). On 2 June 1981 the Supreme Court quashed the
judgments on technical points and referred the cases to the Court of
Appeal of Amsterdam.
At this stage of the proceedings a man turned up, alleging
that he was the stowaway who had been thrown overboard.
On 2 December 1981 the Court of Appeal of Amsterdam confirmed
the judgments of the Court of Appeal of The Hague. The applicants
again introduced a plea of nullity with the Supreme Court.
On 5 October 1982 the Supreme Court quashed the judgments of
the Court of Appeal of Amsterdam on technical points and referred the
cases to the Court of Appeal of Arnhem.
The hearing of the first applicant by the Court of Appeal of
Arnhem started on 31 March 1983. It is not clear from the file when
the hearing of the second applicant started but this must have taken
place around the same time. On 14 April 1983 the Court adjourned the
first applicant's case until 9 June 1983 because on that date the
second applicant's case would be dealt with. However, on 9 June 1983
the Court adjourned both cases for an indefinite time because of
illness of the judge, who had presided during the hearing on 31 March
1983.
On 8 August 1983 the hearings were resumed and on 22 August
1983 the Court of Appeal of Arnhem sentenced the first applicant to
two years' imprisonment and the second applicant to one year's
imprisonment. The Court held, inter alia, that the fact that the
criminal offence had been committed almost four years ago, should
influence the sentence.
On 23 August 1983 the applicants introduced a plea of nullity
with the Supreme Court. On 11 March 1985 the documents concerning the
cases were received by the Registry of the Supreme Court. By letter
of 14 June 1985 the Attorney-General at the Court of Appeal of Arnhem
explained to the Attorney-General at the Supreme Court that after the
death on 27 February 1985 of the President of the Chamber that had
dealt with the cases it was discovered that the documents were still
in the President's possession.
On 16 September 1985 the Supreme Court decided that the
applicants' lawyer should be enabled to take notice of the above
mentioned letter of the Attorney-General at the Court of Appeal.
In their additional plea the applicants complained, inter
alia, that the length of time that had elapsed between the delivery by
the Court of Appeal of Arnhem of the judgment of 22 August 1983 and
the sending of the documents to the Supreme Court was unreasonable.
On 10 December 1985 the Supreme Court rejected the appeals.
It held, inter alia, that the total length of the proceedings (almost
six years) did not exceed "a reasonable time" as meant in Article 6
para. 1 of the Convention, taking into account the complexity of the
case, the attitudes of the applicants, in particular their repeated
appeals, and the illness of the President of the Chamber of the Court
of Appeal that dealt with the cases. The Supreme Court also held
that, since the case had been dealt with quickly at previous stages of
the proceedings, the delay which had arisen between 23 August 1983 and
11 March 1985 could not be considered to have exceeded a reasonable
time.
On 17 April 1986, the first applicant addressed a petition for
pardon to the Queen of the Netherlands. The Court of Appeal of Arnhem
was asked to make a recommendation in connection with the petition.
The Court recommended to reduce the two years' sentence imposed on the
applicant because of the length of time which had elapsed since the
offence was committed. On 30 September 1986, the Queen reduced the
first applicant's sentence to one year's imprisonment. On 9 October
1986, the Queen granted a similar pardon to the second applicant,
reducing his sentence to imprisonment of six months.
COMPLAINTS
The applicants complain of the time that elapsed between the
decisions of the Court of Appeal of Arnhem on 22 August 1983 and the
sending of the documents of the cases to the Supreme Court. This time
amounts to almost 19 months. The applicants complain that their
hearings did not take place within a reasonable time. They invoke
Article 6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The applications were introduced on 11 April 1986 and
registered on 9 June 1986.
The Commission decided on 12 December 1988 to bring the
applications to the notice of the respondent Government and to invite
them to submit written observations on their admissibility and merits.
The Government's observations were received on 17 March 1989
and the applicants' observations in reply on 24 May 1989.
THE LAW
The applicants complain of the time that elapsed between the
decisions of the Court of Appeal of Arnhem on 22 August 1983 and the
sending of the documents of the cases to the Supreme Court. This time
amounts to almost 19 months. The applicants complain that their
hearings did not take place within a reasonable time. They invoke
Article 6 para. 1 (Art. 6-1) of the Convention.
This provision, as far as relevant, provides:
"1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal established by law..."
The Government first recall that in its judgment of 10
December 1985, the Supreme Court held that the total length of the
proceedings did not exceed a reasonable time, taking into account the
complexity of the case, the attitudes of the applicants - in
particular their repeated appeals - and the illness of the President
of the Chamber of the Court of Appeal that dealt with the case. The
same Court also held that, since the case had been dealt with quickly
at previous stages of the proceedings, the delay which had arisen
between 23 August 1983 and 11 March 1985 could not be considered to be
excessive. The Government consider that the reasons put forward by the
Supreme Court should be regarded as adequate and sufficient.
The Government further submit that the first applicant was
pardonned by the Queen on 30 September 1986 and had his sentence
reduced to one year's imprisonment because of the length of time which
had elapsed since the offence was committed. Similarly the second
applicant had his sentence reduced to six months' imprisonment. The
Government therefore consider that the applicants cannot claim to be
victims of a violation of Article 6 para. 1 (Art. 6-1) of the
Convention, within the meaning of its Article 25 (Art. 25). They
refer to the Van Droogenbroeck judgment (Eur. Court H.R., Van
Droogenbroeck judgment of 24 June 1982, Series A no. 50), the Eckle
judgment (Eur. Court H.R., Eckle judgment of 15 July 1982, Series A
no. 51) and the Commission's case-law (cf. Pannetier v. Switzerland,
Comm. Report 12.7.85, D.R. 46 p. 5).
The applicants state that the fact that the proceedings had
been conducted quickly in the initial stages cannot justify the 19
months' delay which occurred between the judgment of the Court of
Appeal of Arnhem and the sending of the documents of the cases to the
Supreme Court. They recall that the Dutch authorities were completely
inactive during this long period and that they took no step to
accelerate the proceedings on this point.
The applicants further allege that they are still victims of
the violation of Article 6 para. 1 (Art. 6-1) of the Convention, even
though part of their sentences was later remitted by way of a pardon.
They maintain that according to the nature of the offences charged,
the proper redress for the excessive length of the proceedings would
have been to declare the public prosecutor's action inadmissible
(niet- ontvankelijkheid van het Openbaar Ministerie).
The Commission is of the opinion that the applicants' right to
a hearing within a reasonable time came into being on 27 March 1980
when they were summoned to appear before the Regional Court of
Rotterdam and therefore substantially affected as a result of the
suspicions against them (cf. Eur. Court H.R., Corigliano judgment of
10 December 1982, Series A no. 57, p. 13 para. 34).
The Commission recalls the period to be taken into
consideration lasts until acquittal or until the sentence is
definitely fixed (cf. Eur. Court H.R., Eckle judgment loc. cit., p. 34
paras. 76, 77). The period at issue ended on 10 December 1985 when
the Supreme Court dismissed the applicants' last appeal.
The period to be examined under Article 6 para. 1 (Art. 6-1)
of the Convention thus lasted 5 years, 8 months and 13 days.
The question arises whether or not the applicants can still
claim to be victims of a violation within the meaning of Article 25
(Art. 25) of their Convention right after the Dutch authorities have
compensated, by a reduction of their sentences, the length of time
which had elapsed between the day when the offence was committed and
the day when the sentence was fixed.
The Commission and the Court have held in the past that an
applicant can no longer claim to be a victim of the failure to observe
the "reasonable time" requirement in Article 6 para. 1 (Art. 6-1) of
the Convention if the national authorities have acknowledged either
expressly or in substance the breach of that provision and if redress
has been given (see Eur. Court H.R., Eckle judgment, loc. cit., pp.
30-31 para. 66 ; No. 10232/83, Dec. 16.12.83, D.R. 35 p. 213).
The Commission observes that the decisions granting the pardon
took into account the time which had elapsed since the offences were
committed when reducing the sentences respectively to one year's and
six months' imprisonment, while the Court of Appeal of Arnhem had
already taken into account, in its judgment of 23 August 1983, the
fact that the criminal offences had been committed almost four years
before. The Commission observes that though it has not been clearly
said in the decisions of 30 September 1986 and 9 October 1986 that the
reduction of the sentence was based on the length of the procedure, it
can be said from the facts that this length was the main - if not the
only - reason of the measure of pardon. The Commission also notes
that the final sentences - respectively of one year's and six months'
imprisonment - appear to be very lenient when one considers the nature
of the offences charged, which could under Dutch law lead to a
sentence of 20 years imprisonment. The Commission is therefore of the
opinion that the Dutch authorities have, in substance, acknowledged a
breach of Article 6 para. 1 (Art. 6-1) of the Convention. The
Commission further considers that in the circumstances of the present
cases the mitigation of the sentences accorded on account of the
length of the proceedings is measurable, and cannot, like in the Eckle
case, simply be considered as an inverifiable declaration of good
intent.
It follows that the applicants cannot claim to be victims of a
violation of their right under Article 6 para. 1 (Art. 6-1) of the
Convention to a hearing within a reasonable time and their
applications are therefore 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
DECIDES TO JOIN THE APPLICATIONS 12211/86 & 12212/86;
DECLARES THE APPLICATIONS INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy