FOURTH SECTION
DECISION
Application no. 23106/19
Dirk DE JONG
against the Netherlands
The European Court of Human Rights (Fourth Section), sitting on 22 April 2025 as a Committee composed of:
Faris Vehabović, President,
Jolien Schukking,
Lorraine Schembri Orland, judges,
and Simeon Petrovski, Deputy Section Registrar,
Having regard to:
the application (no. 23106/19) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 24 April 2019 by a Dutch national, Mr Dirk De Jong (“the applicant”), who was born in 1950, lives in The Hague and was represented by Mr Vermeij, a lawyer practising in Oegstgeest;
the decision to give notice of the complaint under Article 7 § 1 to the Government of the Kingdom of the Netherlands (“the Government”), represented by their Agent, Ms B. Koopman, of the Ministry of Foreign Affairs;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns the change in the Supreme Court’s practice concerning the use of its competence to examine ex officio whether the statute of limitations has expired. The applicant relies on Article 7 § 1 of the Convention.
2. In June 2011 the applicant was reported to the police for embezzlement. He was first questioned by the police on 30 August 2012, but was not summoned to appear for a hearing until 2 June 2015.
3. On 2 July 2015 the Regional Court of The Hague convicted the applicant of participation in embezzlement between 2 and 4 February 2008.
4. By judgment of 18 October 2016, the Court of Appeal found the applicant guilty of participation in embezzlement between 2 February 2008 and 30 August 2012 and sentenced him to four months’ imprisonment, two months of which were suspended pending a probation period of two years and a 100 hours of community service.
5. At no point during the proceeding did the applicant argue that the prosecution had become time-barred under the applicable statute of limitations. Similarly, in the written statement (cassatieschriftuur) setting out his grounds of appeal on points of law (cassatiemiddelen) before the Supreme Court, submitted on 25 September 2017, the applicant did not raise this issue.
6. In his advisory opinion of 29 May 2018, the Advocate General at the Supreme Court concluded that the applicant’s grounds of appeal on points of law failed. He noted that he also had not of his own motion found any grounds for overturning the contested judgment of the Court of Appeal.
7. On 30 October 2018, the Supreme Court rejected the applicant’s appeal on points of law. In addition, it reiterated the general rule that prosecution is time-barred if the statute of limitations had expired before or pending the criminal proceedings and that courts of all instances must ex officio examine the issue of statute of limitations and reflect in their rulings that such an examination had been conducted. The Supreme Court proceeded to consider that, according to “current insight” (naar huidig inzicht), an exception to this rule applied in appeal on points of law proceedings. Where the statute of limitations had already expired prior to the submission of an appeal on points of law, the written statement of the grounds of appeal should contain a complaint about the failure of the lower court to examine that issue. The Supreme Court noted that it would continue to make use of its competence to intervene ex officio in the situation that the expiration of the statute of limitations had occurred between the submission of the of the appeal on points of law and the delivery of its judgment, because at that point it would not be possible for a defendant to raise in its written statement that the prosecution had become time-barred. The Supreme Court noted that in the present case it would leave the question whether the statute of limitations had expired prior to the submission of the appeal on points of law.
8. In his application to the Court the applicant claims that in his case the prosecution became time-barred because the transactions at issue took place in February 2008 and he was summoned to appear for a hearing only in June 2015. He complains that the change of the Supreme Court’s practice that it introduced by its judgment in his case was not foreseeable and, since no transitional period was included, had detrimentally affected his situation, in violation with Article 7 § 1 of the Convention.
THE COURT’S ASSESSMENT
9. The Court observes at the outset that it has not been established by any national judicial authority that the prosecution in the applicant’s case had become time-barred pending the criminal proceedings. While the Supreme Court’s “old practice” was still in place, the Advocate General made no observations in the applicant’s case to the effect that the prosecution would have become time-barred (see paragraph 6 above). It therefore remains unclear whether the applicant had been at all affected by the Supreme Court’s decision to change its practice regarding the use of its competence to ex officio examine whether the statute of limitations had expired. However, there is no need to clarify this issue because the Court finds that the applicant’s complaint is inadmissible for the reasons set out below.
10. The parties disagree on whether Article 7 of the Convention was applicable.
11. The Government submitted that Article 7 was not applicable to the present case, because provisions relating to the statute of limitations are of a procedural nature and cannot be regarded as substantive criminal law. The applicant argued that Article 7 should be construed and applied, as followed from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment. The applicant relied on Antia and Khupenia v. Georgia (no. 7523/10, § 42, 18 June 2020).
12. The general principles concerning the requirements of legal certainty and foreseeability under Article 7 of the Convention have been summarised in Del Río Prada v. Spain ([GC], no. 42750/09, §§ 77-79, ECHR 2013). The Court reiterates that Article 7 is not confined to prohibiting the retrospective application of criminal law to an accused’s disadvantage. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege – see ibid., § 78; Coëme and Others v. Belgium, nos. 32492/96 and 4 others, § 145, ECHR 2000-VII). Article 7 also precludes the revival of a prosecution in respect of an offence that has become time-barred (see Advisory opinion on the applicability of statutes of limitation to prosecution, conviction and punishment in respect of an offence constituting, in substance, an act of torture [GC], request no. P16-2021-001, Armenian Court of Cassation, § 77, 26 April 2022). The Court further reiterates that it has classified domestic rules on limitation periods as procedural laws, insofar as they do not define offences and penalties and can be construed as laying down a simple precondition for the assessment of the case (see Orlen Lietuva Ltd. v. Lithuania, no. 45849/13, § 97, 29 January 2019).
13. Turning to the present case, the Court observes that it is not in dispute that the acts committed by the applicant constituted a criminal offence at the time when it was committed, and that the penalty imposed was not heavier than those applicable at the material time. The Court further observes that the applicant has not made any submissions before any judicial instance in respect of the expiry of the statute of limitations, nor does the applicant’s complaint before the Court relate to a finding of a domestic court regarding the statute of limitations (see by contrast Antia and Khupenia, cited above, §§ 10-15 and 40). The applicant’s complaint regarding the change of the Supreme Court’s practice concerns a procedural issue, namely under which circumstances it retained its competence to examine ex officio whether the statute of limitations had expired. The Court considers that the Supreme Court’s decision to limit its ex officio examination on whether the prosecution had become time-barred to the period after the defendant had submitted his or her grounds for appeal on points of law to the Supreme Court and before the delivery of its judgment, does not result in a revival of the prosecution and cannot be regarded to concern substantive criminal law. Moreover, the applicant did not demonstrate that the Supreme Court’s decision to change its practice pertained to the definition of the offence or penalty.
14. In the light of the foregoing the Court concludes that the applicant’s complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 15 May 2025.
Simeon Petrovski Faris Vehabović
Deputy Registrar President