AS TO THE ADMISSIBILITY OF
Application No. 12055/86
by Jacobus J.P. KEIJSPER
against the Netherlands
The European Commission of Human Rights sitting in private
on 8 September 1988, the following members being present:
MM. C.A. NØRGAARD, President
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy 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 5 October 1984
by Jacobus J.P. KEIJSPER against the Netherlands and registered
on 19 March 1986 under file No. 12055/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, who is a Dutch citizen, was born on
25 February 1933 and is presently residing in Breda, the Netherlands.
In the proceedings before the Commission he is represented by
Mr. F.R. van der Laken, a lawyer practising in Breda.
On 5 April 1984 the Regional Court of 's-Hertogenbosch found
the applicant guilty of co-operating in drug-trafficking from the
Netherlands to the United Kingdom, which constitutes a crime
within the meaning of the Dutch Narcotics Act. The applicant was
sentenced to 18 months imprisonment.
On the same day, the applicant lodged an appeal with the Court
of Appeal in 's-Hertogenbosch.
In the meantime, the applicant's detention on remand, which
had started at some date before the Regional Court's judgment,
continued. According to Section 557 of the Code of Penal Procedure,
the execution of a judgment is suspended until after an ordinary remedy
instituted against it has been withdrawn or decided upon. The
applicant's continued detention after his conviction on 5 April 1984
was, under Dutch law, considered as detention on remand. After that
date, the periodical control of the lawfulness of the continued
detention on remand passed from the Regional Court to the Court of
Appeal.
On 24 April, 22 May, 15 June, 24 July and 21 August 1984, the
Court of Appeal, upon requests by the Attorney-General, ordered the
prolongation of the applicant's detention. At the hearings held on
the occasion of the requests by the Attorney-General, the applicant's
lawyer pleaded that his client was not guilty and that the suspicion
against his client was insufficient to justify a continuation of the
detention. He also objected to the fact that the applicant's
case-file, including the judgment of the Regional Court and the
procès-verbal of the hearing before that court, was not, at the time of
the first three orders, in the possession of the Court of Appeal or of
the Attorney-General. During the hearing on 15 June 1984, the
Attorney-General declared that the applicant's case-file had been with
the registry of the Court of Appeal at least once and that copies were
made of the most important testimonies, which show sufficient grounds
for continuation of the detention. He indicated, in particular, that
the applicant already had a criminal record and that there existed a
fear of repetition, having regard to the organised nature of the crime
of which he was suspected.
On 25 June 1984, copies of the Regional Court's judgment of
5 April 1984 were sent to the registry of the Court of Appeal.
According to the applicant, it is doubtful whether an integral text of
the judgment was at all in written form before its submission to the
registry of the Court of Appeal.
On 9 October 1984, the Court of Appeal upheld the judgment of
the Regional Court. On 4 June 1985, Supreme Court quashed this
decision on the ground that the Court of Appeal had wrongly based its
judgment on testimony which was put into doubt by a later statement of
the witness concerned.
The case was referred to the Arnhem Court of Appeal which
acquitted the applicant on 21 November 1986.
On 10 July 1987, the Arnhem Court of Appeal granted the
applicant 50,000 Dutch guilders damages in respect of the detention on
remand he has suffered.
COMPLAINTS
The applicant complains that the prolongation of his detention
on remand on 24 April, 22 May and 15 June 1984 amounts to a violation
of Article 5 paras. 3 and 4 and Article 6 para. 1 of the Convention,
since the Court of Appeal took its decisions without having recourse
to the case-file.
He alleges that the relevant proceedings before the Court
of Appeal were not fair within the meaning of Article 6 of the
Convention, because the court was not able to form an opinion on the
validity of the applicant's arguments for termination of the
detention. For the same reason, the applicant alleges that Article 5
para. 3 of the Convention was violated, since a decision to release
pending trial presupposes an assessment of the arguments for and
against on the part of the judge. Nor can there be, according to the
applicant, an acceptable decision on the lawfulness of the detention
as envisaged in Article 5 para. 4 of the Convention when the competent
court does not possess the case-file.
THE LAW
1. The applicant has alleged that the prolongation of his
detention on remand, ordered by the Court of Appeal on 24 April, 22
May and 15 June 1984 constitutes a violation of Article 5 para. 3
(Art. 5-3) of the Convention on account of the fact that the orders
were given without the Court having recourse to the case-file
concerning the applicant.
The Commission first notes that the decision complained of
concerned the applicant's detention on remand after his conviction in
first instance by the Regional Court on 5 April 1984.
It follows from the case-law of the Commission and the
European Court of Human Rights that, for the purposes of the
Convention, such a detention on remand after conviction while an
appeal is pending should be considered as detention "after conviction"
within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the
Convention, even if detention continues to be considered as detention
on remand under domestic law (Eur. Court H.R., Wemhoff judgment of 27 June
1968, Series A no. 7, p. 23-24, para. 9; No. 8555/79, Dec. 4.12.79,
D.R. 20 p. 199; No. 9132/80, Dec. 16.12.82, D.R. 31 p. 154).
In the present case, therefore, the applicant's detention
after his conviction on 5 April 1984 cannot be regarded as detention
under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention. It
follows that Article 5 para. 3 (Art. 5-3) does not apply to that
period of detention. This complaint must therefore be rejected as
incompatible ratione materiae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant has further complained that Article 5 para. 4
(Art. 5-4) of the Convention was violated in that the Court of Appeal
could not adequately decide upon the lawfulness of his detention since
it did not have recourse to the case-file.
However, even assuming that Article 5 para. 4 (Art. 5-4) of the
Convention is applicable to the Court of Appeal's decisions to prolong
the applicant's detention, the Commission finds that there is no
appearance of a violation of this provision since it is clear that,
for the purposes of Article 5 para. 4 (Art. 5-4), the requisite
judicial control was incorporated in the applicant's original
conviction by the Regional Court (cf. inter alia, Eur. Court H.R., De
Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p.
40, para. 76).
It follows that this part of the application must be rejected
as manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicant has also complained that the Court of Appeal
could not have due regard to his arguments for the termination of his
detention since it lacked knowledge of the relevant documents. He has
alleged that the proceedings concerned were not fair within the
meaning of Article 6 (Art. 6) of the Convention.
However, the Commission notes that the proceedings complained
of concerned prolongations of the applicant's detention and that they
did not involve a determination of a criminal charge within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. mutatis
mutandis, No. 6541/74, Dec. 18.12.74, D.R. 1 p. 82).
It follows that the proceedings complained of fall outside the
scope of Article 6 para. 1 (Art. 6-1) and that, therefore, this part of the
application is also incompatible ratione materiae with the provisions of
the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission,
DECLARES THE APPLICATION INADMISSIBLE
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)