EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 20882/92
José Giovannie Mangwa KOC
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 22 February 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-20). . . . . . . . . . . . . . . . . . . . . . . . 3
III. OPINION OF THE COMMISSION
(paras. 21-33). . . . . . . . . . . . . . . . . . . . . . . . 4
A. Complaint declared admissible
(para. 21) . . . . . . . . . . . . . . . . . . . . . . . 4
B. Point at issue
(para. 22) . . . . . . . . . . . . . . . . . . . . . . . 4
C. Compliance with Article 6 para. 1 of the Convention
(paras. 23-32) . . . . . . . . . . . . . . . . . . . . . 4
CONCLUSION
(para. 33) . . . . . . . . . . . . . . . . . . . . . . . 5
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . . 6
APPENDIX II : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . 7
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Dutch citizen, born in 1965. At the time of
the introduction of the application the applicant was detained in the
Aruba remand centre. He was represented before the Commission by
Mr. G. Spong, a lawyer practising in The Hague.
3. The application is directed against the Netherlands. The
respondent Government were represented by their Agent,
Mr. K. de Vey Mestdagh, of the Netherlands Ministry of Foreign Affairs.
4. The applicant complains under Article 6 para. 1 of the Convention
that the criminal proceedings against him have exceeded a reasonable
time. These proceedings began with the applicant's arrest on
8 March 1989 and ended on 28 April 1992 when the Supreme Court rejected
his appeal in cassation.
B. The proceedings
5. The application was introduced on 21 August 1992 and registered
on 16 November 1992.
6. On 30 June 1993 the Commission (Second Chamber) decided, pursuant
to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite them to submit
written observations on the admissibility and the merits of the
application.
7. The Government's observations were submitted on
27 September 1993. The applicant replied on 9 December 1993. On
17 January 1994 the Government submitted additional observations. The
applicant's additional observations in reply were submitted on
1 February 1994.
8. On 11 May 1994 the Commission (Second Chamber) declared the
applicant's complaint under Article 6 para. 1 of the Convention as to
the length of the proceedings admissible.
9. The text of the Commission's decision on admissibility was sent
to the parties on 25 May 1994 and they were invited to submit such
further information or observations on the merits as they wished. The
parties did not avail themselves of this possibility.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. To this end consultations took place with the
parties between 7 July 1994 and 28 October 1994. In the light of the
parties' reaction, the Commission now finds that there is no basis on
which such a settlement can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission (Second
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
12. The text of this Report was adopted on 22 February 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
16. On 8 March 1989 the applicant was apprehended by the police of
Aruba on the suspicion of having committed offences under the
Netherlands Antilles/Aruba Narcotics Act (Landsverordening Verdovende
Middelen) and subsequently detained on remand.
17. On 15 September 1989 the Court of First Instance (Gerecht in
Eerste Aanleg) of Aruba convicted the applicant under the Netherlands
Antilles/Aruba Narcotics Act and sentenced him to eight years'
imprisonment.
18. On 26 June 1990 the Court of Appeal of the Netherlands Antilles
and Aruba (Gemeenschappelijk Hof van Justitie van de Nederlandse
Antillen en Aruba) quashed the judgment of 15 September 1989. After a
new examination of the case it convicted the applicant under the
Netherlands Antilles/Aruba Narcotics Act and sentenced him to
seven years' imprisonment.
19. On 29 June 1990 the applicant filed an appeal in cassation with
the Supreme Court (Hoge Raad). On 11 April 1991 the Registrar of the
Court of Appeal sent the documents concerning the applicant's case to
the Supreme Court, where they were received on 15 April 1991. The
Supreme Court started its examination of the case on 14 January 1992.
On 28 April 1992 the Supreme Court rejected the appeal in cassation.
20. The Supreme Court examined the applicant's complaint that, in
view of the period between the introduction of his appeal in cassation
and the examination of the appeal by the Supreme Court whilst he
continued to be detained, the length of the proceedings had exceeded
"a reasonable time" within the meaning of Article 6 para. 1 of the
Convention. The Supreme Court noted that the period between
8 March 1989, when the applicant was apprehended and subsequently
detained on remand, and 14 January 1992, when the Supreme Court started
its examination of the applicant's appeal, was two years, ten months
and six days. The Supreme Court considered that such a period cannot,
in general, be regarded as unreasonable and that in the present case
there were no circumstances leading to a different conclusion.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
21. The Commission has declared admissible the applicant's complaint
concerning the length of the criminal proceedings against him.
B. Point at issue
22. The point at issue is accordingly whether there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
C. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention
23. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"In the determination of (...) any criminal charge against him,
everyone is entitled to a (...) hearing within a reasonable time
by a (...) tribunal established by law."
24. The proceedings at issue began on 8 March 1989, when the
applicant was apprehended on the suspicion of narcotics offences and
ended with the Supreme Court's judgment of 28 April 1992. They thus
lasted more than three years and one month.
25. The Commission recalls that the reasonableness of the length of
criminal proceedings must be assessed in the light of the particular
circumstances of the case and having regard to its complexity, the
conduct of the applicant and the conduct of the competent authorities
(cf. Eur. Court H.R., Kemmache judgment of 27 November 1991, Series A
no. 218, para. 60).
26. The applicant submits that the period which elapsed between the
judgment of the Court of Appeal of the Netherlands Antilles and Aruba
(26 June 1990) and the judgment of the Supreme Court (28 April 1992),
i.e. 22 months, cannot be regarded as "reasonable" within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention. He complains in
particular of the delay in transmitting the case-file to the Supreme
Court after the judgment of the Court of Appeal. The judgment of the
Court of Appeal was given on 26 June 1990 and the case-file was not
transmitted until 11 April 1991, i.e. 9½ months later, while according
to Section 11 para. 3 of the Rules of Cassation for the Netherlands
Antilles in force at the relevant time, the time-limit for transmitting
the case-file was 84 days.
27. The Government submit that the statutory rule concerning the
delay for the transmission of a case-file to the Supreme Court, which
is no longer in force, was merely a norm to be observed by the
Registrar of the Court which gave the ruling against which an appeal
in cassation has been lodged. The failure to respect this norm does not
entail nullity. The Government further submit that the Supreme Court,
once it had received the case-file, delivered judgment within a
reasonable time.
28. The Commission notes that the facts in the present case were not
very complex.
29. The applicant made use of the remedies available to him, but
there can be no objection to an accused in criminal proceedings making
use of the ordinary remedies available to him under domestic law.
30. With regard to the conduct of the judicial authorities dealing
with the case, the Commission notes that the period between the day on
which the applicant lodged his appeal in cassation (29 June 1990) and
the day on which the Supreme Court received the applicant's case-file
from the Court of Appeal (15 April 1991) lasted about 9½ months. The
Government have offered no explanation for this delay.
31. The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention imposes on the Contracting States the duty to organise their
legal system in such a way that their courts can meet each of its
requirements (Eur. Court H.R., Bunkate judgment of 26 May 1993,
Series A no. 248-B, p. 31, para. 23).
32. The Commission finds in particular that, where an appeal is
lodged against a court's judgment, it should be possible for that court
to transmit the case-file to the higher court within a short period of
time so as to permit the higher court to start its examination of the
appeal without delay. The period of 9½ months which elapsed in the
present case cannot therefore be regarded as "reasonable" for the
purposes of Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur.
Court H.R., Bunkate judgment loc. cit., p. 31, para. 23; and Eur. Court
H.R., Abdoella judgment of 25 November 1992, Series A no. 248-A, p. 17,
para. 24).
CONCLUSION
33. The Commission concludes, by 12 votes to 1, that there has been
a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
_________________________________________________________________
21 August 1992 Introduction of application
16 December 1992 Registration of application
Examination of admissibility
30 June 1993 Commission's decision (Second Chamber) to
communicate the case to the respondent
Government and to invite the parties to
submit observations on admissibility and
merits
27 September 1993 Government's observations
9 December 1993 Applicant's observations in reply
17 January 1994 Government's additional observations
1 February 1994 Applicant's additional observations in
reply
11 May 1994 Commission's decision to declare
application admissible
Examination of the merits
25 May 1994 Decision on admissibility transmitted to
parties. Invitation to parties to submit
further observations on the merits, should
they so desire
6 September 1994 Commission's consideration of state of
proceedings
17 January 1995 Commission's consideration of state of
proceedings
22 February 1995 Commission's deliberations on the merits,
final vote and adoption of the Report
Full & Egal Universal Law Academy