AS TO THE ADMISSIBILITY OF
Application No. 32366/96
by Arie Wilhelmus José LAURENS
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 1 July 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
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 December 1995
by Arie Wilhelmus José LAURENS against the Netherlands and registered
on 22 July 1996 under file No. 32366/96;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
20 November 1997 and the observations in reply submitted by the
applicant on 16 December 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch national, born in 1946, and resides in
De Zilk, the Netherlands. He is represented by Mr G. Spong, a lawyer
practising in The Hague.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. Particular circumstances of the present case
On 1 January 1988, an amendment of the Social Security
Co-ordination Act (Coördinatiewet Sociale Verzekeringen) entered into
force. According to this amendment, certain acts contrary to this Act
were no longer classified as a misdemeanour (overtreding) but as an
offence (misdrijf).
On 4 December 1989, the public prosecutor at the Regional Court
(Arrondissementsrechtbank) of Haarlem requested the opening of a
preliminary judicial investigation (gerechtelijk vooronderzoek) against
the applicant and his father.
On 11 December 1989, the applicant was arrested and detained in
police custody (inverzekeringstelling) on suspicion of having violated
the Social Security Co-ordination Act.
On 14 December 1989, upon the request of the public prosecutor,
the investigating judge (rechter-commissaris) ordered the detention on
remand (inbewaringstelling) of both the applicant and his father. On
the same day the applicant was informed that a preliminary judicial
investigation against him had been opened on suspicion of violations
of the Social Security Co-ordination Act.
The applicant was released on 17 January 1990. In the course of
1990 several hearings took place, including the applicant's, who was
last heard in September 1990.
The preliminary judicial investigation in the case of the
applicant's father was closed on 8 April 1991 and the first hearing
before the Regional Court took place on 15 May 1991. On that occasion,
the Regional Court decided to suspend the proceedings against the
applicant's father in order to have a witness heard before the
investigating judge. On 23 October 1991 the Regional Court resumed the
proceedings; it handed down its judgment on 6 November 1991. The
applicant's father filed an appeal on 12 November 1991.
Around 11 December 1991, the case-file on both the applicant and
his father, which had been combined, was split and a separate case-file
on the applicant was opened. On 29 January 1992, upon request of the
public prosecutor, the investigating judge closed the preliminary
judicial investigation against the applicant, who was notified of this
decision on 10 February 1992.
On 19 February 1992, the applicant was informed that he had been
committed for trial (kennisgeving van verdere vervolging). His
objection against his committal for trial was determined by the
Regional Court on 7 April 1992. On 4 June 1992, a summons to appear on
15 June 1992 before the Magistrate (politierechter) of the Regional
Court of Haarlem on charges of misdemeanours and offences under the
Social Security Act committed between 1 January 1986 and 11 December
1989 was served on the applicant.
On 15 June 1992, the Magistrate convicted and sentenced the
applicant of misdemeanours (in respect of facts occurred in 1986 and
1987) and offences (in respect of facts occurred in 1988 and 1989)
under the Social Security Act. Both the applicant and the prosecution
filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam.
On 1 October 1992, the applicant's case-file was transmitted to the
Court of Appeal where it was received on 8 October 1992.
The first hearing before the Court of Appeal took place on
19 November 1993. Upon the applicant's request, the Court of Appeal
adjourned its proceedings as an administrative court was considering
a connected case, the outcome of which being of relevance to the
present case.
The Court of Appeal resumed the proceedings on 18 February 1994.
As its composition had changed in the meantime, the Court of Appeal
fully recommenced its examination of the applicant's case. The
proceedings were adjourned for a second time, as the applicant did not
wish to waive his right to hear witnesses. The Court of Appeal ordered
these witnesses to be summoned. On 18 May 1994, the hearing before the
Court of Appeal was concluded.
In its judgment of 1 June 1994, the Court of Appeal declared the
appeals filed by the prosecution and the applicant inadmissible insofar
as the Magistrate had convicted the applicant of misdemeanours, as no
appeal lies against a conviction of a misdemeanour.
Insofar as the applicant had been convicted of offences, the
Court of Appeal quashed the judgment of 15 June 1992 and convicted the
applicant of offences under the Social Security Co-ordination Act
committed between 1 January 1988 and 11 December 1989 and imposed a
suspended conditional prison sentence of two months and a fine of
10,000 Dutch guilders, and, pursuant to Article 423 para. 4 of the Code
of Criminal Procedure, determined the sentence for the misdemeanours
of which the applicant had been found guilty by the Magistrate at a
fine of 2,500 Dutch guilders.
Insofar as the applicant had argued that the prosecution should
be declared inadmissible on grounds of the unreasonably long duration
of the proceedings, in particular given the delay of 17 months between
September 1990 and 19 February 1992 and the further delay of 17 months
between 15 June 1992 and 19 November 1993, the Court of Appeal held
that these proceedings had lasted undesirably long. However, given the
volume and complexity of the case, the Court of Appeal did not find the
total duration to be so unreasonably long within the meaning of Article
6 para. 1 of the Convention that it should lead to the inadmissibility
of the prosecution. It would, however, take the duration of the
proceedings into account in the determination of its sentence.
In this determination the Court of Appeal considered that an
unconditional prison sentence of two months and a fine of 10,000 Dutch
guilders would be appropriate, but given the time which had elapsed
between the commission of the offences and the proceedings on appeal,
it decided to limit the prison sentence to a suspended conditional one.
The applicant filed an appeal in cassation with the Supreme Court
(Hoge Raad).
On 13 June 1995, the Supreme Court rejected the applicant's
appeal in cassation insofar as it concerned his conviction of offences
by the Court of Appeal. Insofar as the applicant had been convicted of
misdemeanours, the Supreme Court, finding that the proceedings in this
respect had exceeded a reasonable time within the meaning of Article
6 para. 1 of the Convention, quashed the Magistrate's judgment of
15 June 1992 and declared the prosecution inadmissible.
B. Relevant domestic law
Article 423 para. 4 of the Code of Criminal Procedure reads:
[Translation]
"If, in the event of a concurrence of several offences, a single
principal punishment is pronounced and an appeal is lodged only
in respect of one or more of the said offences, the punishment
for the other offence(s) shall, in case the original sentence is
quashed, be determined in the judgment on appeal."
Article 369 of the Code of Criminal Procedure provides:
[Translation]
"Proceedings shall be brought before the Magistrate where, in the
opinion of the prosecuting officer, the nature of the case is
simple, also in respect of the evidence and the application of
the law and where no sentence higher that a number of months of
imprisonment to be determined by the King, not more than six, is
to be imposed."
COMPLAINT
The applicant complains that the criminal proceedings against
him, which have lasted altogether about 61/2 years, have exceeded a
reasonable time within the meaning of Article 6 para. 1 of the
Convention. He complains in particular of the period of inactivity
between his last hearing in the preliminary judicial investigation in
September 1990 and his committal for trial on 19 February 1992. He
further complains of the delay between the Magistrate's judgment of
15 June 1992 and the first hearing on appeal on 19 November 1993.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 11 December 1995 and registered
on 22 July 1996.
On 10 September 1997 the Commission decided to communicate the
application.
The Government's written observations were submitted on
20 November 1997. The applicant replied on 16 December 1997.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the criminal charges against him have not been
determined within a reasonable time, in particular given two delays
which occurred in the course of the proceedings against him.
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 ..."
The Government submit that the case involved evasion of social
security legislation, which in general demands a preparation time
longer than the average. The duration of the present proceedings can
be attributed partly to this and partly to the behaviour of the
applicant, who has sought adjournments by the Court of Appeal, which
were granted in the interest of the defence.
The Government agree that both delays indicated by the applicant
were longer than is appropriate and submit that they were caused by
internal organisational reasons. However, according to the Government,
the applicant was substantially and sufficiently compensated for the
disadvantages he suffered as a result of the long duration of the
proceedings given the mitigation of his sentence imposed by the Court
of Appeal and the decision by the Supreme Court to declare the
prosecution inadmissible in respect of the oldest offences, i.e. the
misdemeanours.
Referring to the competence of the Magistrate set out in
Article 369 of the Code of Criminal Procedure, the applicant contests
the Government's argument that the complexity of the case required a
longer preparation time than the average. He submits that these
proceedings are meant to be for simple cases only and adds that, on
average, a hearing before the Magistrate in cases of this kind takes
about twenty minutes. The applicant maintains that the proceedings
against him lasted excessively long and, on that ground, the
prosecution should have been declared inadmissible.
The Commission recalls that an applicant may lose the status of
victim within the meaning of Article 25 (Art. 25) of the Convention
when the national authorities have acknowledged either expressly or in
substance, and then afforded redress for, the breach of the Convention
complained of (cf. Eur. Court HR, Eckle v. Germany judgment of 15 July
1982, Series A no. 51, p. 30, para. 66; and No. 23871/94,
Dec. 16.10.96, D.R. 87, p. 45).
The Commission notes in the first place that the Court of Appeal
acknowledged that the proceedings against the applicant had lasted
unreasonably long, but did not consider that this should lead to the
inadmissibility of the prosecution. On the basis of the duration of the
proceedings it did, however, mitigate the applicant's sentence by
imposing a suspended conditional prison sentence instead of the
unconditional prison sentence which it considered would have been
appropriate in normal circumstances.
In addition the Supreme Court, in its judgment of 13 June 1995,
declared the prosecution inadmissible in respect of the misdemeanours
of which the applicant had been convicted, finding that the proceedings
in respect of these charges had exceeded a reasonable time within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission observes that the applicant does not appear to
dispute that the mitigation of his sentence and the partial
inadmissibility of the prosecution constituted a certain redress for
the duration of the proceedings against him, but he considers this
redress to be insufficient.
Given the reasons stated by the Court of Appeal for mitigating
the applicant's sentence and by the Supreme Court for declaring the
prosecution partially inadmissible and the consequential reduction of
the applicant's sentence, the Commission finds that these decisions
taken together constitute adequate redress for the unreasonably long
duration of the proceedings complained of.
The Commission is, therefore, of the opinion that the applicant
can no longer claim to be a victim within the meaning of Article 25
(Art. 25) of the Convention of a violation of the reasonable time
requirement under Article 6 para. 1 (Art. 6-1) of the Convention (cf.
No. 17669/91, Dec. 31.3.93, D.R. 74, p. 156).
It follows that the application must be rejected as 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,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy