EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 18395/91
Mathilde Elizabeth Lupker and Others
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 13 October 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-5). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 6-11) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 12-16). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-28) . . . . . . . . . . . . . . . . . . . . .3
III. OPINION OF THE COMMISSION
(paras. 29-43) . . . . . . . . . . . . . . . . . . . . .5
A. Complaint declared admissible
(para. 29). . . . . . . . . . . . . . . . . . . . .5
B. Point at issue
(para. 30). . . . . . . . . . . . . . . . . . . . .5
C. General considerations
(paras. 31-32). . . . . . . . . . . . . . . . . . .5
D. Determination and assessment of
the length of the proceedings
(paras. 33-42). . . . . . . . . . . . . . . . . . .5
E. Conclusion
(para. 43). . . . . . . . . . . . . . . . . . . . .6
APPENDIX I : HISTORY OF THE PROCEEDINGS. . . . . . . . . .7
APPENDIX II : DECISION ON THE ADMISSIBILITY . . . . . . . .8
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 five applicants are Dutch citizens and resident at Nijmegen.
The first applicant, Mathilde Elizabeth Lupker, is born in 1967. The
second applicant, Caroline Christine van der Mandele, is born in 1958.
The third applicant, Rudolf Paesie, is born in 1956. The fourth
applicant, Franciscus Johannes Joseph Maria Schoenmaeckers, is born in
1964. The fifth aplicant, Jean Louis Bernard Seveke, is born in 1964.
The applicants are represented before the Commission by
Mrs. Ties Prakken, a lawyer practising in Amsterdam.
3 The application is directed against the Netherlands. The
respondent Government are represented by their Agent,
Mr. Karel De Vey Mestdagh, of the Netherlands Ministry of Foreign
Affairs.
4 The applicants complain under Article 6 para. 1 of the Convention
about the length of criminal proceedings. These proceedings started
on 24 and 25 March 1987 when the applicants were arrested on charges
of participation in an association whose aim was to commit certain
offences (Section 140 para. 1 of the Penal Code) or, subsidiarily, of
incitement to, or complicity in, attempted killing, attempted serious
ill-treatment, ill-treatment, violence against persons and property and
arson. It ended on 16 October 1990 with the Supreme Court's decision
to reject the first, second, third and fifth applicants' appeals in
cassation and to quash the Court of Appeal's judgment as regards the
fourth applicant.
5 Before the Commission, the applicants complain of the length of
the above proceedings and allege a violation of Article 6 para. 1 of
the Convention.
B. The proceedings
6 The application was introduced on 8 April 1991 and registered on
21 June 1991. On 20 February 1992, the Commission decided to give
notice of the application to the respondent Government inviting them
to submit observations in writing on the admissibility and merits of
the application.
7 The Government submitted their observations on 27 May 1992 and
the applicants replied on 1 September 1992.
8 On 7 December 1992, the Commission declared the applicants'
complaint under Article 6 para. 1 of the Convention as to the length
of the proceedings admissible. The remainder of the application was
declared inadmissible.
9 On 7 December 1992, the Commission referred the application to
the Second Chamber.
10 On 14 December 1992, the parties were invited, should they so
desire, to submit further observations regarding the merits of the
application. They did not avail themselves of this possibility.
11 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 of the case. In the light of the parties'
reactions, the Commission now finds that there is no basis on which
such a settlement can be effected.
C. The present Report
12 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:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
13 The text of the Report was adopted on 13 October 1993 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 1 of the Convention.
14 The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
(1) to establish the facts, and
(2) to state an opinion as to whether the facts
found disclose a breach by the State concerned
of its obligations under the Convention.
15 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 forms Appendix II.
16 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
17 On 16 September 1986, parts of an office building at Nijmegen
were occupied by a number of persons as a protest against the town-
planning at Nijmegen and against a law which was seen as directed
against squatters. On 24 December 1986, the President of the Regional
Court (Arrondissementsrechtbank) of Nijmegen decided that the squatters
who occupied the building could be removed by force within three days
from the serving of this decision. The decision was served on
8 January 1987.
18 On 11 January 1987, some windows at the Town Hall of Nijmegen
were crushed, and there was a fire at one of the entrances of the Town
Hall.
19 On 14 January 1987, the Public Prosecutor (Officier van Justitie)
asked the Investigating Judge (Rechter-Commissaris) to open a judicial
investigation against X (unknown person) in regard to the fire at the
Town Hall. According to the police, those who had caused the fire were
to be found within the group of persons occupying the office building.
20 On 19 January 1987, there was unrest at Nijmegen and the
squatters were removed by the police. Ten persons were arrested but
they were all released again within four days.
21 On 21 January 1987, there was a fire at the entrance of the
building of the National Police at Nijmegen. On 2 February 1987, the
Public Prosecutor requested a further judicial investigation about the
incidents on 19 January 1987.
22 On 19 March 1987, the Public Prosecutor again requested a judicial
investigation. As suspects he indicated eight persons, among whom all
five applicants. The charge was extended to cover "participation in
an association whose aim is the commission of offences", this being the
offence provided for in Section 140 para. 1 of the Penal Code (Wetboek
van Strafrecht).
23 On 24 March 1987, searches were carried out at five addresses at
Nijmegen. Seven of the eight suspects (among whom the first, second,
third and fifth applicants) were arrested on that day. The eighth
suspect (the fourth applicant) was arrested on 25 March 1987.
24 The applicants were released on 7 May 1987. Subsequently, they
were indicted, together with three other suspects, before the Regional
Court of Arnhem. They were charged primarily with participation in an
association whose aim was to commit certain offences (Section 140
para. 1 of the Penal Code) or, subsidiarily, with incitement to, or
complicity in, attempted killing, attempted serious ill-treatment, ill-
treatment, violence against persons and property and arson.
25 The trial before the Regional Court was held from 15 October to
7 December 1987. On 21 December 1987, the Regional Court pronounced
its judgment. All the accused were acquitted in respect of the primary
charge but convicted in respect of the subsidiary charge and sentenced
to eight months' imprisonment, out of which four months' imprisonment
would be a conditional sentence.
26 Both the sentenced persons and the Public Prosecutor appealed.
27 On 23 September 1988, the hearing was held before the Court of
Appeal (Gerechtshof) of Arnhem. On 7 October 1988, the Court of Appeal
convicted the accused of the primary charge. The accused were
sentenced to nine months' imprisonment, three months of which would be
a conditional sentence.
28 All the eight sentenced persons appealed on 18 October 1988 to
the Supreme Court (Hoge Raad). The case-file was transmitted to the
Supreme Court on 18 August 1989. In its judgment of 16 October 1990,
the Supreme Court rejected the appeals of seven of the sentenced
persons. In respect of the eighth person (the fourth applicant), the
judgment of the Court of Appeal was quashed.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
29 The Commission declared admissible the applicants' complaint
under Article 6 para. 1 (Art. 6-1) of the Convention concerning the
length of the criminal proceedings against them.
B. Point at issue
30 The point at issue is accordingly whether there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
C. General considerations
31 Article 6 para. 1 (Art. 6-1) first sentence of the Convention
stipulates:
"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."
32 The three criteria established by the case-law of the European
Commission and Court of Human Rights for assessing whether or not the
length of proceedings has been reasonable are the complexity of the
case, the conduct of the applicant and the conduct of the competent
authorities (see Eur. Court H.R., Kemmache judgment of
27 November 1991, Series A no. 218, para. 60).
D. Determination and assessment of the length of the proceedings
33 The proceedings at issue began on 24 and 25 March 1987, when the
applicants were arrested. They ended with the Supreme Court's judgment
of 16 October 1990.
34 The proceedings thus lasted a little less than three years and
seven months.
35 According to the applicants, this lapse of time and in particular
the time between the judgment of the Court of Appeal (7 October 1988)
and the judgment of the Supreme Court (16 October 1990), i.e. about two
years, cannot be regarded as "reasonable" within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention. In particular, the
delay in transmitting the case-file to the Supreme Court after the
judgment of the Court of Appeal was excessively long. The judgment of
the Court of Appeal was given on 7 October 1988 and the case-file was
not transmitted until 18 August 1989, i.e. ten months later, while
according to Section 433 para. 3 of the Code of Criminal Procedure in
force at the relevant time, the time-limit for transmitting the case-
file was 54 days.
36 The Government recall that the proceedings lasted slightly less
than three years and seven months. Viewed as a whole, this period
could not, in the Government's opinion, be considered as unreasonable
as the case was a complicated one with eight suspects and a substantial
file. For the same reasons, the length of the procedure before the
Supreme Court could not be considered as unreasonable. The Government
concede that the statutory time-limit of 54 days laid down in Section
433 para. 3 of the Code of Criminal Procedure for the sending of the
documents from the Registry of the Court of Appeal to the Supreme Court
was not respected. However, they submit that this delay can rarely be
observed in practice. This provision was therefore amended as of
1 May 1992, the fixed limit of 54 days having been replaced by the
words "as soon as possible".
37 The Commission notes that the first instance and the appeal
proceedings lasted slightly more than 18 months. In view of the
circumstances described above (paras. 17-27) it does not find this
period unreasonably long.
38 The period between the lodging of the applicants' appeals to the
Supreme Court and the judgment of that Court was about two years. As
regards this period, there is one striking feature, namely the time
which elapsed before the case-file was transmitted to the Supreme
Court.
39 Although the applicant filed his appeal on points of law on
18 October 1988, the registry of the Supreme Court did not receive the
case-file until 18 August 1989. For this period of ten months, the
Government have offered no satisfactory explanation.
40 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 mai 1993,
Series A no. 248-B, para. 23).
41 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 very short
period of time so as to permit the higher court to start its
examination of the appeal without delay. The period of ten 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 mentioned above,
para. 23; Eur. Court H.R., Abdoella judgment of 25 November 1992,
Series A no. 248-A, para. 24).
42 The Commission therefore finds that the applicants did not have
a hearing within a reasonable time within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention.
E. Conclusion
43 The Commission concludes by 8 votes to 3 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) (S. Trechsel)
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
___________________________________________________________________
8 April 1991 Introduction of application
21 June 1991 Registration of application
Examination of admissibility
20 February 1992 Commission's decision to invite the
Government to submit their
observations on the admissibility and
merits of the application
27 May 1992 Government's observations
1 September 1992 Applicant's observations in reply
7 December 1992 Commission's decision to declare the
application admissible. Commission's
decision to invite the parties,
should they so desire, to submit
further observations on the merits of
the application
Examination of the merits
13 October 1993 Commission's deliberations on the
merits final vote and adoption of the
Report
Full & Egal Universal Law Academy