AS TO THE ADMISSIBILITY OF
Application No. 20773/92
by L.v.L.
against the Netherlands
The European Commission of Human Rights sitting in private on
2 September 1994, 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
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 29 June 1992 by
L.v.L. against the Netherlands and registered on 29 September 1992
under file No. 20773/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch citizen, born in 1948 and resident at
Bergen (NH), the Netherlands. Before the Commission he is represented
by Mr. F. van Schaik, a lawyer practising in Berkel en Rodenrijs.
The facts as presented by the applicant may be summarised as
follows.
In March 1987 the applicant was arrested on suspicion of having
imported hard drugs into the Netherlands and was detained on remand.
He was released after about ten days, but immediately arrested and
detained on remand again on the suspicion of having committed tax fraud
by intentionally having failed to declare certain earnings to the tax
authorities. On 30 June 1987 he was released from his detention on
remand on formal grounds.
By summons of 19 June 1987 the applicant was ordered to appear
before the Regional Court (Arrondissementsrechtbank) of Alkmaar on
charges of tax fraud. On 8 December 1987 the Regional Court convicted
the applicant of tax fraud and sentenced him to 2 years' imprisonment
and a fine of 20,000 Dutch Guilders. Both the applicant and the public
prosecutor appealed against this judgment to the Court of Appeal
(Gerechtshof) of Amsterdam.
The first hearing on appeal took place on 30 October 1989. In its
interlocutory judgment of 13 November 1989 the Court of Appeal decided
to reopen the investigation and to adjourn its examination for an
unspecified period pending the outcome of related tax proceedings.
These latter proceedings were pending before the tax chamber of the
Court of Appeal of Amsterdam and concerned the question whether or not
the undeclared earnings at issue constituted taxable income.
On 22 May 1990 the tax chamber of the Court of Appeal of
Amsterdam delivered two judgments in which it found the applicant's
taxable income in 1982 was not 17.097 Dutch guilders as declared by
him, but amounted to 467.097 Dutch guilders; and that his income in
1983 was not 22.233 Dutch guilders as declared by him, but amounted to
450.000 Dutch guilders.
On 19 November 1990 the Court of Appeal of Amsterdam resumed its
examination. On 3 December 1990 it convicted the applicant of tax fraud
and sentenced him to 21/2 years' imprisonment with deduction of the time
he had spent in pre-trial detention and a fine of 350,000 Dutch
guilders. The Court of Appeal imposed a shorter prison sentence than
the sentence proposed by the public prosecutor, who had requested 4
years' imprisonment. It held in this respect that:
[Dutch]
"Met de procureur-generaal is het hof van oordeel dat de in
eerste aanleg bepaalde duur van de opgelegde gevangenisstraf in
onvoldoende mate recht doet aan de ernst van het bewezene. Echter
gelet op de omstandigheid dat tussen de datum van uitspraak van
het vonnis van de rechtbank en de eerste behandeling van de zaak
in hoger beroep een onwenselijk lange periode is verstreken,
terwijl daarna bovendien nog een tussenarrest nodig bleek, zal
het hof bepalen dat aan verdachte een gevangenisstraf wordt
opgelegd van een minder lange duur dan door de procureur-generaal
is gevorderd."
[Translation]
"The Court agrees with the procurator-general that the duration
of the prison sentence imposed in first instance does not
sufficiently do justice to the seriousness of what has been
proven. However, considering that between the date of the
pronouncement of the judgment of the Regional Court and the first
hearing on appeal an undesirably long period has elapsed, and
that moreover an interlocutory judgment appeared to be necessary,
the Court will impose a shorter prison sentence than the one
demanded by the procurator-general."
The applicant's appeal in cassation was rejected by the Supreme
Court (Hoge Raad) on 10 March 1992. Insofar as the applicant complained
that the Court of Appeal had insufficiently indicated how it had taken
the violation of the "reasonable time" requirement contained in
Article 6 of the Convention into account in the determination of the
sentence, the Supreme Court noted that the Court of Appeal had not
found a violation of Article 6 of the Convention, but had taken the
unreasonably long period that had elapsed between the judgment of the
Regional Court and the first hearing on appeal into account in the
determination of the sentence. Having regard to the difference between
the sentence requested by the prosecution and the sentence imposed, the
Supreme Court found that the Court of Appeal had clearly indicated to
which extent it had taken that period into account.
COMPLAINT
The applicant complains under Article 6 para. 1 of the Convention
that the criminal charges against him were not determined within a
reasonable time, in particular in view of the time which elapsed
between the judgment of the Regional Court and the judgment of the
Court of Appeal.
THE LAW
The applicant complains that the criminal charges against him
have not been determined within a reasonable time as required by
Article 6 para. 1 (Art. 6-1) of the Convention.
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 Commission notes that the proceedings complained of started
in March 1987, when the applicant was arrested and detained on remand,
and ended on 10 March 1992 when the Supreme Court rejected his appeal
in cassation. They thus lasted about five years.
The question, however, arises whether or not the applicant can
still claim to be a victim of a violation within the meaning of Article
25 (Art. 25) of the Convention given the fact that the Court of Appeal,
by imposing a reduced prison sentence, has implicitly acknowledged that
the proceedings were too long and has afforded some redress as to the
delay between the judgment of the Regional Court and the proceedings
on appeal.
The Commission recalls that an applicant can no longer claim to
be a victim of the failure to observe the "reasonable time" requirement
contained in Article 6 para. 1 (Art. 6-1) of the Convention when the
national authorities have acknowledged either expressly or in substance
the breach of that provision and if redress has been given (cf.
Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 51,
pp. 30-31, para. 66; No. 10232/83, Dec. 16.12.83, D.R.35 p. 213; and
Pannetier v. Switzerland, Comm. Report 12.7.85, paras. 86-87, D.R. 46
p. 5).
The Commission notes that the Court of Appeal explicitly took the
time which elapsed between the judgment of the Regional Court and the
first hearing on appeal and the adjournment of its examination into
account when it decided to impose a shorter prison sentence than the
sentence requested by the prosecution. The Commission is, therefore,
of the opinion that the judicial authorities implicitly acknowledged
a breach of Article 6 para. 1 (Art. 6-1) of the Convention and in
substance afforded redress for any damage suffered by the applicant as
a result of the length of the proceedings by the mitigation of the
sentence imposed.
It follows that the applicant can no longer claim to be a victim
of a violation of his right to a hearing within a reasonable time as
guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention, and his
application must therefore be rejected under Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy