AS TO THE ADMISSIBILITY OF
Application No. 23230/94
by R.E.P.L.
against the Netherlands
The European Commission of Human Rights sitting in private on
11 January 1995, 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
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 13 October 1993
by R.E.P.L. against the Netherlands and registered on 10 January 1994
under file No. 23230/94;
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 national, born in 1954, and currently
resides at The Hague. Before the Commission he is represented by
Mr. P.J. Baauw, a lawyer practising in Utrecht.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 28 August 1989 in Amsterdam the applicant shot another person
after that person had threatened him with a knife. The next day the
applicant reported the events to the police at Utrecht. He was taken
in detention on remand and charged with manslaughter.
Following a hearing on 11 January 1990, the Regional Court
(Arrondissementsrechtbank) of Amsterdam, finding that the applicant had
acted in legitimate self-defence and used excessive force (noodweer-
exces), decided on 17 January 1990 that he was not to be punished for
manslaughter.
The applicant was consequently discharged and his release
ordered. The applicant was present when the Regional Court pronounced
its decision. On 29 January 1990 the public prosecutor filed an appeal
against the Regional Court's decision.
On 31 January 1990 the Registry of the Regional Court informed
the applicant's lawyer of the appeal. On the same day, the lawyer
informed the applicant of the appeal.
Until 1 May 1992, in cases where only the public prosecutor had
filed an appeal, an appeal court, pursuant to Section 409 para. 2 of
the Code of Criminal Procedure (Wetboek van Strafvordering), could only
formally accept the pertaining case-file when the appeal notification
had been served on the accused in person, or when it was clear that the
accused was aware of the public prosecutor's appeal.
On 20 February 1990 a notification of the appeal was presented
to the applicant's home address in The Hague. However, the applicant
had in the meantime moved to Amsterdam, where at that moment he was
registered in the Population Registry (Bevolkingsregister). The
notification could consequently not be served on him. No message was
left behind. On 27 February 1990 the notification was returned to the
public prosecutor.
On 16 May 1991 the applicant was apprehended by an officer of the
National police (Rijkspolitie), who served him with the notification.
On 26 July 1991 the applicant's case-file was transmitted to the
Court of Appeal (Gerechtshof) of Amsterdam.
The proceedings on appeal started on 7 April 1992. After having
deliberated, the Court of Appeal rejected the applicant's objection
that the prosecution should be declared inadmissible in view of the
length of time which had elapsed between the Regional Court's judgment
and the proceedings on appeal.
Although holding that this delay was longer than desirable, it
found that this should not result in the inadmissibility of the
prosecution and that the period at issue could not be regarded as
unreasonably long. In this finding the Court had regard to the fact
that both the applicant's lawyer, who was aware of the contents of
Section 409 para. 2 of the Code of Criminal Procedure, and the
applicant knew that the public prosecutor had filed an appeal, and that
they had remained in regular contact. It stated that the applicant
could have informed the Registry of the Regional Court or the Court of
Appeal that he was aware of the appeal. Although acknowledging that the
applicant was under no obligation to do so, the Court of Appeal held
that, where the accused, while being assisted by a lawyer, is aware of
the appeal, his passive attitude does affect the plea based on Article
6 para. 1 of the Convention.
The Court of Appeal subsequently adjourned its proceedings until
19 June 1992 in order to enable the prosecution to summon two
witnesses. The applicant stated he did not wish to hear any witnesses.
On 19 June 1992 the Court of Appeal resumed the proceedings and
examined the two witnesses.
On 3 July 1992 the Court of Appeal quashed the Regional Court's
judgment of 17 January 1990, convicted the applicant of manslaughter
and sentenced him to seven years' imprisonment under deduction of the
time spent in pre-trial detention.
In respect of the determination of the sentence, the Court of
Appeal stated, inter alia:
"The facts found proven, i.e. manslaughter, belongs to the most serious category of offences punishable under the Criminal Code. The legislator threatens the offence with imprisonment of up to fifteen years. The legal order is seriously rocked by this fact. The court has further considered that already earlier the suspect has rendered himself guilty of an offence involving violence. In principle the court finds - noting the serious gravity of the facts established - the sentence requested by the public prosecution in first instance and on appeal [seven years' imprisonment] to be insufficient. Only in view of the long period of time, which elapsed since 28 August 1989, the court finds reason to confine itself to [the imposition of] a prison sentence for a duration of seven years." The applicant's appeal in cassation to the Supreme Court (Hoge Raad) was rejected on 20 April 1993. As to the applicant's complaint that the Court of Appeal had unjustly rejected his argument, based on Article 6 para. 1 of the Convention, that the prosecution should be declared inadmissible, the Supreme Court accepted the Court of Appeal's reasoning. COMPLAINT The applicant complains under Article 6 para. 1 of the Convention that the criminal charges against him have not been determined within a reasonable time. He complains in particular about the period of time which elapsed between 17 January 1990, when the Regional Court gave its judgment, and 7 April 1992, when the first hearing on appeal took place. 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. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides as follows: "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 at issue started on 29 August 1989, when the applicant was taken into detention on remand, and ended on 20 April 1993, when the Supreme Court rejected his appeal in cassation. They thus lasted three years and almost eight months. 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 confining - on the sole basis of the length of the proceedings - itself to imposing the prison sentence requested by the public prosecutor despite its finding that this sentence was insufficient, has implicitly acknowledged that there had been an undue delay in the proceedings and has thus afforded redress as to the delay between the decision of the Regional Court and the proceedings on appeal. The Commission recalls that an applicant can no longer claim to be a "victim" within the meaning of Article 25 (Art. 25) of the Convention 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, after having recalled that the maximum penalty for manslaughter under Dutch law is fifteen years' imprisonment and after having found that the sentence of seven years' imprisonment requested by the public prosecutor was insufficient, explicitly took the length of the proceedings into account when it decided, on the sole basis of that length, not to impose a higher sentence than the one requested by the public prosecutor. 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 imposing a lower sentence than the one it considered the offence at issue did in fact call for. It follows 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 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) (H. DANELIUS)
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