THIRD SECTION
DECISION
Application no. 20328/08
Gouda SALLAM
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 11 December 2012 as a Committee composed of:
Alvina Gyulumyan, President,
Kristina Pardalos,
Johannes Silvis, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 23 April 2008,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Gouda Sallam, is a Dutch national, who was born in 1962 and lives in Groningen. He is represented before the Court by Ms M.S. de Groene, a lawyer practising in Groningen.
2. The Dutch Government (“the Government”) are represented by their Agent, Mr R.A.A. Böcker, and their Deputy Agent, Ms L. Egmond, both of the Ministry of Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant was suspected of tax and social security fraud. On 1 February 2001 his premises were searched.
5. On 16 December 2002 the applicant filed a report with the police of tax fraud, allegedly committed by his former business partner.
6. On 4 May 2004 the Groningen Regional Court (rechtbank) found the applicant guilty of a number of offences and sentenced him to a fifteen‑month prison term, of which five months were suspended. The Regional Court took note of the time that the applicant’s trial had already taken and noted that, had it not been for this long period of time, it would have sentenced the applicant to an eighteen-month prison term, of which six would have been suspended.
7. On 14 May 2004 the applicant lodged an appeal against the Regional Court’s judgment with the Leeuwarden Court of Appeal (gerechtshof). He submitted, inter alia, that the Regional Court had failed to acknowledge the substantial violation of the reasonable time requirement and should have declared the case against him inadmissible. Alternatively, and in view of the length of the proceedings as well as his personal circumstances, the applicant argued that only a penal community service order (taakstraf) should be imposed on him rather than a custodial sentence.
8. The Court of Appeal dismissed the applicant’s appeal on 31 January 2006, considering that the results of the investigation into the criminal complaint filed by the applicant against his former business partner had had to be awaited since those results were also of importance for the case against the applicant. The ensuing delay was no reason to conclude that the reasonable time requirement had been violated. The Court of Appeal sentenced the applicant to a fifteen-month prison term, of which five were suspended. When determining the sentence, it inter alia took account of the fact that a long time had elapsed since the start of the proceedings during which the applicant had been in a state of uncertainty about the outcome.
9. On 10 February 2006 the applicant lodged an appeal in cassation with the Supreme Court (Hoge Raad). In so far as relevant to the present case, he complained, whilst invoking Article 6 of the Convention, that the Court of Appeal had wrongly rejected his claim that, due to the reasonable time having been exceeded, the prosecution’s case should have been declared inadmissible. He also complained that the reasonable time requirement had been violated in the cassation procedure. Moreover, he submitted that, even though the Court of Appeal had taken into consideration that the proceedings had taken a long time, it had provided insufficient reasoning for the sentence it imposed in that it had failed to indicate to what extent the long duration of the proceedings affected the sentence.
10. On 8 January 2008 the Supreme Court partially upheld the applicant’s appeal in cassation. It held that the cassation proceedings had exceeded the reasonable time within the meaning of Article 6 of the Convention and for this reason it reduced the applicant’s sentence to a fourteen-month prison term, of which four months and two weeks were suspended. The applicant’s remaining arguments were dismissed summarily for not raising any points of law. This decision was in conformity with the advisory opinion of the Advocate-General to the Supreme Court, who had noted in relation to the applicant’s claim that the case against him should have been declared inadmissible due to the reasonable time having been exceeded, that according to established Dutch case-law at the time (see Supreme Court 3 October 2000, Landelijk Jurisprudentie Nummer [National Jurisprudence Number] AA7309, published in Nederlandse Jurisprudentie [Netherlands Law Reports] 2001 no. 721,) it was only in very exceptional circumstances – which, in the view of the Advocate-General, did not pertain in the present case – that a violation of the reasonable time requirement could lead to the prosecution’s case being declared inadmissible.
COMPLAINT
11. The applicant complained under Article 6 § 1 of the Convention of a breach of the reasonable time requirement in respect of the proceedings as a whole as well as of the three separate stages of the proceedings, i.e. before the Regional Court, before the Court of Appeal and the appeal in cassation before the Supreme Court.
THE LAW
12. The applicant complained of a violation of the reasonable time requirement set out in Article 6 § 1, which, in so far as relevant, provides:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
13. The Government submitted, inter alia, that the applicant had not exhausted all domestic remedies since the grounds for his appeal in cassation did not concern the alleged breach of the reasonable time requirement.
14. The applicant argued that, even if he had not raised this question himself, the Supreme Court should pursuant to its own case-law have assessed ex officio whether the right to be tried within a reasonable time had been violated.
15. The Court reiterates that under Article 35 § 1 of the Convention it may only examine a matter once all domestic remedies have been exhausted. Every applicant must have given the domestic courts the opportunity which Article 35 § 1 is intended to afford in principle to member States, that of preventing or putting right the violations alleged against them. Thus a complaint intended to be submitted to the Court must first have been made, at least in substance, and in compliance with the formal requirements and time-limits laid down in domestic law, to the appropriate domestic courts (see Cardot v. France, 19 March 1991, Series A no. 200, § 36). Moreover, even where domestic courts are under a duty to consider matters of their own motion, this does not dispense applicants from raising before them the issue which they intend to submit subsequently, if need be, to the Court (see Ahmet Sadik v. Greece, 15 November 1996, § 33, Reports of Judgments and Decisions 1996-V, and Dalipi v. Greece (dec.), no. 51588/08, § 20, 26 June 2012).
16. The Court notes that in his appeal in cassation the applicant complained firstly, that the prosecution’s case had wrongly not been declared inadmissible, secondly, that the proceedings before the Supreme Court had exceeded a reasonable time, and thirdly, that the Court of Appeal had failed to indicate how the length of the proceedings had affected the sentence it imposed on him (see paragraph 9 above). Therefore, the applicant did not as such put to the Supreme Court the complaints – now before the Court – of the length of the proceedings as a whole or of the length of the proceedings before the Regional Court and before the Court of Appeal.
17. Therefore, these complaints must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
18. The Court further observes that the applicant did raise the matter of the length of the cassation proceedings with the Supreme Court. However, it finds that the applicant can no longer be considered a “victim” within the meaning of Article 34 of the Convention of this alleged violation since the Supreme Court acknowledged, and afforded adequate redress for, the breach of the Convention complained of (see paragraph 10 above; see Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; Amuur v. France, 25 June 1996, § 36, Reports 1996-III; and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI).
19. It follows that this complaint is incompatible ratione personae with the provisions of the Convention for the purposes of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Marialena TsirliAlvina Gyulumyan
Deputy RegistrarPresident
Full & Egal Universal Law Academy