AS TO THE ADMISSIBILITY OF
Application No. 10060/82
by François Albert Jules TABOIS
against the Netherlands
The European Commission of Human Rights sitting in private
on 3 September 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 August 1982
by François Albert Jules TABOIS against the Netherlands and registered
on 19 August 1982 under file No. 10060/82;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to:
- the Commission's decision of 6 March 1984 to bring the
application to the notice of the respondent Government and
invite them to submit written observations on its admissibility
and merits;
- the observations submitted by the respondent Government on
3 July 1984 and the observations in reply submitted by the
applicant on 10 September 1984;
- the Commission's decision of 15 March 1985 to adjourn its
examination of the application pending the outcome of the
domestic proceedings;
- the Commission's decision of 11 October 1990 to invite the
respondent Government to submit further observations
concerning the length of the whole criminal proceedings;
- the observations submitted by the respondent Government on
2 May 1991 and transmitted to the applicant on 16 May
for reply before 28 June 1991;
- the reminder sent to the applicant on 19 July 1991;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Dutch citizen, was born on 4 February 1948
and is presently residing in Schoorl, the Netherlands. In the
proceedings before the Commission he is represented by Mr A. van Driel,
a lawyer practising in Alkmaar.
The facts submitted by the parties may be summarised as
follows.
Until 1 May 1979 the applicant was a regional inspector for an
insurance company. In this function he committed certain fraudulous
acts, forging documents necessary to obtain mortgage-loans from the
applicant's company.
On 10 April 1979 the applicant was arrested; he was detained
on remand for a period of four days. Apparently, he immediately
confessed and offered to cooperate in the investigations to be carried
out by the police. The investigation involved 26 other suspects, some
of whom had themselves also been victims of the applicant's practices.
It appears that these investigations were concluded on 22 January
1980.
A group of the numerous victims of the applicant's practices,
headed by a local lawyer, tried to reach a settlement with their
mortgagers, the former applicant's company. The public prosecutor
considered the outcome of these efforts as relevant for the
prosecution.
In December 1980 the applicant offered to render "social
services" in order to enable his case to be closed, if only
conditionally. The public prosecutor considered it advisable to wait
for a report on this possibility, which then was in an experimental
stage and became operative only in February 1981. He rejected this
alternative in May 1981. The Government contend that the public
prosecutor acted on the basis of a background report on the applicant.
The applicant was summoned to appear in court on 11 July 1981.
The applicant's lawyer had, apparently, already received a copy of
the summons on 19 June 1981.
The applicant filed an objection against this summons on
1 July 1981 with the Regional Court (Rechtbank) of Alkmaar, claiming
that more than a reasonable time had passed since his arrest in April
1979 and invoking Article 6 para. 1 of the Convention.
On 16 July 1981 the Court rejected the applicant's objection,
holding, inter alia, that the period which had elapsed before the
applicant's case was brought before the Court, although longer than
generally desirable, did not exceed the reasonable time required by
Article 6 of the Convention.
The applicant appealed from the decision of 16 July 1987 to
the Court of Appeal (Gerechtshof) of Amsterdam but his appeal was
rejected on 30 October 1981. The Court of Appeal considered, inter
alia, that the "reasonable time" as required by Article 6 para. 1 of
the Convention had not been exceeded in view of the fact that the
applicant's case was highly complex and of a serious nature. In
addition, the damage done to third parties was taken into
consideration by the Court.
The applicant appealed from this decision to the Supreme Court
(Hoge Raad). In his opinion to the Supreme Court the Advocate General
submitted that the decision of the Court of Appeal ought to be quashed
since it did not deal with the particular circumstances which had
indeed made the delay unreasonably long. But the Supreme Court did
not follow the opinion of the Advocate General and rejected the appeal
on 9 March 1982.
On 14 August 1982 the applicant applied to the European
Commission of Human Rights claiming that the summons on 11 July 1981
was in violation of Article 6 para. 1 of the Convention.
His objection to the original summons having been rejected in
three instances, a new summons was issued to the applicant on 19 August
1982 ordering him to appear in court on 21 September 1982.
The applicant, again, filed an objection against the summons
with the Regional Court of Alkmaar, arguing, inter alia, that the
case should not be brought before the Dutch courts before the
Commission had considered his complaint under Article 6 para. 1.
However, the Regional Court declared the applicant's objection
inadmissible on 5 October 1982. It held that by the Supreme Court's
rejection of the applicant's original objection against the decision
to commit him for trial that decision had become final. The Court did
not consider the pending application to the Commission to be a remedy
in the sense of the Dutch Penal Code giving suspensive effect to the
Supreme Court's decision of 9 March 1982.
The applicant appealed to the Court of Appeal of Amsterdam
which confirmed the Regional Court's decision on 31 December 1982.
The applicant appealed from this decision to the Supreme Court, but
did not make any submissions before this Court. The appeal was
rejected on 21 June 1983.
The applicant was, again, summoned, on 12 July 1984, to appear
before the Regional Court of Alkmaar on 21 August 1984.
Thereupon, the applicant requested the President of the
Regional Court of the Hague in summary proceedings (kort geding) to
either terminate or suspend the criminal proceedings against him,
pending the Commission's examination of his case. However, his
request was refused on 14 August 1984.
In the meantime, by a telex of 7 August 1984, the applicant
requested the Commission to apply Rule 36 of the Rules of Procedure
and to invite the Netherlands Government to suspend criminal
proceedings against him until the Commission would have decided on the
admissibility of the application.
On 9 August 1984 the applicant was informed that the Acting
President of the Commission had decided that the application was not
of a nature as to warrant application of Rule 36 of the Commission's
Rules of Procedure. He was also reminded that applications to the
Commission do not have any general suspensive effect with regard to
domestic proceedings.
On 21 August 1984 the Regional Court of Alkmaar, by an
interlocutory decision, rejected the applicant's request either to
declare the public prosecutor's action inadmissible or to suspend the
proceedings pending the Commission's examination of his case.
It then convicted the applicant of forgery under Article 225
of the Dutch Penal Code, which provides for a maximum penalty of six
years. The Regional Court sentenced him to a conditional prison term
of one year. In fixing this sentence it took into account the
considerable delay between the arrest of the applicant and his trial,
without establishing, however, who was responsible for this delay.
The Court also had regard to detrimental effects of the applicant's
action on his personal and social life.
As to the applicant's request to have the public prosecutor's
action declared inadmissible, the Regional Court first stated that the
Supreme Court's judgment of 9 March 1982 was the final decision on the
question of the length of the proceedings until that date so that it
could not examine the applicant's complaints about this period. The
Regional Court then held that the applicant's complaints about the
period between that decision and the summons of the public prosecutor
of 19 August 1982 could not be examined again since the Supreme Court
had given a final decision on this point on 21 June 1983. The Regional
Court finally examined the period between that last decision and the
summons of 12 July 1984. It considered that the public prosecutor had
given a satisfactory explanation and that this delay, though long, was
not unreasonable. The public prosecutor had first adjourned the case
after he had been informed that the Commission could shortly deal with
the present application. He had therefore asked the applicant's
lawyer to provide further information on the proceedings before the
Commission. In the meantime an investigation had started about new
criminal offences of which the applicant was suspected. The public
prosecutor had expected to be able to join both proceedings, but some
administrative delay had prevented him from doing so within a
reasonable time.
The public prosecutor appealed against the judgment of the
Regional Court. The applicant, thereupon, also appealed, in
particular against the Court's interlocutory decision.
On 1 July 1986 the Court of Appeal of Amsterdam found the
applicant guilty on most counts stated in the charges of the public
prosecutor. The applicant was sentenced to one year's imprisonment of
which a term of nine months was suspended. In fixing this sentence the
Court of Appeal took into account the considerable delay between the
arrest of the applicant and his trial. It also noted that the public
prosecutor's action against the applicant's co-accused had been
declared inadmissible (niet-ontvankelijk-verklaring van de Officier
van Justitie). On the other hand, the Court observed that the
fraudulous acts had been committed on a large scale. It also observed
that the applicant had been convicted twice in 1985 for other criminal
offences and that he had been convicted on the same day on charges of
forgery and cheque manipulations committed in 1983.
As to the applicant's request to have the public prosecutor's
action declared inadmissible the Court of Appeal considered that the
beginning of the period to be taken into consideration was the Supreme
Court's decision of 21 June 1983 wereby the applicant's objection
against this summons was, for the second time, rejected. It noted
that, after this last decision, the applicant was not again summoned
until 12 July 1984. It found that the applicant had repeatedly asked
the public prosecutor to postpone the examination of the criminal case
pending the decision of the European Commission of Human Rights. The
public prosecutor could not therefore be blamed for this period. The
Court of Appeal also noted that a long period had elapsed between the
appeal and its decision. It found that this period, although longer
than generally desirable, did not exceed the reasonable time required
by Article 6 of the Convention, given the seriousness of the offences
and the complexity of the facts. It further held that the length of
the proceedings was for the most part due to the applicant who had
repeatedly appealed during the proceedings or asked for postponements
of the hearings.
The applicant appealed against this decision, arguing, inter
alia, that the public prosecutor's action was inadmissible and that
the Dutch courts should have suspended the proceedings pending the
Commission's examination of his case.
On 22 September 1987 the Supreme Court rejected the
applicant's appeal, considering that the judgment of the Court of
Appeal was not unreasonable.
COMPLAINTS
The applicant complains that it took more than two years
and three months after he had been informed of criminal charges
against him until the public prosecution decided to take his case
to court. He claims that this period exceeds the "reasonable time"
guaranteed by Article 6 para. 1 of the Convention.
He submits that neither the complexity of the case, nor his
own behaviour, or that of his lawyer, justified the delay that
occurred. Moreover, as a result of the criminal charges against him he
lost his job as an insurance inspector, became the victim of a local
press campaign, and incurred severe financial losses. Since no
further action was taken against him for a considerable time after his
initial arrest, he was entitled to believe that either his case would
be discontinued unconditionally or on the condition of his rendering
certain social services, as he offered to do through the General
Rehabilitation Association (Algemene Reclasserings Vereniging). In
the meantime, he succeeded in finding a new, albeit much more modest,
employment. He feared that as a result of a public trial he would
lose his newly acquired position, irrespective of the outcome of the
trial.
In his observations in reply submitted on 10 September 1984,
the applicant also complains that, after the judgment of the Supreme
Court on 9 March 1982, he was not summoned to appear before the
Regional Court until 19 August 1982. Likewise, after the second
decision by the Supreme Court on 21 June 1983, he was not summoned
again until 12 July 1984.
The applicant finally complains that his trial took place
before the Commission had an opportunity to examine his application.
This interfered with his rights under Article 6 para. 3 (b) of the
Convention. He submits that "adequate time and facilities for the
preparation of his defence" include the opportunity to pursue an
application to the Commission without having to prepare a defence in
the criminal proceedings that he is complaining about.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 August 1982 and
registered on 19 August 1982.
The Commission decided on 6 March 1984 to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on the applicant's complaint under
Article 6 para. 1 of the Convention concerning the delays which
occurred during the preliminary investigations.
The Government's observations were received on 6 July 1984,
and the applicant's observations in reply on 14 September 1984.
In the meantime, by a telex of 7 August 1984, the applicant
requested the Commission to apply Rule 36 of the Rules of Procedure
and to invite the Netherlands Government to suspend criminal
proceedings against him until the admissibility of the application had
been determined by the Commission
On 9 August 1984 the applicant was informed that the Acting
President of the Commission had decided that the application was not
of a nature as to warrant application of Rule 36 of the Commission's
Rules of Procedure. He was also reminded that application to the
Commission do not have any general suspensive effect with regard to
domestic proceedings.
The Commission considered the possibility that in their
decision on the charges the national courts would take account of the
length of the proceedings and therefore decided on 15 March 1985 to
adjourn its examination pending the outcome of the domestic
proceedings. On 20 March 1985 the parties were informed of this
decision.
Documents concerning the domestic proceedings were received
on 2 April 1987, and on 16 March, 6 April and 4 July 1989.
On 11 October 1990, the Commission decided to invite the
respondent Government to submit further observations concerning the
length of the criminal proceedings as a whole.
The Government's observations were received on 2 May 1991 and
transmitted to the applicant on 16 May for reply before 28 June 1991.
A reminder was sent to the applicant on 19 July 1991.
THE LAW
The applicant complains that it took more than two years and
three months after he had been informed of criminal charges against
him before the public prosecution decided to take his case to court.
He claims that this period exceeds the "reasonable time" guaranteed by
Article 6 para. 1 (Art. 6-1) of the Convention, which provides :
"In the determination of ... any criminal charge against him,
everyone is entitled to a fair and public hearing within a
reasonable time...".
In order to assess the reasonableness of the length of the
proceedings the Commission must first ascertain both the commencement
and the end of the period to be taken into account. It considers that
the applicant's right to a hearing within a reasonable time came into
being on 10 April 1979 when he was arrested and therefore
substantially affected as a result of the suspicion against him (cf.
Eur. Court H.R., Corigliano judgment of 10 December 1982, Series A no.
57, p. 13 para. 34). The Commission recalls that the period to be
taken into consideration lasts until acquittal or until the sentence
is definitely fixed (cf. Eur. Court H.R., Eckle judgment of 15 July
1982, Series A no. 51, p. 34 paras. 76, 77). The period at issue thus
ended on 22 September 1987 when the Supreme Court dismissed the
applicant's last appeal.
It follows that the period to be examined under Article 6
para. 1 (Art. 6-1) of the Convention lasted 8 years 5 months and 12 days.
The Government submit that the applicant cannot claim to be a
victim of a violation of Article 6 para. 1 (Art. 6-1), within the
meaning of Article 25 of the Convention. They refer to the Van
Droogenbroeck case (Eur. Court H.R., Van Droogenbroeck judgment of
24 June 1982, Series A no. 50), the Eckle case (Eur. Court H.R.,
Eckle judgment, loc. cit.) and the Commission's case law (cf.
Pannetier v. Switzerland, Comm. Report 12.7.85, D.R. 46, p. 5). The
Government recall that both the Regional Court that heard the case at
first instance and the Court of Appeal took into account the delay
which had occurred between the applicant's arrest and his conviction.
In view of this delay, the Regional Court sentenced the applicant to a
conditional prison term of one year and the Court of Appeal sentenced
him to one year's imprisonment of which a term of nine months was
suspended, while the offences charged, forgery, could lead to a
sentence of six years' imprisonment.
The Commission has examined whether the applicant can still
claim to be a victim of a violation within the meaning of Article 25
(Art. 25) of the Convention after the Dutch courts have considered as a
mitigating factor the length of the time which had elapsed between the
day when the applicant was arrested and his convictions. However, the
Commission does not find it necessary to determine this question since
the application must be rejected as manifestly ill-founded on another
ground.
According to the case-law of the Convention organs, the
reasonableness of the length of the proceedings has to be assessed in
each case according to its particular circumstances and having regard
in particular to the complexity of the case and the conduct of the
applicant and the judicial authorities (see Eur. Court H.R.,
Corigliano judgment of 10 December 1982, Series A no. 57, p. 14 para.
37).
As to the complexity of the case, the Commission notes that
the applicant was charged with fraud in what appears to be a
relatively complicated case concerning mortgages, involving numerous
victims and 26 co-suspects, some of whom had themselves also been
victims of the applicant's practices.
As to the conduct of the applicant, the Commission first notes
that the applicant objected each time he was summoned to appear in
court. It recalls that whereas Article 6 (Art. 6) does not require an
applicant to co-operate actively with the judicial authorities and
whereas no reproach can be levelled against an applicant who has made
full use of the remedies available under national law, the applicant
nevertheless is responsible for certain delays, which cannot be
attributed to the respondent State (cf. No. 4597/71, Huber v. Austria,
Comm. Rep. 8.2.73, para. 111, D.R. 2 p. 45; No. 8435/78, Dec. 6.3.82,
D.R. 26, pp. 18, 20).
The Commission also recalls that the applicant has throughout
the national proceedings asked the courts to suspend the criminal
proceedings pending the Commission's examination of his case.
Moreover, by a telex of 7 August 1984, he requested the President of
the Commission to apply Rule 36 of the Rules of Procedure and to
invite the Netherlands to suspend the criminal proceedings against him
until the admissibility of the present application had been determined
by the Commission. Furthermore, the Court of Appeal of Amsterdam
noted that the applicant had repeatedly asked to postpone the
hearings.
The Commission therefore considers that the applicant's
conduct caused long delays in the proceedings.
As to the conduct of the judicial authorities, the Commission
notes that the applicant alleges that three undue delays have occurred
during the proceedings:
a. The applicant first complains that it took more than two years
and three months after his arrest on 10 April 1979 until the public
prosecution decided to take his case to court.
The Commission considers that the manner in which the judicial
authorities conducted the case during the preliminary investigations
cannot be considered as being unjustified. As already indicated
above, the case was relatively complicated. The Commission further
observes that the public prosecutor appears to have awaited the
results of a possible settlement acceptable to all those involved in
the fraud before he brought charges. The authorities also had to
decide about the applicant's proposal of December 1980 to undergo a
period of community service, on the basis of a new Community Service
Experiment which became operative only in February 1981. In view of
the above, the Commission considers that the length of the period
between the applicant's arrest and the summons of 11 July 1981 was not
unreasonable.
b. The applicant then submits that, after the judgment of the
Supreme Court of 9 March 1982, he was not summoned to appear before
the Regional Court until 19 August 1982.
The Commission considers that this delay is not in itself
unreasonable. It further observes that the applicant never complained
about the length of this period before the Dutch courts. On the
contrary, he argued that after the judgment of 9 March 1982, the case
should not have been brought before the criminal courts before the
Commission had considered the present application introduced on 14
August 1982. Accordingly, the Commission is of the opinion that this
delay cannot be considered as being unjustified.
c. The applicant finally submits that, after the judgment of the
Supreme Court of 21 June 1983, he was not again summoned until 12 July
1984.
The Commission finds that this is a lengthy period and
that such a period cannot normally be regarded as reasonable, unless
it is justified by some special feature.
The Regional Court of Alkmaar considered that this delay,
though long, was not unreasonable; the Public Prosecutor had given a
satisfactory explanation. He had first adjourned the case after he
had been informed that the Commission could shortly deal with the
present application. He therefore asked the applicant's lawyer to
provide further information on the proceedings before the Commission.
In the meantime an investigation had started about new criminal
offences of which the applicant was suspected. The public prosecutor
had expected to be able to join both proceedings, but some
administrative delays had prevented him from doing so within a
short time. The Court of Appeal of Amsterdam added that the
applicant had repeatedly asked the public prosecutor to postpone the
examination of the criminal case against him pending the decision of
the Commission.
In view of the specific reasons given by the Dutch courts, the
Commission is of the opinion that this period was not in itself
unreasonably long.
The Commission finally finds that the overall length of the
proceedings (almost eight and a half years) is indeed a long period.
However, in view of the above-mentioned circumstances, it considers
that this length is for the most part due to the applicant's conduct
and the complexity of the case. Even if some delays are attributable
to the judicial authorities, they are not so long as to warrant the
conclusion that the total duration of the proceedings was excessive,
having regard to all the circumstances of the case.
The Commission therefore concludes that the length of the
criminal proceedings against the applicant did not exceed a reasonable
time as required by Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant has also complained that, since he was brought
before the court before the Commission had examined his present
application, he did not have adequate facilities for the preparation
of his defence. He has invoked Article 6 para. 3 (b) (Art. 6-3-b) of the
Convention, which provides:
"3. Everyone charged with a criminal offence has the
following minimum rights:
(...)
(b) to have adequate time and facilities for the
preparation of his defence;
(...)"
The Commission recalls that proceedings before it do not carry
any suspensive effect with regard to domestic proceedings. Moreover,
the Commission finds that the applicant has failed to substantiate his
allegations that the facilities for his defence were inadequate
because he was tried by the domestic tribunals before the Commission
had dealt with his complaints.
It follows that this part of the application is also 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.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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