TJIN-A-KWI AND VAN DEN HEUVEL v. THE NETHERLANDS



                      AS TO THE ADMISSIBILITY OF

                      Application No. 17297/90

                      by Genaro Alberto TJIN-A-KWI,

                      Rudsel Christiaan TJIN-A-KWI and

                      Jasper Ronald VAN DEN HEUVEL

                      against the Netherlands

      The European Commission of Human Rights (Second Chamber) sitting

in private on 31 March 1993, the following members being present:

                 MM.  S. TRECHSEL, President of the Second Chamber

                      G. JÖRUNDSSON

                      A. WEITZEL

                      J.-C. SOYER

                      H.G. SCHERMERS

                      H. DANELIUS

                 Mrs. G.H. THUNE

                 MM.  F. MARTINEZ

                      M. NOWICKI

                 Mr.  K. ROGGE, Secretary to the Second 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 22 August 1990 by

Genaro Alberto TJIN-A-KWI, Rudsel Christiaan TJIN-A-KWI and Jasper

Ronald VAN DEN HEUVEL against the Netherlands and registered on 15

October 1990 under file No. 17297/90;

      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 applicants are Dutch citizens, born in 1971, 1973 and 1970

respectively.  At the time of the introduction of the application, they

were detained in Breda, the Netherlands.  Before the Commission they

are represented by Mr. A. Goedkoop, a lawyer practising at Breda.

      The facts of the case as submitted by the applicants may be

summmarised as follows.

      The first applicant was arrested on 5 March 1990 on suspicion of

robbery or of being an accessory thereto.  He was taken into custody

(inverzekeringstelling) in Breda.  He denied all charges.  By decision

of 8 March 1990 the Investigating Judge (Rechter-Commissaris) ordered

the applicant's detention on remand (bewaring) for six days and by

decision of 14 March 1990 he prolonged the detention on remand.  On 16

March 1990 the Public Prosecutor (Officier van Justitie) requested the

Breda Regional Court (Arrondissementsrechtbank) to order the

applicant's further detention on remand (gevangenhouding) for thirty

days.  By decision of 20 March 1990 the Regional Court granted this

request.  The applicant immediately filed an appeal against this

decision with the Court of Appeal (Gerechtshof) of 's-Hertogenbosch.

The hearing took place on 20 April 1990.

      Following the Public Prosecutor's request of 13 April 1990

thereto, the Regional Court prolonged the applicant's further detention

on remand on 17 April 1990.  It ordered a second prolongation on 15 May

1990 pursuant to the Public Prosecutor's request of 11 May 1990.

      The second applicant was arrested on 5 March 1990 on suspicion

of robbery or of being an accessory thereto.  He was taken into custody

in Breda.  He denied all charges.  By decision of 8 March 1990 the

Investigating Judge ordered the applicant's detention on remand.  On

9 March 1990 the Public Prosecutor requested the Breda Regional Court

to order the applicant's further detention on remand.  By decision of

13 March 1990 the Regional Court granted this request and on 12 April

1990 it prolonged the further detention on remand.

      The second applicant appealed to the Court of Appeal of

's-Hertogenbosch against the Regional Court's decision of 12 April

1990.  The hearing before the Court of Appeal was scheduled for 11 May

1990.  However, as the main criminal proceedings before the Breda

Regional Court started on 17 May 1990, the second applicant withdrew

his appeal.

      The third applicant was arrested on 4 March 1990 on suspicion of,

inter alia, robbery.  He was taken into custody in Breda.  He partly

confessed the offences he was suspected of having committed.  By

decision of 7 March 1990 the Investigating Judge ordered the

applicant's detention on remand and prolonged it on 12 March 1990.  On

9 March 1990 the Public Prosecutor requested the Breda Regional Court

to order the applicant's further detention on remand.  By decision of

13 March 1990 the Regional Court granted this request and on 10 April

1990 it prolonged this detention.

      The third applicant appealed to the Court of Appeal of

's-Hertogenbosch against the Regional Court's decision of 10 April

1990.  The hearing before the Court of Appeal was scheduled for 18 May

1990.  However, as the main criminal proceedings before the Regional

Court started on 30 May 1990, the third applicant withdrew his appeal.

COMPLAINTS

      The applicants complain that the lawfulness of their further

detention on remand was not speedily reviewed since the Court of Appeal

of 's-Hertogenbosch scheduled the hearing of their respective appeals

thirty, twenty-nine and thirty-eight days respectively after the

respective detention orders.  They invoke Article 5 para. 4 of the

Convention.

THE LAW

      The applicants complain that the lawfulness of their further

detention on remand was not speedily reviewed since the Court of Appeal

of 's-Hertogenbosch scheduled the hearing of their respective appeals

thirty, twenty-nine and thirty-eight days respectively after the

respective detention orders.  They invoke Article 5 para. 4 (Art. 5-4)

of the Convention which provides as follows:

      "Everyone who is deprived of his liberty by arrest or

      detention shall be entitled to take proceedings by which

      the lawfulness of his detention shall be decided speedily

      by a court and his release ordered if the detention is not

      lawful."

      The Commission first observes that the right of judicial review

guaranteed by Article 5 para. 4 (Art. 5-4) is intended to avoid

arbitrary deprivation of liberty.  This implies not only that the

competent courts must decide "speedily", but also that their decisions

must follow at reasonable intervals (see e.g. Eur. Court H.R.,

Herczegfalvy judgment of 24 September 1992, Series A no. 242-B,

para.75).  However, the Commission has already found that if the

detention is confirmed by a court it must be considered to be lawful

and not arbitrary, even where appeal is available.  It further found

that subsequent proceedings are not concerned with arbitrariness, but

provide additional guarantees aimed primarily at evaluation of the

appropriateness of continuing the detention (Navarra v. France, Comm.

Report 9.9.92, para. 44).

      In the present case the Breda Regional Court, which ordered the

three applicants' further detention on remand and the prolongation

thereof, is a court within the meaning of Article 5 para. 4 (Art. 5-4).

When ordering the applicants' further detention on remand, this court

confirmed their detention thereby reviewing its lawfulness.   The

subsequent appeal to the Court of Appeal merely constituted an

additional guarantee in order to verify whether continuation of the

detention was necessary.  The Commission therefore takes the view that

the time taken by the Court of Appeal to decide on the applicants'

appeal raises no issue under Article 5 para. 4 (Art. 5-4) of the

Convention.

      It follows that the application is 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 Second Chamber   President of the Second Chamber

         (K. ROGGE)                      (S. TRECHSEL)

 

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