EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 15243/89
V.A.A.
against
the NETHERLANDS
REPORT OF THE COMMISSION
(adopted on 8 January 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-20). . . . . . . . . . . . . . . . . . . . . . . 3
III. OPINION OF THE COMMISSION
(paras. 21-39) . . . . . . . . . . . . . . . . . . . . . 4-6
A. Complaint declared admissible (para. 21). . . . . . 4
B. Point at issue (para. 22) . . . . . . . . . . . . . 4
C. General considerations
(paras. 23-24). . . . . . . . . . . . . . . . . . . 4
D. Determination of the length of the proceedings
(paras. 25-26). . . . . . . . . . . . . . . . . . . 4
E. Assessment of the reasonableness of the length
of proceedings (paras. 27-38) . . . . . . . . . . . 4
F. Conclusion (para. 39) . . . . . . . . . . . . . . . 6
Dissenting opinion of Mr. H. DANELIUS, joined
by MM. A. WEITZEL and L. LOUCAIDES. . . . . . . . . . . . . . . . . 7
APPENDIX I : HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . 8
APPENDIX II : DECISION ON THE ADMISSIBILITY . . . . . . . . . . 9
I. INTRODUCTION
1 The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2 The applicant, of Turkish and Cypriot nationality, was born in
1955. He is at present detained in Amsterdam, the Netherlands. Before
the Commission he is represented by Mr. H.F.M. Struycken, a lawyer
practising in Amsterdam.
3 The application is directed against the Netherlands. The
Government are represented by their Agent, Mr. Karel de Vey Mestdagh,
of the Netherlands Ministry of Foreign Affairs.
4 The applicant complains under Article 6 para. 1 of the Convention
of the length of criminal proceedings against him. The proceedings
began with his arrest on 16 October 1986 and ended with the Supreme
Court's rejection of his appeal on 14 March 1989.
B. The proceedings
5 The application was introduced on 3 April 1989 and registered on
20 July 1989 under file No. 15243/89.
6 On 5 November 1990 the Commission decided to give notice of the
application to the respondent Government, inviting them to submit their
observations in writing on the admissibility and merits of the
application, inter alia, on the complaint under Article 6 para. 1 of
the Convention concerning the length of the criminal proceedings.
7 The Government presented their observations on 28 March 1991.
The applicant's observations in reply were submitted on 10 June 1991.
The applicant was granted free legal aid on 18 October 1991.
8 On 11 May 1992 the Commission declared the application admissible
as to the complaint of undue length of the criminal proceedings and
inadmissible as to the remainder. The Commission also decided to refer
the case to the Second Chamber.
9 At the Commission's request the parties submitted additional
factual information - the applicant on 11 June 1992 and the Government
on 25 June 1992.
10 After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed itself
at the disposal of the parties with a view to securing a friendly
settlement of the case. In the light of the parties' reactions the
Commission finds that there is no basis on which a friendly settlement
can be effected.
C. The present Report
11 The present Report has been drawn up by the Commission (Second
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, 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
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
12 The text of the Report was adopted by the Commission on
8 January 1993 and is now transmitted to the Committee of Ministers in
accordance with Article 31 para. 2 of the Convention.
13 The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
(1) to establish the facts, and
(2) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
14 A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application forms Appendix II.
15 The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
16 On 16 October 1986 the applicant was arrested on suspicion of
having committed certain drug offences contrary to the Dutch Opium Act
(Opiumwet) and subsequently detained on remand. By summons of
15 January 1987 the applicant was ordered to appear before the Regional
Court (Arrondissementsrechtbank) of Amsterdam.
17 By judgment of 25 March 1987 the Regional Court convicted the
applicant of intentional importation of heroin into the Netherlands and
sentenced him to six years' imprisonment with deduction of the time
spent in pre-trial detention.
18 The applicant appealed to the Court of Appeal (Gerechtshof) of
Amsterdam. By judgment of 10 November 1987 the Court of Appeal upheld
the Regional Court's conviction, yet increased the sentence by one year
to seven years' imprisonment with deduction of the time spent in pre-
trial detention.
19 The applicant's subsequent appeal in cassation of
10 November 1987 to the Supreme Court (Hoge Raad) was heard on
29 November 1988, and rejected by judgment of 14 March 1989. The Court
noted the applicant's complaint under Article 6 para. 1 of the
Convention that an undue delay had been caused as, despite several
reminders by his lawyer, the written version of the judgment of
10 November 1987 had not been sent to the Supreme Court until
5 July 1988. The Court held that, although the Court of Appeal had
considerably exceeded the time-limit fixed in Article 433 para. 3 of
the Code of Criminal Procedure (Wetboek van Strafvordering), the period
between 10 November 1987 and 5 July 1988 was still "reasonable" within
the meaning of Article 6 para. 1 of the Convention.
20 Under Article 433 para. 3 of the Code of Criminal Procedure, as
in force at the relevant time, the case-file should have been sent to
the Supreme Court within a maximum of 54 days from the day of the
judgment of the Court of Appeal. This provision has since been
amended. The new version, in force since 1 May 1992, no longer
contains a time-limit but stipulates that the case-file shall be
forwarded "as soon as possible".
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
21 The Commission has declared admissible the applicant's complaint
under Article 6 para. 1 (Art. 6-1) of the Convention concerning the
length of the criminal proceedings against him.
B. Point at issue
22 The point at issue is accordingly whether there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
C. General considerations
23 Article 6 para. 1 (Art. 6-1) of the Convention stipulates:
"In the determination of ... any criminal charge against
him, everyone is entitled to a ... hearing within a
reasonable time by a ... tribunal established by law."
24 The three criteria established by the case-law of the European
Commission and Court of Human Rights for assessing whether or not the
length of proceedings has been reasonable are the complexity of the
case, the conduct of the applicant and the conduct of the relevant
authorities (see Eur. Court H.R., Vernillo judgment of
20 February 1991, Series A no. 198, para. 30).
D. Determination of the length of the proceedings
25 The proceedings at issue began on 16 October 1986, when the
applicant was arrested, and ended with the Supreme Court's decision of
14 March 1989, rejecting the applicant's appeal in cassation.
26 The total length of proceedings thus comes to almost 2 years and
5 months.
E. Assessment of the reasonableness of the length of proceedings
27 The Government maintain that the total length of the proceedings
at issue, which were conducted before three judicial bodies and lasted
almost 2 years and 5 months, cannot be deemed unreasonably long within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. The
Supreme Court considered that the time-limit contained in Article 433
para. 3 was no strict rule but a mere guideline. The amendment of
Article 433 para. 3 as from 1 May 1992 met with no objection, either
from the legal profession or from Parliament.
28 The applicant submits that the judgment of the Court of Appeal
of 10 November 1987 was first notified in writing to his lawyer on
12 September 1988 by the Registrar of the Supreme Court, despite
several requests by the lawyer to be provided with the written
judgment, whereas the date of the hearing before the Supreme Court,
i.e. 29 November 1988, was the deadline for submitting the cassation
plea.
29 The Commission notes that the facts in the present case were not
very complex.
30 The applicant did make use of the remedies available to him, but
there can be no objection to an accused in criminal proceedings making
use of the ordinary remedies available to him under domestic law.
31 As to the conduct of the judicial authorities, the Commission
notes that the investigation lasted from the applicant's arrest on
16 October 1986 until 15 January 1987, the date of his summons to
appear before the Regional Court of Amsterdam.
32 The proceedings at first instance covered the period from
15 January 1987, the date of his summons, to the date of the judgment
of the Regional Court of Amsterdam of 25 March 1987.
33 The appeal proceedings lasted until 10 November 1987, when the
Court of Appeal of Amsterdam upheld the judgment of the Regional Court.
34 On 10 November 1987 the applicant introduced an appeal in
cassation to the Supreme Court. The case-file was sent to the Supreme
Court on 5 July 1988. By judgment of 14 March 1989 the Supreme Court
dismissed the applicant's plea of nullity. The judgment of
10 November 1987 by the Court of Appeal of Amsterdam thereupon became
final and the applicant's sentence enforceable.
35 The Commission notes in particular the period between the Court
of Appeal's judgment of 10 November 1987 and the judgment of the
Supreme Court of 14 March 1989. The Commission further notes that,
after the applicant, who was detained pending the proceedings against
him, had filed his appeal to the Supreme Court on 10 November 1987, the
documents of the case were not sent to the Supreme Court until
5 July 1988 - almost eight months after the judgment had been delivered
by the Court of Appeal, whereas under Article 433 para. 3 of the Dutch
Code of Criminal Procedure, as then in force, the documents should have
been sent within a maximum of 54 days from the date of the challenged
judgment. The Government have not provided any explanation on the
reasons for this delay in the transmission of the documents.
36 The Commission recalls that what was at stake for the applicant
must be taken into account in assessing the reasonableness of the
length of proceedings and that persons held in detention pending trial
are entitled to "special diligence" on the part of the competent
authorities (Eur. Court H.R., Abdoella judgment of 25 November 1992,
Series A no. 248-A, para. 24).
37 The Commission considers that the present case can be
distinguished from the Abdoella case as regards both the periods of the
transmission of the documents to the Supreme Court (two periods of ten
and eleven and a half months respectively, i.e. altogether, more than
twenty-one months, in the Abdoella case and almost eight months in the
present case) and the total length of the proceedings (fifty-two months
in the Abdoella case and almost twenty-nine months in the present
case).
38 The Commission, noting that the present case was examined by
three different courts and that the total length of the criminal
proceedings against the applicant lasted slightly less than two years
and five months, considers that the delay that occurred does not
justify the conclusion that the total length of the proceedings was
excessive.
F. Conclusion
39 The Commission concludes by six votes to three that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Dissenting opinion of Mr. H. DANELIUS,
joined by MM. A. WEITZEL and L. LOUCAIDES
Although the total duration of the proceedings in the present
case was not particularly long, there was one period which, in my view,
creates special problems as far as the "reasonable time" requirement
in Article 6 para. 1 of the Convention is concerned. Indeed, I find
it a striking feature of the case that, after the applicant had
appealed on 10 November 1987 against the judgment of the Court of
Appeal, that Court did not transmit the case-file to the Supreme Court
until eight months later, on 5 July 1988.
The explanation for this delay has been provided by the
Government which in their observations state that, at the time when the
Court of Appeal gave its judgment, only an abbreviated written judgment
was available and that this judgment was not transformed into a full
judgment until after the appeal had been lodged. It further appears
from the Government's observations that this is not an unusual
procedure in the Netherlands and that, when it is applied, a
considerable time may be needed before a case-file can be transmitted
from a Court of Appeal to the Supreme Court.
I note that the European Court of Human Rights was faced with a
similar problem in the Abdoella case (Eur. Court H.R., judgment of
25 November 1992, vol. 248-A) where, however, both the total duration
of the proceedings and the time which elapsed before the case-file was
forwarded to the Supreme Court were considerably longer than in the
present case.
Nevertheless, I consider that a State is obliged under
Article 6 para. 1 of the Convention to organise its judicial system so
that, where an appeal is lodged to a higher court, the lower court is
able, within a very short time, to forward the case-file to the higher
court so as to permit it to start examining the appeal. A practice
under which, after an appeal has been lodged, it remains for the court
to draft the full judgment which is the subject of the appeal would not
seem to be in conformity with the requirements of Article 6 of the
Convention, at least not if it considerably delays the examination by
the higher court. Such a practice also appears unsatisfactory from
another point of view, as knowledge about the full contents of a
judgment would normally seem to be an essential element in the
consideration of whether or not an appeal should be lodged against that
judgment.
I cannot find, therefore, that in the present case the Government
have provided any justification for the period of eight months which
elapsed from the lodging of the applicant's appeal on 10 November 1987
to the transmission of the case-file to the Supreme Court on
5 July 1988. Consequently, I consider that the "reasonable time"
requirement in Article 6 para. 1 of the Convention has not been
respected.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
_______________________________________________________________________
3 April 1989 Introduction of application
20 July 1989 Registration of application
(a) Examination of admissibility
5 November 1990 Commission's decision to
invite the Government to
submit their observations on
the admissibility and merits
of the application.
28 March 1991 Government's observations
10 June 1991 Applicant's observations in
reply
18 October 1991 Legal aid granted
11 May 1992 Commission's decision to
declare the applicant's
complaint under Article 6
para. 1 of the Convention
concerning the length
of the proceedings
admissible, to declare
the remainder of the
application inadmissible and
to refer the application to
the Second Chamber
(b) Examination of the merits
26 May 1992 Parties invited to submit
further observations on the
merits before 25 June 1992
11 June 1992 Applicant's further
observations
25 June 1992 Government's further
observations
8 January 1993 Commission's deliberations
on the merits, final vote
and adoption of the Report
Full & Egal Universal Law Academy