AS TO THE ADMISSIBILITY OF
Application No. 17669/91
by Richard Johannes Joseph VAN LAAK
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 30 October 1990
by Richard Johannes Joseph VAN LAAK against the Netherlands and
registered on 14 January 1991 under file No. 17669/91;
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, born in 1952, is a Dutch citizen residing at
Escharen, the Netherlands. Before the Commission he is represented by
Mr. Th.J.H.M. Linssen and Mr. E. Beele, both lawyers practising in
Tilburg.
The facts as submitted by the applicant may be summarised as
follows.
On 27 August 1984 the applicant was summoned to appear before the
Regional Court (Arrondissementsrechtbank) of The Hague on charges of
several fraud offences. On 25 September 1984 the Regional Court
convicted the applicant of these offences and sentenced him to two
years and six months' imprisonment. The applicant appealed to the
Court of Appeal (Gerechtshof) of The Hague within the statutory time-
limit of 14 days. In November 1987 he was summoned to appear before
the Court of Appeal on 17 December 1987. The applicant, who was
hospitalised, could not attend the hearing and the Court of Appeal
stayed the proceedings for an indefinite period.
By letter of 26 January 1988 the applicant's representative
informed the Advocate-General (Advocaat-Generaal) that the applicant
had been discharged from hospital. On 3 August 1988 the applicant was
notified that a new hearing was fixed for 10 October 1988. At the
hearing the applicant's representative requested the Court of Appeal
to declare the prosecution inadmissible in view of the period of 4
years that had elapsed between filing the appeal towards the end of
September 1984 and the hearing on 10 October 1988, this delay being so
excessive that a reduction of the sentence would not suffice. The
applicant had deducted the period of hospitalisation and subsequent
recovery from half November 1987 until May 1988 considering that it
could not be attributed either to the Public Prosecution or to himself.
On 24 October 1988 the Court of Appeal upheld the applicant's
conviction but reduced the sentence to eight months' imprisonment of
which four months were suspended on probation. It found that the
Regional Court had not drawn up its judgment pending the outcome of the
criminal proceedings instituted against one of the co-suspects, that
it appeared from the file that the case was complicated and thus time-
consuming and that in addition the President of the Regional Court had
not been able to work for one year due to illness. It further found
a delay of one year between filing an appeal and the hearing acceptable
and that in cases involving several suspects, some of whom had delayed
the proceedings, an additional delay of one year could also be
accepted. However, the Court of Appeal found that, having regard to
all the circumstances of the case, the total delay, albeit exceeding
the acceptable period of two years, was not such as to exclude
prosecution and that a substantial reduction of the sentence would
therefore suffice.
On 1 May 1990 the Supreme Court (Hoge Raad) dismissed the
applicant's plea of nullity.
COMPLAINT
The applicant complains under Article 6 para. 1 of the Convention
that he did not have a hearing within a reasonable time as 4 years
elapsed between his appeal to the Court of Appeal and the hearing
before this Court. He submits in particular that the delay cannot be
explained either by the complexity of the case or by his own behaviour
but that it is imputable to the judicial authorities. The illness of
the President of the Regional Court may explain but cannot justify this
delay and there is no justification for the delay which occurred after
the introduction of his appeal.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that he did not have a hearing within a reasonable time as
3 years and 4 1/2 months elapsed between his appeal to the Court of
Appeal and the hearing before this Court. He submits in particular
that the delay cannot be explained either by the complexity of the case
or by his own behaviour but that it is imputable to the judicial
authorities. The illness of the President of the Regional Court may
explain but cannot justify this delay and there is no justification for
the delay which occurred after the introduction of his appeal. Article
6 para. 1 (Art. 6-1) of the Convention provides, insofar as relevant:
"In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal."
The Commission is of the opinion that the applicant's right to
a hearing within a reasonable time came into being on 27 August 1984
when he was summoned to appear before the Regional Court of The Hague
and therefore was substantially affected as a result of the suspicions
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
definitively 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 ended
on 1 May 1990 when the Supreme Court dismissed the applicant's plea of
nullity.
The period to be examined under Article 6 para. 1 (Art. 6-1) of
the Convention thus lasted 5 years, 8 months and 4 days.
The question 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 right after the Dutch authorities have, by
a reduction of his sentence, afforded some redress as to the length of
time which had elapsed between the day when he was summoned to appear
before the Regional Court and the day when the sentence was fixed on
appeal.
The Commission and the Court have held in the past that an
applicant can no longer claim to be a victim of the failure to observe
the "reasonable time" requirement in Article 6 para. 1 (Art. 6-1) of
the Convention if the national authorities have acknowledged either
expressly or in substance the breach of that provision and if redress
has been given (see Eur. Court H.R., Eckle judgment, loc. cit., pp. 30-
31, para. 66; No. 10232/83, Dec. 16.12.83, D.R. 35 p. 213).
The Commission observes that the Court of Appeal of The Hague
explicitly took into account the time which elapsed between the
introduction of the appeal and the hearing before it when reducing the
sentence to eight months' imprisonment of which four months were
suspended on probation. The Commission is therefore of the opinion
that the Dutch authorities have, in substance, acknowledged a breach
of Article 6 para. 1 (Art. 6-1) of the Convention. The Commission
further considers that the mitigation of the sentence accorded on
account of the length of the proceedings is considerable and offers
redress for the violation complained of.
It follows that the applicant cannot claim to be a victim of a
violation of his right under Article 6 para. 1 (Art. 6-1) of the
Convention to a hearing within a reasonable time and his application
is therefore inadmissible under 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 President of the
Second Chamber Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy