EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 18091/91
W.
against
the NETHERLANDS
REPORT OF THE COMMISSION
(adopted on 10 December 1992)
TABLE OF CONTENTS
Page
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
PART I: STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . .3
PART II: SOLUTION REACHED . . . . . . . . . . . . . . . . . . . . . . . .4
INTRODUCTION
1. This Report relates to the application introduced under
Article 25 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms by W. against the Netherlands on
4 March 1991. It was registered on 16 April 1991 under file
No. 18091/91.
2. The applicant was represented before the Commission by
Mr. G.P. Hamer, a lawyer practising in Amsterdam, the Netherlands.
The respondent Government were represented by their Agent,
Mr. K. de Vey Mestdagh, of the Ministry of Foreign Affairs.
3. On 11 May 1992 the European Commission of Human Rights
declared the application admissible. It then proceeded to carry
out its task under Article 28 para. 1 of the Convention which
provides as follows:
"In the event of the Commission accepting a petition referred
to it:
a. it shall, with a view to ascertaining the facts,
undertake together with the representatives of the
parties an examination of the petition and, if need be,
an investigation, for the effective conduct of which the
States concerned shall furnish all necessary facilities,
after an exchange of views with the Commission;
b. it shall at the same time place itself at the disposal
of the parties concerned with a view to securing a
friendly settlement of the matter on the basis of
respect for Human Rights as defined in this Convention."
4. The Commission found that the parties had reached a friendly
settlement of the case and on 10 December 1992 it adopted this
Report which, in accordance with Article 28 para. 2 of the
Convention, is confined to a brief statement of the facts and of
the solution reached.
The following members were present when the Report was
adopted:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
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
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
PART I
STATEMENT OF THE FACTS
5. The applicant is a Dutch citizen, born in 1949 and residing
in Amsterdam, the Netherlands.
6. On or about 29 September 1988, the applicant was arrested as
suspected of theft. On 6 October 1988, the Magistrate
(politierechter) of Amsterdam found him guilty of one theft,
acquitted him of another theft with which he had also been charged
and sentenced him to two months' imprisonment. On the same day,
the applicant was released from detention on remand.
7. Both the applicant and the public prosecutor appealed to the
Court of Appeal (Gerechtshof) of Amsterdam. On 20 November 1989,
the Court of Appeal quashed the judgment of the police judge, found
the applicant guilty of both thefts and sentenced him to five
months' imprisonment with deduction of the time spent in detention
on remand.
8. On the applicant's behalf, his lawyer appealed to the Supreme
Court (Hoge Raad). The lawyer also informed the registry of the
Supreme Court that he was the applicant's lawyer, although this
information was not strictly necessary, since he had already
represented the applicant before both the Magistrate and the Court
of Appeal.
9. As a reply, the registry of the Supreme Court informed the
lawyer that the applicant's case had not yet arrived at the Court.
Subsequently, the lawyer was not informed either of the arrival of
the case-file or of the date of the hearing in the case.
10. As from 13 June 1990, the applicant was detained on remand in
connection with another criminal case. During his detention a
summons for the hearing before the Supreme Court was sent to his
home address. He did not receive this letter, and it was not until
about 15 February 1991 that he was informed that he would not be
released at that time, because he had to serve a sentence of five
months' imprisonment, the Supreme Court having rejected his appeal
on 9 October 1990.
11. The applicant complained before the Commission that there had
been violations of Article 5 para. 1 and Article 6 para. 1 of the
Convention in that his detention had not been ordered in accordance
with a procedure prescribed by law and his right to defend himself
had not been respected.
PART II
SOLUTION REACHED
12. Following the decision on the admissibility of the
application, the Commission placed itself at the disposal of the
parties with a view to securing a friendly settlement in accordance
with Article 28 para. 1 (b) of the Convention and invited the
parties to submit any proposals they wished to make.
13. In accordance with the usual practice, the Secretary, acting
on the Commission's instructions, contacted the parties to discuss
with them the possibilities of reaching a friendly settlement.
14. Between 27 May 1992 and 23 October 1992 the parties exchanged
various letters and considered a proposal made by the Commission
with a view to such a settlement.
15. By letter of 13 October 1992 the Netherlands Government
informed the Commission that, in order to attain a friendly
settlement, they were willing to pay a total amount of 10.000 Dutch
guilders to the applicant, including the applicant's legal costs of
5,332.50 Dutch guilders, on the condition that the applicant
specified the costs he had to bear in relation to the procedure
before the Commission.
16. By letter of 23 October 1992 the applicant's lawyer informed
the Commission that the applicant accepted the Government's
proposals. He also submitted a specification of the applicant's
legal costs.
17. At its session on 10 December 1992 the Commission noted that
the parties had reached an agreement regarding the terms of a
settlement. It further found, having regard to
Article 28 para. 1 (b) of the Convention, that the friendly
settlement of the case had been secured on the basis of respect for
Human Rights as defined in the Convention.
18. For these reasons, the Commission adopted this Report.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy