CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 septembre 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                             AS TO THE ADMISSIBILITY OF                         Application No. 12055/86                       by Jacobus J.P. KEIJSPER                       against the Netherlands             The European Commission of Human Rights sitting in private on 8 September 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G.H. THUNE              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   J. RAYMOND, Deputy 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 5 October 1984 by Jacobus J.P. KEIJSPER against the Netherlands and registered on 19 March 1986 under file No. 12055/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant, who is a Dutch citizen, was born on 25 February 1933 and is presently residing in Breda, the Netherlands. In the proceedings before the Commission he is represented by Mr.   F.R. van der Laken, a lawyer practising in Breda.           On 5 April 1984 the Regional Court of 's-Hertogenbosch found the applicant guilty of co-operating in drug-trafficking from the Netherlands to the United Kingdom, which constitutes a crime within the meaning of the Dutch Narcotics Act.   The applicant was sentenced to 18 months imprisonment.           On the same day, the applicant lodged an appeal with the Court of Appeal in 's-Hertogenbosch.           In the meantime, the applicant's detention on remand, which had started at some date before the Regional Court's judgment, continued.   According to Section 557 of the Code of Penal Procedure, the execution of a judgment is suspended until after an ordinary remedy instituted against it has been withdrawn or decided upon.   The applicant's continued detention after his conviction on 5 April 1984 was, under Dutch law,   considered as detention on remand.   After that date, the periodical control of the lawfulness of the continued detention on remand passed from the Regional Court to the Court of Appeal.           On 24 April, 22 May, 15 June, 24 July and 21 August 1984, the Court of Appeal, upon requests by the Attorney-General, ordered the prolongation of the applicant's detention.   At the hearings held on the occasion of the requests by the Attorney-General, the applicant's lawyer pleaded that his client was not guilty and that the suspicion against his client was insufficient to justify a continuation of the detention.   He also objected to the fact that the applicant's case-file, including the judgment of the Regional Court and the procès-verbal of the hearing before that court, was not, at the time of the first three orders, in the possession of the Court of Appeal or of the Attorney-General.   During the hearing on 15 June 1984, the Attorney-General declared that the applicant's case-file had been with the registry of the Court of Appeal at least once and that copies were made of the most important testimonies, which show sufficient grounds for continuation of the detention.   He indicated, in particular, that the applicant already had a criminal record and that there existed a fear of repetition, having regard to the organised nature of the crime of which he was suspected.           On 25 June 1984, copies of the Regional Court's judgment of 5 April 1984 were sent to the registry of the Court of Appeal. According to the applicant, it is doubtful whether an integral text of the judgment was at all in written form before its submission to the registry of the Court of Appeal.           On 9 October 1984, the Court of Appeal upheld the judgment of the Regional Court.   On 4 June 1985, Supreme Court quashed this decision on the ground that the Court of Appeal had wrongly based its judgment on testimony which was put into doubt by a later statement of the witness concerned.           The case was referred to the Arnhem Court of Appeal which acquitted the applicant on 21 November 1986.           On 10 July 1987, the Arnhem Court of Appeal granted the applicant 50,000 Dutch guilders damages in respect of the detention on remand he has suffered.   COMPLAINTS           The applicant complains that the prolongation of his detention on remand on 24 April, 22 May and 15 June 1984 amounts to a violation of Article 5 paras. 3 and 4 and Article 6 para. 1 of the Convention, since the Court of Appeal took its decisions without having recourse to the case-file.           He alleges that the relevant proceedings before the Court of Appeal were not fair within the meaning of Article 6 of the Convention, because the court was not able to form an opinion on the validity of the applicant's arguments for termination of the detention.   For the same reason, the applicant alleges that Article 5 para. 3 of the Convention was violated, since a decision to release pending trial presupposes an assessment of the arguments for and against on the part of the judge.   Nor can there be, according to the applicant, an acceptable decision on the lawfulness of the detention as envisaged in Article 5 para. 4 of the Convention when the competent court does not possess the case-file.   THE LAW   1.       The applicant has alleged that the prolongation of his detention on remand, ordered by the Court of Appeal on 24 April, 22 May and 15 June 1984 constitutes a violation of Article 5 para. 3 (Art. 5-3) of the Convention on account of the fact that the orders were given without the Court having recourse to the case-file concerning the applicant.           The Commission first notes that the decision complained of concerned the applicant's detention on remand after his conviction in first instance by the Regional Court on 5 April 1984.           It follows from the case-law of the Commission and the European Court of Human Rights that, for the purposes of the Convention, such a detention on remand after conviction while an appeal is pending should be considered as detention "after conviction" within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention, even if detention continues to be considered as detention on remand under domestic law (Eur. Court H.R., Wemhoff judgment of 27 June 1968, Series A no. 7, p. 23-24, para. 9;   No. 8555/79, Dec. 4.12.79, D.R. 20 p. 199; No. 9132/80, Dec. 16.12.82, D.R. 31 p. 154).           In the present case, therefore, the applicant's detention after his conviction on 5 April 1984 cannot be regarded as detention under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention.   It follows that Article 5 para. 3 (Art. 5-3) does not apply to that period of detention.   This complaint must therefore be rejected as incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant has further complained that Article 5 para. 4 (Art. 5-4) of the Convention was violated in that the Court of Appeal could not adequately decide upon the lawfulness of his detention since it did not have recourse to the case-file.           However, even assuming that Article 5 para. 4 (Art. 5-4) of the Convention is applicable to the Court of Appeal's decisions to prolong the applicant's detention, the Commission finds that there is no appearance of a violation of this provision since it is clear that, for the purposes of Article 5 para. 4 (Art. 5-4), the requisite judicial control was incorporated in the applicant's original conviction by the Regional Court (cf. inter alia, Eur.   Court H.R., De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 40, para. 76).           It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant has also complained that the Court of Appeal could not have due regard to his arguments for the termination of his detention since it lacked knowledge of the relevant documents.   He has alleged that the proceedings concerned were not fair within the meaning of Article 6 (Art. 6) of the Convention.           However, the Commission notes that the proceedings complained of concerned prolongations of the applicant's detention and that they did not involve a determination of a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. mutatis mutandis, No. 6541/74, Dec. 18.12.74, D.R. 1 p. 82).           It follows that the proceedings complained of fall outside the scope of Article 6 para. 1 (Art. 6-1) and that, therefore, this part of the application is also incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission,           DECLARES THE APPLICATION INADMISSIBLE   Deputy Secretary to the Commission            President of the Commission           (J. RAYMOND)                                     (C.A. NØRGAARD)