CEDH · CASELAW;REPORTS;ENG — 8 janvier 1993

.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 }                        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