CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1995

.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. 23073/93                       by L.I.B.                       against the Netherlands        The European Commission of Human Rights sitting in private on 11 January 1995, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  S. TRECHSEL                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, Secretary to the 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 8 September 1993 by L.I.B. against the Netherlands and registered on 13 December 1994 under file No. 23073/93;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      21 June 1994 and the observations in reply submitted by the      applicant on 2 August 1994;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Dutch citizen, born in 1941 and residing in Aruba. He is represented before the Commission by Mr. G. Spong, a lawyer practising in The Hague.        The facts of the case as submitted by the applicant may be summarised as follows.        On 22 December 1988 the applicant was arrested and provisionally detained on suspicion of having committed drug offences. After a preliminary investigation he was charged with the offences concerned on 15 September 1989. The main hearing was to be held on 22 September 1989 before the Court of First Instance (Gerecht in eerste aanleg) of Aruba, but at the Public Prosecutor's request the hearing was adjourned until 24 October 1989. On that day the hearing was again adjourned, this time at the request of the applicant's lawyer who wished certain witnesses to be heard.        The proceedings were continued on 16 March 1990, and on 30 March 1990 the Court convicted the applicant of two offences and sentenced him to nine years' imprisonment.        Upon appeal the case was brought before the Joint Court of Appeal of the Netherlands Antilles and Aruba (Gemeenschappelijk Hof van Justitie van de Nederlandse Antillen en Aruba). A first hearing before that Court was to be held on 19 November 1990. This hearing was adjourned at the request of the applicant's lawyer who wished to hear certain persons as witnesses, one of them by means of a commission rogatory in the Netherlands. On 31 January 1991 and 18 June 1991 this witness was heard in the Netherlands. A further hearing before the Court of Appeal was held on 19 August 1991. A request to hear some persons in the Netherlands as witnesses was rejected by the Court of Appeal, but the case was adjourned until 16 September 1991 when certain witnesses would have been summoned to appear. On 16 September 1991 the case was again adjourned, since the applicant's lawyer had submitted a list of further witnesses, resident in the Netherlands, whom the applicant wished to be heard.        On 21 October 1991 the Court of Appeal heard some witnesses and decided, with the agreement of the parties, that certain other witnesses should not be heard.        On 22 October 1991 the Court of Appeal quashed the judgment of the Court of First Instance, convicted the applicant of some of the charges, acquitted him as to the rest and sentenced him to seven years' imprisonment.        On 28 October 1991 the applicant lodged an appeal in cassation with the Supreme Court (Hoge Raad). On 9 November 1992 the case-file was received by the Registry of the Supreme Court which heard the case on 5 January 1993 and rejected the appeal on 9 March 1993. In its judgment the Supreme Court stated inter alia:   <Translation>      "It appears from the documents of the case that the accused      was arrested on 22 December 1988 and detained      provisionally. Subsequently it was decided to detain him on      remand. According to the case-file the accused lodged his      appeal in cassation on 28 October 1991. According to a      stamp on the envelope the case-file arrived at the registry      of the Supreme Court on 9 November 1992. The Supreme Court      dealt with the case on 5 January 1993.        Although fourteen months and eight days elapsed between the      lodging of the appeal in cassation and the examination of      this appeal at the hearing of the Supreme Court and      consequently - also in view of the fact that the accused      was detained on remand during the said period - more time      elapsed than can generally be considered desirable, it      cannot be said that [Article 6 of the European Convention      and Article 14 of the International Covenant on Civil and      Political Rights] have as a result been violated. Having      regard also to the fact that in the proceedings before the      lower courts the examination of the case was adjourned four      times at the request of the defence - once in order to hear      by means of a commission rogatory a witness in the      Netherlands - it must be considered that the examination of      this case has been effected 'within a reasonable time' and      'without undue delay' respectively within the meaning of      the said treaty provisions."   COMPLAINT        The applicant complains of a violation of Article 6 para. 1 of the Convention and Article 14 third paragraph under c of the International Covenant on Civil and Political Rights in that between the time of his arrest (22 December 1988) and the hearing before the Supreme Court (5 January 1993) four years and fourteen days elapsed. He emphasises that he was in detention on remand during that period and that there were no circumstances which could justify the delays between 31 January 1991, when a witness was heard in the Netherlands, and 19 August 1991, when the next hearing before the Court of Appeal took place, and between 22 October 1991, when the Court of Appeal gave its judgment, and 5 January 1993, when the hearing before the Supreme Court was held.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 8 September 1993 and registered on 13 December 1993.        On 6 April 1994 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 21 June 1994.   The applicant replied on 2 August 1994.   THE LAW        The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that the criminal charges against him were not determined within a reasonable time. He also refers in this respect to Article 14 of the International Covenant on Civil and Political Rights.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads:        "In the determination of (...) any criminal charge against      him, everyone is entitled to a (..) hearing within a      reasonable time by a (...) tribunal (...)."        The Government submit that, since in the proceedings before the Joint Court of Appeal of the Netherlands Antilles and Aruba the applicant did not complain of the duration of these proceedings, he has not exhausted domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.        The Government further submit that the total length of the proceedings, i.e. slightly more than four years and two months, cannot be regarded as unreasonably long, given the large number of procedural issues before the trial courts and the applicant's four requests for an adjournment for the purpose of hearing witnesses.        As regards the delay between the judgment on appeal and the receipt by the Supreme Court of the applicant's case-file, the Government submit that this delay was caused by the fact that certain documents were missing which had erroneously been placed in the file of a co-accused. Once the case-file in the present case had been received, the Supreme Court dealt speedily with the case and ruled on the appeal in cassation already after four months.        The Government finally submit that when a case-file has been received by the Supreme Court, it is checked whether the appellant in cassation is being held in detention. If he is detained, the case is in principle given priority. After the judgment in the Abdoella case (Eur. Court H.R., judgment of 25 November 1992, Series A no. 148-A), a special committee has been set up in order to investigate ways of reducing the time taken for the transmission of case-files, and the present case has been brought to the attention of this committee.        The applicant submits that he raised a complaint on the length of the proceedings before the Supreme Court and that that court ruled on the merits of this complaint. The fact that the same matter had not been raised in the proceedings on appeal was not a ground on which the Supreme Court rejected the complaint regarding the length of the proceedings. The applicant further submits that he did urge the Supreme Court to expedite the proceedings in cassation.        The Commission first points out that it can only examine the application on the basis of the provisions of the European Convention on Human Rights. Insofar as the applicant also refers to the International Covenant on Civil and Political Rights, his complaints therefore fall outside the competence of the Commission.        The Commission notes that the applicant raised his complaint concerning the length of the proceedings in his appeal in cassation to the Supreme Court against the judgment of the Joint Court of Appeal of the Netherlands Antilles and Aruba of 22 October 1991. In its judgment of 9 March 1993 the Supreme Court examined this complaint and rejected it as ill-founded.        In these circumstances the applicant must be considered to have exhausted the domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.        The application cannot, therefore, be rejected under Article 27 para. 3 and Article 26 (Art. 27-3, 26) of the Convention.        Moreover, the Commission, having regard to the parties' submissions, considers that the application raises issues of fact and law which can only be resolved by an examination of the merits. The application cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE,      without prejudging the merits of the case.   Secretary to the Second Chamber       President of the Second Chamber          (K. ROGGE)                              (H.DANELIUS)