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You are here: BAILII >> Databases >> European Court of Human Rights >> ABDOELLA v. THE NETHERLANDS - 12728/87 [1992] ECHR 70 (25 November 1992)
URL: http://www.bailii.org/eu/cases/ECHR/1992/70.html
Cite as: 20 EHRR 585, (1995) 20 EHRR 585, [1992] ECHR 70
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In the case of Abdoella v. the Netherlands*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")** and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr R. Macdonald,
Mr N. Valticos,
Mr S.K. Martens,
Mr I. Foighel,
Mr L. Wildhaber,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 26 June and 28 October 1992,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 1/1992/346/419. The first number is the case's
position on the list of cases referred to the Court in the relevant
year (second number). The last two numbers indicate the case's
position on the list of cases referred to the Court since its creation
and on the list of the corresponding originating applications to the
Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the Netherlands
Government ("the Government") on 2 January 1992, within the three-month
period laid down in Article 32 para. 1 and Article 47 (art. 32-1,
art. 47) of the Convention. It originated in an application
(no. 12728/87) against the Netherlands lodged with the European
Commission of Human Rights ("the Commission") under Article 25
(art. 25) on 9 February 1987 by a Netherlands citizen,
Mr Abdoel Aliem Khan Abdoella.
The Government's application referred to Articles 44 and 48
(art. 44, art. 48). Its object was to obtain a decision of the Court
regarding all questions on which the Commission had formed conclusions
in its report, and in particular its reasoning as to Article 6 para. 1
(art. 6-1) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr S.K. Martens, the elected judge of Netherlands nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 24 January 1992 the
President drew by lot, in the presence of the Registrar, the names of
the other seven members, namely Mr L.-E. Pettiti, Mr B. Walsh,
Mr R. Macdonald, Mr R. Bernhardt, Mr N. Valticos, Mr I. Foighel and
Mr L. Wildhaber (Article 43 in fine of the Convention and Rule 21
para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of
the Government, the Delegate of the Commission and the applicant's
lawyer on the organisation of the procedure (Rule 37 para. 1 and
Rule 38).
Although the Government had previously stated that they
considered a written procedure to be necessary, they indicated, by
letter of 13 April 1992, that they did not wish to file a memorial.
No memorial was received from the applicant within the time-limit laid
down by the President.
On 3 June 1992 the Commission filed a number of documents which
the Registrar had sought from it on the President's instructions.
On 5 June 1992 the Registrar received the applicant's claim for
just satisfaction under Article 50 (art. 50) of the Convention.
5. As directed by the President, the hearing took place in public
in the Human Rights Building, Strasbourg, on 22 June 1992. The Court
had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr K. de Vey Mestdagh, Ministry of Foreign Affairs, Agent,
Mr A.T.J. de Boer, Ministry of Justice, Adviser;
(b) for the Commission
Mr H.G. Schermers, Delegate;
(c) for the applicant
Ms G.E.M. Later, advocaat en procureur, Counsel,
Mr M.Th.M. Zumpolle, advocaat en procureur, Adviser.
The Court heard addresses by Mr de Vey Mestdagh for the
Government, by Mr Schermers for the Commission and by Ms Later for the
applicant.
AS TO THE FACTS
I. THE PARTICULAR CIRCUMSTANCES OF THE CASE
6. On 18 January 1983 Mr Abdoella was taken into police custody
and charged with incitement to murder. He was subsequently detained
on remand.
On the conclusion of the investigations, in which several
suspects were involved, he was summoned, on 14 April, to appear for
trial before the Regional Court (Arrondissementsrechtbank) of
The Hague. On 17 May 1983 he was convicted and sentenced to twelve
years' imprisonment less the time already spent in police custody and
in detention on remand.
The applicant appealed to the Court of Appeal (Gerechtshof) of
The Hague. By judgment of 29 August 1983 it upheld the Regional
Court's decision.
The applicant then, within the time-limit of fourteen days
prescribed by Netherlands law (see paragraph 11 (d) below), introduced
an appeal on points of law to the Supreme Court (Hoge Raad) by means
of a statement made at the registry of the Hague Court of Appeal. The
documents of the case were sent by the registry of that court to the
registry of the Supreme Court and received there on 3 July 1984. The
Procurator-General in his advisory opinion proposed its dismissal.
However, by judgment of 15 January 1985, the Supreme Court quashed the
Hague Court of Appeal's judgment on technical grounds and referred the
case to the Amsterdam Court of Appeal. The registry of the Supreme
Court sent the documents to the registry of the Amsterdam Court on
1 February 1985; they were received on the same day.
7. On 31 May 1985 the Attorney-General at the Amsterdam Court of
Appeal issued a summons against the applicant. The Court of Appeal
heard the case on 28 June 1985.
During the hearing the applicant requested a suspension of his
detention on remand and also an adjournment of the hearing in order to
have examined two witnesses who had been summoned at the request of the
defence but who had failed to appear. The Court of Appeal refused the
first request. However, with the agreement of counsel for the defence
it adjourned the hearing until 20 September 1985; the reason given for
a delay of that length (see paragraph 11 (a) below) was that the
court's calendar for the intervening period did not permit an earlier
date.
The Court of Appeal resumed its hearing on 20 September 1985,
at which point the witnesses who had failed to appear on 28 June were
examined. It refused a new request by the applicant for suspension of
his detention on remand.
By judgment of 4 October 1985 the Court of Appeal convicted the
applicant and sentenced him to ten years' imprisonment less the time
already spent in police custody and detention on remand.
8. Within the time-limit of two weeks prescribed by Netherlands
law, Mr Abdoella introduced a second appeal on points of law to the
Supreme Court by means of a statement made at the registry of the
Amsterdam Court of Appeal.
Pending the hearing of that appeal the applicant made a number
of requests to the Amsterdam Court of Appeal concerning his detention
on remand. It suspended the measure for two weeks in April 1986 and
again for two weeks in July 1986. However, on 29 October 1986 it
rejected a request, based inter alia on Articles 5 para. 3 and
6 para. 1 (art. 5-3, art. 6-1) of the Convention, for the detention to
be terminated or else suspended.
In April 1987 the Amsterdam Court of Appeal again granted two
weeks' leave, but refused to terminate or otherwise suspend the
detention.
9. The documents of the case were sent by the registry of the
Amsterdam Court of Appeal to the registry of the Supreme Court, which
received them on 15 September 1986. On a date in October 1986, the
President of the Criminal Division of the Supreme Court set the hearing
for 10 February 1987. The applicant, through his counsel, subsequently
filed his grounds of appeal.
Counsel for the defence proposed five grounds of appeal. The
first of these, the only one which raised points with which this Court
is concerned, was a complaint about violation of, inter alia,
Article 5 para. 3 in conjunction with Article 5 para. 1 (c) and
Article 6 para. 1 (art. 5-3, art. 5-1-c, art. 6-1) of the Convention.
The explanatory note emphasised that the applicant had been in police
custody and detention on remand since 18 January 1983 and that, as a
consequence, both he and his family had developed psychiatric problems.
Detention on remand had only been suspended twice on this ground, in
each case for two weeks, the last such occasion having been in
July 1986. Although the case was not complex, it had already taken
more than four years, so that the "reasonable time" laid down by
Article 5 (art. 5) of the Convention had been exceeded. A separate
assessment of the various phases of the proceedings led to the same
conclusion: in particular, the lapses of time involved in the first
appeal on points of law, that involved in the procedure before the
Amsterdam Court of Appeal and the treatment of the second appeal on
points of law were such that the said provisions had not been complied
with.
In accordance with the advisory opinion filed on 10 March 1987
by the Procurator-General the Supreme Court dismissed the applicant's
appeal by judgment of 19 May 1987. It held, inter alia, that it had
to be assumed that neither the applicant nor his counsel had raised the
issue of the length of the proceedings at the Amsterdam Court of
Appeal's hearings on 28 June 1985 and 20 September 1985; that the mere
circumstance that the preparation of the case and its examination by
the Regional Court and the Court of Appeal of The Hague and the Supreme
Court had taken two years (less some days) did not in itself oblige the
Amsterdam Court of Appeal to address explicitly the question whether
or not the case had been decided within a reasonable time; and that in
addition, taking into account the time that had elapsed between the
Amsterdam Court of Appeal's judgment of 4 October 1985 and the Supreme
Court's 1987 hearing, no violation of Articles 5 para. 3 and 6 para. 1
(art. 5-3, art. 6-1) of the Convention had taken place. The personal
circumstances of the applicant did not warrant any other conclusion.
10. On 4 June 1987 Mr Abdoella submitted a request for a pardon.
This was refused on 12 November 1987 by the Deputy Minister of Justice
(Staatssecretaris van Justitie).
An application for review was lodged by the applicant on
28 December 1987 but declared inadmissible by the Supreme Court on
6 December 1988.
The applicant was released from prison on 22 December 1989.
II. RELEVANT DOMESTIC LAW
A. Relevant provisions of the Code of Criminal Procedure
11. The following is a translation from the original Dutch of the
relevant provisions of the Netherlands Code of Criminal Procedure
(Wetboek van Strafvordering).
(a) Article 277a
"1. If the accused is in detention on remand, the following
paragraphs of this article shall apply.
2. If the Regional Court suspends the examination at the
hearing for a fixed period, it shall as a rule set the period
of the suspension at no longer than one month. For compelling
reasons, which are to be mentioned in the official record, it
can decide on a longer period, but in no case more than three
months.
3. ..."
For the purposes of this provision, a month is taken to mean
thirty days (Article 136 para. 1). Article 277a is equally applicable
to proceedings before the Court of Appeal (Article 415).
(b) Article 365
"1. The judgment shall be signed within twice twenty-four
hours after its pronouncement by the judges who heard the case
and by the registrar who was present at the deliberations.
2. If one or more of them are unable to do so, this shall be
mentioned at the end of the judgment.
3. As soon as the judgment is signed, and in any case after
the end of the period laid down in the first paragraph, the
accused or his counsel can take cognisance of it and of the
official record of the hearing."
This article too is equally applicable to proceedings before
the Court of Appeal (Article 415).
(c) Article 449
"1. An objection [against a default judgment], an appeal or an
appeal on points of law shall be lodged by means of a
statement to be made by the person exercising that legal
remedy at the registry of the court by which or at which the
decision was given.
2. ...
3. ..."
(d) Article 408
"1. An appeal must be filed:
a. if the summons to appear at the hearing has been notified
to the accused in person or the accused has appeared at the
hearing, within fourteen days after the pronouncement of the
final judgment;
b. in other cases, within fourteen days after a circumstance
has occurred from which it follows that the accused is aware
of the judgment.
2. ..."
(e) Article 409
"1. After an appeal is filed, the registrar of the District
Court shall send the documents of the case to the registrar of
the Court of Appeal as soon as possible.
2. ..."
(f) Article 432
"1. An appeal on points of law must be filed:
a. if the summons to appear at the hearing has been notified
to the accused in person or the accused has appeared at the
hearing, within fourteen days after the pronouncement of the
final judgment;
b. in other cases, within fourteen days after a circumstance
has occurred from which it follows that the accused is aware
of the judgment.
2. ..."
(g) Article 433
(as applicable at the relevant time)
"1. The prosecution (Openbaar ministerie) is obliged, on pain
of inadmissibility of the prosecution, to file, together with
its appeal or within ten days thereafter, at the registry of
its court, a written statement of its grounds of appeal on
points of law.
2. The accused by whom or in whose name an appeal on points of
law has been filed is entitled to file such a written
statement with the Supreme Court until the day of the hearing
at the latest.
3. The registrar of the court which delivered the judgment
shall send the documents of the case to the registrar of the
Supreme Court within thirty days after the time-limit for the
prosecution to file its written statement has expired or after
it has filed a written statement earlier.
4. ..."
In practice it was generally assumed that the time-limit
according to paragraph 3 of this article was fifty-four days after the
date of pronouncement of the Court of Appeal's judgment, irrespective
of whether or not the prosecution had lodged an appeal on points of
law.
Before the Act of 14 January 1976 (Staatsblad (Official
Gazette) 9), which altered (inter alia) Article 433 para. 3, this
provision, like Article 409, provided only that the documents were to
be sent in "as soon as possible". The time-limit of thirty days was
introduced "with a view to expediting the transmission of the file".
By the Act of 27 November 1991 (Staatsblad 663), which came
into force on 1 May 1992, the time-limit of thirty days incorporated
in the third paragraph of Article 433 in 1976 was removed; that
paragraph now once more provides that the documents are to be sent in
"as soon as possible". The reasons given therefor were firstly that,
according to the case-law of the Supreme Court (see paragraphs 13 and
14 below), non-compliance with Article 433 para. 3 did not entail
nullity and the rights of the accused in case of unreasonable delay in
the proceedings before the Supreme Court were in any case protected by
Articles 6 para. 1 (art. 6-1) of the Convention and 14 para. 1 of the
International Covenant on Civil and Political Rights. Secondly, it was
pointed out that in practice this time-limit was only rarely met and
that it appeared inappropriate to maintain a provision which "in
relation to the - speedy - pursuit of the proceedings before the
Supreme Court creates expectations which in practice can hardly if at
all be fulfilled".
(h) Article 436
"1. After the documents have been at the registry for a period
of eight days, they shall be taken by the Procurator-General
against receipt and forwarded to the Supreme Court along with
his proposal for fixing a hearing date.
2. The president shall fix the date for the hearing and shall
appoint a rapporteur to report at the hearing."
12. After referral by the Supreme Court, the documents of the case
must be sent by its registry to the registry of the court which is to
retry the case. However, due to the fact that the Code of Criminal
Procedure contains no provisions at all relating to proceedings after
referral, a provision comparable to Articles 409 and 433 and applicable
in these cases does not exist.
B. Relevant case-law
13. Non-compliance with Article 409 para. 1 or Article 433 para. 3
of the Code of Criminal Procedure does not, according to the case-law
of the Supreme Court, entail nullity: that sanction is not expressly
provided for; neither are these provisions so essential that
non-compliance should ipso facto lead to nullity. However,
non-compliance is relevant in connection with the question whether the
requirement of trial "within a reasonable time" within the meaning of
Article 6 (art. 6) of the Convention has been complied with (see, for
instance, the judgments of the Supreme Court of 23 September 1980,
NJ (Nederlandse Jurisprudentie) 1981, 116, and 29 March 1988, NJ 1988,
813).
14. The case-law of the Supreme Court relating to the requirement
of "trial within a reasonable time" within the meaning of Article 6
(art. 6) of the Convention in general, and more especially in relation
to the question of the consequences of non-compliance with Articles 409
para. 1 and 433 para. 3 of the Code of Criminal Procedure, may be
summarised as follows.
(a) Exceeding what may, depending on the particular circumstances
of the case, be considered a "reasonable time" may, but does not
necessarily, lead to inadmissibility of the prosecution; the court may
also deem it appropriate to impose a more lenient sentence than it
would have done had the violation of the relevant rights of the accused
not taken place. If the court decides to impose a more lenient
sentence, it must take into account the extent of the violation and
also indicate the reduction which it has thought fit to apply (see, for
instance, the Supreme Court's judgments of 29 January 1985, NJ 1985,
690; 7 April 1987, NJ 1987, 587; 29 March 1988, NJ 1988, 813;
25 April 1989, NJ 1989, 705).
(b) In order to determine whether or not a "reasonable time" has
been exceeded, the court must consider both the various phases of
criminal proceedings and their overall time-span and take into account
all appropriate circumstances in reaching its decision, such as the
complexity of the case, the conduct of the accused and the way in which
the case has been handled by the competent authorities (see, for
instance, the judgment of the Supreme Court of 19 February 1985,
NJ 1985, 581).
(c) As the decision as to whether or not a reasonable time has been
exceeded is thus partly dependent on the assessment of factual
circumstances, the Supreme Court, which essentially has competence only
as regards points of law, can examine the validity of the decision of
the judge of fact only to a limited degree; thus a judgment can only
be quashed if it reveals an incorrect view of the concept of trial
within a reasonable time or of the standards set out in the preceding
paragraph, or if the grounds given for its decision are insufficient
(see, for instance, the judgments of the Supreme Court of
5 January 1982, NJ 1982, 339; 9 March 1982, NJ 1982, 409; 11 May 1982,
NJ 1983, 280; 12 October 1982, NJ 1983, 371; 3 January 1984, NJ 1984,
403; 29 January 1985, NJ 1985, 690; 10 December 1985, NJ 1986, 480;
1 November 1988, NJ 1989, 680; 31 October 1989, NJ 1990, 257).
Although the Supreme Court has held that delaying criminal
proceedings for more than two years does not in itself warrant the
conclusion that a "reasonable time" has been exceeded (see its judgment
of 16 December 1986, NJ 1987, 637), it is commonly assumed that in its
above-mentioned limited assessment it applies, as a general guideline,
a rule presumed to have been derived from the report of the Commission
of 12 March 1984 in application no. 9193/80 (Marijnissen) (Decisions
and Reports 40, pp. 83-99) endorsed by the Committee of Ministers in
its resolution of 25 January 1985 (DH (85)4). This rule may be
summarised as follows: in principle, a "reasonable time" has been
exceeded if the proceedings in one of their phases have not been
pursued for more than two years due to circumstances for which the
accused is not responsible; if such an eventuality occurs and is
pleaded by the defence, then a rejection of that plea must be
particularly well reasoned. The character of this rule as a general
guideline implies, on the one hand, that under certain circumstances
stagnation for a shorter period may be a reason for applying such
strict requirements to the grounds given for rejecting the defence's
plea that a reasonable time has been exceeded and, on the other hand,
apparently, that exceeding the time-limit of two years may sometimes,
perhaps also depending on the further circumstances of the particular
case, be allowed to pass.
(d) The courts must also address ex officio the question whether
a reasonable time has been exceeded. However, it must only appear from
the judgment that this has been done if there are special
circumstances.
In considering whether or not such special circumstances are
present, the Supreme Court uses the general guideline, mutatis
mutandis, indicated in sub-paragraph (c). This means that, as a rule,
it only holds the lower courts bound to address ex officio the question
whether or not a reasonable time has been exceeded if it appears from
the documents that the proceedings have been held up for more than two
years due to reasons for which the defence cannot be held accountable.
However, if there are special circumstances, the courts are obliged to
address the question ex officio even if the period of inactivity is
shorter (see, for instance, the Supreme Court's judgments of
1 July 1981, NJ 1981, 625; 1 May 1990, NJ 1990, 641).
(e) The Supreme Court applies these rules itself in the procedure
of appeal on points of law and thus addresses, ex officio if need be,
the question whether it must be assumed that the duration of
proceedings in this phase has led to excessive length of the
proceedings. In this connection, it appears from its abundant case-law
that the time elapsed between the filing of the appeal on points of law
and the sending in of the documents to the registry of the Supreme
Court has some significance: if this causes such a delay that the case
comes up before the Supreme Court for the first time more than two
years after the appeal on points of law was filed, then as a rule the
judgment will be quashed and the case will be referred for retrial, at
which point the judge of fact will have the options indicated in
sub-paragraph (a) above of declaring the prosecution inadmissible or
of reducing the sentence. However, the Supreme Court may itself reach
the opinion that no other decision is possible than to declare the
prosecution inadmissible, which it may then do of its own motion (see,
for instance, its judgments of 12 January 1988, NJ 1988, 814;
29 March 1988, NJ 1988, 813; 12 April 1988, NJ 1988, 970;
25 April 1989, NJ 1989, 705; 6 June 1989, NJ 1990, 92;
13 February 1990, NJ 1990, 633). On the other hand, if the period of
inactivity is shorter, the Supreme Court will merely state that the
delay is longer than is desirable but that judgment of the case cannot
be held not to have taken place within a reasonable time; it will then
determine, applying the rule set forth in the preceding sub-paragraph,
whether or not special circumstances warrant any different decision
(see, for instance, its judgments of 13 January 1981, NJ 1981, 240;
3 March 1981, NJ 1981, 367; 16 February 1982, NJ 1982, 410;
4 June 1985, NJ 1986, 182; 16 September 1985, NJ 1986, 495;
11 February 1986, NJ 1986, 553; 11 February 1986, NJ 1986, 644;
16 February 1988, NJ 1988, 823).
PROCEEDINGS BEFORE THE COMMISSION
15. Mr Abdoella lodged his application with the Commission on
9 February 1987. He complained, inter alia, of the length of the
criminal proceedings against him and relied on Article 6 para. 1
(art. 6-1) of the Convention.
On 10 April 1991 the Commission declared the application
(no. 12728/87) admissible in this respect and inadmissible as to the
remainder. In its report of 14 October 1991 (Article 31) (art. 31),
it expressed the unanimous opinion that there had been a violation of
Article 6 para. 1 (art. 6-1). The full text of the Commission's
opinion is reproduced as an annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 248-A of Series
A of the Publications of the Court), but a copy of the Commission's
report is available from the registry.
_______________
AS TO THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
16. At the hearing, the Government stated the view that, with
regard to possible delays before the second appeal on points of law,
no complaints were raised until the final instance before the Supreme
Court. According to the Government, this meant that domestic remedies
had not been exhausted as far as these prior lapses of time were
concerned, since the assessment thereof involved questions of fact
which could and therefore should have been raised before the lower
courts.
17. This matter was raised before the Commission but not before the
Court until the hearing. Since the Government have failed to file a
statement setting out the objection not later than the time when they
informed the President of their intention not to file a memorial, as
laid down in Rule 48 para. 1 of the Rules of Court, it must be rejected
as out of time (for recent authorities, see particularly the Tomasi v.
France judgment of 27 August 1992, Series A no. 241-A, p. 42,
para. 119; the Brozicek v. Italy judgment of 19 December 1989,
Series A no. 167, p. 15, para. 30; mutatis mutandis, the Open Door and
Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A
no. 246-A, p. 23, para. 46).
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
18. The applicant claimed that his case had not been decided within
a "reasonable time" as required by Article 6 para. 1 (art. 6-1) of the
Convention, according to the relevant parts of which:
"In the determination ... of any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal ..."
The Government disputed this view, whereas the Commission
subscribed to it.
19. The Commission based its opinion on the period which it
regarded as particularly relevant, that between 4 October 1985, when
the judgment of the Amsterdam Court of Appeal was pronounced, and
19 May 1987, the date of the final decision of the Supreme Court.
However, the compass of the "case" is delimited not by the Commission's
report but by its admissibility decision (see particularly the Guzzardi
v. Italy judgment of 6 November 1980, Series A no. 39, p. 39,
para. 106; more recently, the Helmers v. Sweden judgment of
29 October 1991, Series A no. 212-A, p. 13, para. 25).
The Commission declared admissible "the applicant's complaint
under Article 6 (art. 6) of the Convention concerning the length of the
proceedings". From the way the Commission has, in paragraph 3 of its
admissibility decision, paraphrased this complaint, it is clear that
the complaint before the Court concerns the length of the proceedings
taken as a whole, and in particular the time involved in the two
appeals to the Supreme Court. It is true that in her pleadings before
the Court the applicant's lawyer particularly stressed the length of
the second of these appeals, but the Court finds that it cannot be
inferred therefrom that she intended to restrict the complaint to that
period.
Accordingly, the period to be taken into consideration began
on 18 January 1983, the date of the applicant's arrest, and ended on
19 May 1987, the date on which the Supreme Court rejected his appeal.
It thus lasted for four years, four months and one day.
20. The reasonableness of the length of proceedings is to be
assessed with reference to the criteria laid down in the Court's case-
law and in the light of the circumstances of the case.
21. The Delegate of the Commission expressed the view that the
length of the criminal proceedings could not be justified by the large
number of court examinations involved.
22. The Court observes that the case, although not particularly
complex, was a serious one, the applicant having been accused of the
crime of incitement to murder. Nevertheless the courts dealt with it
within the above-mentioned period of four years and four months. In
view of the fact that five court examinations were involved, this
period as such is not unreasonable.
23. However, after the applicant filed his first appeal on points
of law, within fourteen days after 29 August 1983 (see paragraph 6
above), the documents of the case were not sent to the Supreme Court
until 3 July 1984 - more than ten months after judgment was delivered
by the Hague Court of Appeal - and after the applicant filed his second
appeal on points of law, within fourteen days after 4 October 1985 (see
paragraph 8 above), the Supreme Court did not receive the documents of
the case until 15 September 1986, nearly eleven and a half months after
the judgment of the Amsterdam Court of Appeal. For these lapses of
time the Government have not offered any explanation.
24. The time-limit of thirty days was incorporated in Article 433
of the Netherlands Code of Criminal Procedure with a view to expediting
the transmission of the case-file (see paragraph 11 (g) above). In the
applicant's case, the judicial authorities failed to comply with it on
both occasions. It appears that compliance had become the exception
by the time the time-limit was abolished.
Article 6 para. 1 (art. 6-1) imposes on the Contracting States
the duty to organise their legal systems in such a way that their
courts can meet each of its requirements.
This Court has in the past held that what was at stake for the
applicant had to be taken into account in assessing the reasonableness
of the length of proceedings (see particularly the X v. France judgment
of 31 March 1992, Series A no. 234-C, pp. 90-91, para. 32; the H. v.
the United Kingdom judgment of 8 July 1987, Series A no. 120, p. 59,
para. 71). Likewise, this Court has repeatedly held, in the context
of Article 5 para. 3 (art. 5-3), that persons held in detention pending
trial are entitled to "special diligence" on the part of the competent
authorities (see, as the most recent authorities, the Tomasi judgment
of 27 August 1992 mentioned above, p. 35, para. 84; the Herczegfalvy
v. Austria judgment of 24 September 1992, Series A no. 242-B, p. 23,
para. 71). The Court concludes that where a person is kept in
detention pending the determination of a criminal charge against him,
the fact of his detention is a factor to be considered in assessing
whether the requirement of a decision on the merits within a reasonable
time has been met.
The time required on both occasions for transmission of the
documents to the Supreme Court totals more than twenty-one months of
the fifty-two which it took to deal with the case. The Court finds
such protracted periods of inactivity unacceptable, especially where,
as in the present case, the accused is detained; in its opinion, they
go well beyond what can still be considered "reasonable" for the
purposes of Article 6 para. 1 (art. 6-1).
25. There has accordingly been a violation of Article 6
para. 1 (art. 6-1).
III. APPLICATION OF ARTICLE 50 (art. 50)
26. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Non-pecuniary damage
27. In respect of non-pecuniary damage, the applicant claimed
compensation to the tune of 150 Dutch guilders (NLG) for each day of
detention from 29 October 1986 - the date on which the Amsterdam Court
of Appeal gave its decision refusing to terminate or else suspend his
detention on remand (see paragraph 8 above) - until his release on
22 December 1989. This amounts to a total of 1,149 days; the applicant
thus claims a total of NLG 172,350 under this head.
The Delegate of the Commission considered this claim excessive.
The Government maintained that, in the event of the Court's
finding a violation, only the excessive length of time involved in the
second appeal on points of law would fall to be considered; since, in
the majority of cases, case-files were forwarded by Courts of Appeal
to the Supreme Court within five months, and in the instant case it had
taken some eleven months, there had been a delay of only six months.
28. The Court recalls, firstly, that it has considered the length
of time involved in the first appeal on points of law as well as the
second; secondly, that the time spent in police custody and detention
on remand - up to the day on which the Supreme Court rejected the
second appeal on points of law - was deducted from the applicant's
sentence.
Although the time during which the applicant had to wait in
detention for his case to be dealt with by the Supreme Court counted
towards his sentence, the Court accepts that he may have suffered some
frustration and anxiety. However, in the circumstances the Court is
of the opinion that the finding of a violation of Article 6 para. 1
(art. 6-1) constitutes in itself sufficient just satisfaction as
regards any non-pecuniary damage.
B. Costs and expenses
29. The applicant claimed NLG 10,901.88 minus the sums paid and
payable in legal aid in respect of the costs of legal representation
before the Commission and the Court.
The Government did not comment. For his part, the Delegate of
the Commission considered it appropriate to reimburse the applicant his
legal costs in so far as they are not covered by legal aid. The Court
agrees.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Rejects the Government's preliminary objection;
2. Holds that there has been a violation of Article 6 para. 1
(art. 6-1);
3. Holds that this judgment constitutes in itself, as regards any
non-pecuniary damage, sufficient just satisfaction for the
purposes of Article 50 (art. 50);
4. Holds that the Kingdom of the Netherlands is to pay to the
applicant, within three months, NLG 10,901.88 (ten thousand
nine hundred and one guilders and eighty-eight cents) less
FRF 8,825 (eight thousand eight hundred and twenty-five French
francs) in respect of costs and expenses.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 25 November 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar