Přehled
Rozhodnutí
AS TO THE ADMISSIBILITY OF
Application No. 15243/89
by V.A.
against the Netherlands
The European Commission of Human Rights sitting in private on 11
May 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, 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 3 April 1989 by
V.A. against the Netherlands and registered on 20 July 1989 under file
No. 15243/89;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1951, has the Turkish and Cypriot
nationality. He is currently detained in Amsterdam. Before the
Commission he is represented by Mr. H.F.M. Struycken, a lawyer
practising in Amsterdam.
The facts, as submitted by the parties, may be summarised as
follows.
The applicant was arrested on 16 October 1986 on suspicion of
having committed certain drug offences contrary to the Dutch Opium Act
and subsequently detained in police custody (inverzekeringstelling).
On 20 October 1986, the applicant, in the presence of his lawyer, was
brought before the investigating judge (rechter-commissaris), who
orally informed him of the charges against him, heard the applicant and
subsequently ordered his detention on remand (inbewaringstelling).
Against this decision no appeal is possible. The detention was
subsequently regularly prolonged.
By summons of 15 January 1987, the applicant was ordered to
appear before the Regional Court (Arrondissementsrechtbank) of
Amsterdam on the following charges (tenlastelegging):
<Translation>
"The suspect is being charged with having, at one or more
points in time between 1 January 1986 and 16 October 1986
inclusive, in Amsterdam, in any event in the Netherlands,
together and in association with others or another, in any
event alone (repeatedly) intentionally imported into the
territory of the Netherlands within the meaning of Article
1 para. 4 of the Opium Act, a quantity of heroin
(diacetylmorphine), in any event (repeatedly) a product as
meant in Article 1 para. 1 sub d of the Opium Act, as
mentioned on the list I belonging to this Act."
By judgment of 25 March 1987, the Regional Court convicted the
applicant and sentenced him to six years' imprisonment with deduction
of the time spent in pre-trial custody.
The applicant filed an appeal against this judgment with the
Court of Appeal (Gerechtshof) of Amsterdam. During the hearing of 27
October 1987 before the Court of Appeal, the applicant's lawyer orally
addressed the Court and subsequently submitted a copy of the notes, on
the basis of which he made his oral pleading, to the Court. These
notes, inter alia, read:
<Translation>
"Hardly made investigation to acts committed in the
Netherlands or Amsterdam - referral back to Investigating
Judge / interrogation Zeliha."
In its judgment of 10 November 1987, the Court of Appeal upheld
the Regional Court's conviction, yet increased the sentence with one
year to seven years' imprisonment with deduction of the time spent in
pre-trial custody.
The applicant's subsequent appeal to the Supreme Court (Hoge
Raad) was rejected by judgment of 14 March 1989. With respect to the
applicant's complaint that the charges were insufficiently detailed,
the Supreme Court held that the charges were in conformity with Dutch
law. Insofar as the applicant complained that the Court of Appeal, by
rephrasing a certain police statement (politie proces-verbaal) from:
<Translation>
"When I was in Istanbul with M., M. told me that V., who at
that time was also in Istanbul, would arrange cars, that
would come to Amsterdam with heroin"
to:
<Translation>
"When I was with M in Istanbul, he told me that V., who was
also in Istanbul, would arrange car transports with heroin
to Amsterdam."
in its judgment, had based its conviction on a statement not raised
during the trial, the Supreme Court held that the rephrasing did not
distort the statement.
On the applicant's complaint that the Court of Appeal had failed
to decide on his request to hear Mrs. Zeliha as a witness as mentioned
in the notes on his oral pleadings, the Supreme Court held that the
Court of Appeal did not have to consider the invoked passage in the
lawyer's notes as a formal request.
The applicant also complained under Article 6 para. 1 of the
Convention, that an undue delay had been caused, as, despite several
requests by the applicant's lawyer to do so speedily, the Registrar of
the Court of Appeal sent the judgment of 10 November 1987 only on 5
July 1988 to the Supreme Court. The Supreme Court considered, that,
although the Registrar of the Court of Appeal had exceeded the time-
limit contained in Article 433 para. 3 of the Code of Penal Procedure
considerably, the period between 10 November 1987 and 5 July 1988 was
not such as to justify the conclusion that the "reasonable time" had
been exceeded, or that there had been an unreasonable delay within the
meaning of Article 6 para.1 of the Convention.
COMPLAINTS
1. The applicant complains of a violation of Article 5 para. 3 of
the Convention in that he was not brought promptly before a judge after
his arrest on 16 October 1986. The applicant submits that, as there is
no appeal possible against the investigating judge's decision of 20
October 1986 to detain him on remand, there was no guarantee that his
rights under Article 5 para. 3 would be respected by the investigating
judge in this decision.
2. The applicant complains under Article 5 para. 2 and Article 6
para. 3 (a) and (c) of the Convention that at the time of his arrest
he was not promptly informed of the reasons for his arrest and of the
accusation against him. He also complains that the investigating judge
only informed him orally and in a quite brief and vague way of the
charges against him.
3. The applicant complains under Article 6 para. 3 (a) of the
Convention that the charges against him were insufficiently detailed
as they only contained the legal qualification but no factual
description of the acts held against him. The applicant complains that
therefore he could not prepare his defence in a satisfactory manner.
4. The applicant complains under Article 6 para. 3 (d) of the
Convention that the Court of Appeal did not consider his request for
a further investigation and for the hearing of a particular witness.
5. The applicant complains under Article 6 para. 1 of the Convention
that he did not receive a fair trial, as the Court of Appeal, by having
rephrased a certain police statement, used as evidence in its judgment,
based its conviction on a statement which was not raised during the
trial.
6. The applicant complains under Article 3 of the Convention that
the delay caused by the Registrar of the Court of Appeal resulted in
unbearable tensions as to the final outcome of the criminal proceedings
against him and that, pending the appeal proceedings, he remained
detained in custody which entails a more stringent regime than
detention in a prison after conviction.
7. The applicant complains under Article 6 para. 1 of the Convention
that his case-file was sent to the Supreme Court more than seven months
after the date of the Court of Appeal's judgment, thereby causing an
unnecessary delay in the proceedings.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 April 1989 and registered on
20 July 1989.
On 5 November 1990 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the application
limited to the issues under Article 5 para. 3 and Article 6 para. 1 of
the Convention.
The Government submitted the observations on 28 March 1991 and
the applicant's observations in reply were submitted on 10 June 1991.
Legal aid under the Addendum to the Commission's Rules of
Procedure was granted to the applicant on 18 October 1991.
THE LAW
1. The applicant complains of a violation of Article 5 para. 3
(Art. 5-3) of the Convention in that he was not brought promptly before
a judge after his arrest on 16 October 1986. The applicant submits
that, as there is no appeal possible against the investigating judge's
decision of 20 October 1986 to detain him on remand, there was no
guarantee that his rights under Article 5 para. 3 (Art. 5-3) would be
respected by the investigating judge in this decision.
Article 5 para. 3 (Art. 5-3) of the Convention, insofar as
relevant, reads as follows:
"Everyone arrested or detained (...) shall be brought promptly
before a judge or other officer authorised by law to exercise
judicial power (...)."
The Commission notes that the applicant was arrested on 16
October 1986 and that on 20 October 1986 he was brought before the
investigating judge, who ordered the applicant's detention on remand.
However, even assuming that the applicant is correct in his
allegation that in this respect he had no remedy under Dutch law, the
Commission is not required to decide whether or not the facts alleged
by the applicant disclose any appearance of a violation of this
provision, as Article 26 (Art. 26) of the Convention provides that the
Commission "may only deal with the matter (...) within a period of six
months from the date on which the final decision was taken".
In the present case the decision of the investigating judge,
which was the final decision in this respect, was given on 20 October
1986, whereas the application was submitted to the Commission on 3
April 1989, that is more than six months after the date of this
decision. Furthermore, an examination of the case does not disclose the
existence of any special circumstances which might have interrupted or
suspended the running of that period.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
2. The applicant complains under Article 5 para. 2 and Article 6
para. 3 (a) and (c) (Art. 5-2, 6-3-a, 6-3-c) of the Convention that at
the time of his arrest he was not promptly informed of the reasons for
his arrest and of the accusation against him. He also complains that
the investigating judge only informed him orally and in a quite brief
and vague way of the charges against him.
However, the Commission is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of this provision as, under Article 26 (Art. 26) of the
Convention, it may only deal with a matter after all domestic remedies
have been exhausted according to the generally recognised rules of
international law.
The mere fact that the applicant has submitted his case to the
various competent courts does not of itself constitute compliance with
this rule. It is also required that the complaint made before the
Commission must have been raised, either in form or substance, before
the national authorities. In this respect the Commission refers to its
established case-law (cf. No. 5574/72, Dec. 21.3.75, D.R. 3 p. 10; No.
10307/83, Dec. 6.3.84, D.R. 37 p. 113; No. 11244/84, Dec. 2.3.87, D.R.
55 p. 98).
In the present case the applicant failed to raise, either in form
or substance, in the proceedings on his detention on remand or during
his subsequent trial, the complaint he now formulates before the
Commission. Moreover, an examination of the case as it has been
submitted does not disclose the existence of any special circumstances
which might have absolved the applicant, according to the generally
recognised rules of international law, from raising his complaint in
the proceedings on his detention on remand.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies and his application must in
this respect be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
3. The applicant complains that the charges against him were
insufficiently detailed, as they only contained the legal qualification
but no factual description of the acts with which he was charged and
that, therefore, he could not prepare his defence in a satisfactory
manner. The applicant invokes Article 6 para. 3 (a) (Art. 6-3-a) of
the Convention, which provides, insofar as relevant:
"3. Everyone charged with a criminal offence has the
following minimum rights:
a. to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
accusation against him;
(...)."
The Commission recalls that it has consistently held that Article
6 para. 3 (a) (Art. 6-3-a) gives an accused person the right to be
informed of the cause of the accusation, i.e. the acts with which he
is charged and on which his indictment is based, and of the nature of
the accusation, i.e. the legal qualification of the acts in question.
In addition, because of the logical link between paragraphs 3 (a) and
3 (b) of Article 6 (Art. 6-3-a, 6-3-b), the information about the
nature and cause of the accusation must be adequate to enable the
accused to prepare his defence accordingly (cf. No. 10857/84, Dec.
15.7.86, D.R. 48 p. 106).
The Commission observes that the applicant was informed orally
of the charges against him by the investigating judge on 20 October
1986 and that these charges were repeated in the summons of 15 January
1987, which indicate both the acts with which the applicant was charged
and their legal qualification.
The Commission is therefore of the opinion that the applicant
was, for the purpose of Article 6 para. 3 (a) (Art. 6-3-a), promptly
and in detail informed of the nature and cause of the accusation
against him.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicant complains under Article 6 para. 3 (d)
(Art. 6-3-d) of the Convention that the Court of Appeal did not
consider his request for a further investigation and for the hearing
of a particular witness.
Article 6 para. 3 (d) (Art. 6-3-d) reads as follows:
"Everyone charged with a criminal offence has the following
minimum rights:
(...)
d. to examine or have examined witnesses against him and to
obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him."
The applicant submits that a statement by Mrs. Zeliha was of
crucial importance in order to establish the veracity of the statement
by the applicant's co-accused, who was heard as a witness.
The Commission first recalls that Article 6 para. 3 (d)
(Art. 6-3-d) does not grant the accused an unlimited right to secure
the appearance of witnesses in court. It is normally for the national
courts to decide whether it is necessary or advisable to call a witness
(cf. No. 10563/83, Dec. 5.7.85, D.R. 44 p. 113 and Eur. Court H.R.,
Bricmont judgment of 7 July 1989, Series A no. 158, para. 89).
The Commission notes that the Court of Appeal based its
conviction on statements by the applicant himself and several other
persons and that the applicant was given the opportunity to contest
these statements.
The Commission considers that the information submitted by the
applicant does not show that the witness whom he wanted examined could
have submitted any further information relevant to the determination
of the issue in question.
In these circumstances an examination of the facts complained of
does not disclose to the Commission any appearance of a violation of
the right guaranteed to the applicant by Article 6 para. 3 (d)
(Art. 6-3-d) of the Convention.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
5. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that he did not receive a fair trial, as the Court of
Appeal, by having rephrased a certain police statement used as evidence
in its judgment of 10 November 1987, based its conviction on a
statement which was not, as such, raised during his trial.
Article 6 para. 1 (Art. 6-1), insofar as relevant, provides as
follows:
"1. In the determination (...) of any criminal charge
against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal established by law. (...)."
With regard to the judicial decision of which the applicant
complains, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with a complaint alleging that
errors of law or fact have been committed by domestic courts, except
where it considers that such errors might have involved a possible
violation of any of the rights and freedoms set out in the Convention.
The Commission refers, on this point, to its established case-law (see
e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71,
Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R.
18 pp. 31, 45).
It is true that in this case the applicant complains that he
is convicted on a statement which was not, as such, raised during his
trial before the Court of Appeal. In this connection he alleges a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
However, the Commission notes in this respect that the Supreme
Court considered that the Court of Appeal did not distort the police
statement in rephrasing it in its judgment.
The Commission further notes that the applicant has been enabled
to challenge this and other statements used as evidence before the
respective national courts. In these circumstances the Commission does
not find it established that the applicant's hearing in this respect
was unfair and it does not, therefore, constitute a violation of the
Convention.
The Commission finds no indication that the criminal proceedings
against the applicant were otherwise unfair.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
6. The applicant complains that his rights under Article 3 (Art. 3)
of the Convention have been violated as the delay caused by the
Registrar of the Court of Appeal resulted in unbearable tensions as to
the final outcome of the criminal proceedings against him and as,
pending the appeal proceedings, he remained detained in custody which
entails a more stringent regime than detention in a prison after
conviction.
Article 3 (Art. 3) of the Convention provides as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission, referring to its reasoning under point 2.,
considers that the applicant also in this respect has failed to exhaust
domestic remedies. It follows that the complaint in this respect must
also be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
7. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that his case-file was sent to the Supreme Court more than
seven months after the date of the Court of Appeal's judgment, thereby
causing an unnecessary delay in the proceedings.
The Government subscribe to the finding of the Supreme Court,
that the delay complained of was not such as to justify the conclusion
that the "reasonable time" had been exceeded or that there had been an
unreasonable delay within the meaning of Article 6 para. 1 (Art. 6-1)
of the Convention.
Under the case-law on this subject of the Convention organs, the
Commission finds that the period to be considered lasted from the
applicant's arrest on 16 October 1986 to 14 March 1989 when the Supreme
Court rejected the applicant's appeal in cassation, the total length
thus being 2 years and nearly 5 months (cf. Eur. Court H.R., Ferraro
judgment of 19 February 1991, Series A no. 197A, para. 15).
The Commission recalls that the reasonableness of the length of
proceedings is to be assessed in the light of the particular
circumstances of the case with the help of the following criteria: the
complexity of the case, the conduct of the parties and the conduct of
the authorities dealing with the case (cf. Eur. Court H.R., Kemmache
judgment of 27 November 1991, Series A no. 218 to be published, para.
60 with further reference).
The Commission notes that the Registrar of the Court of Appeal
forwarded the case-file to the Supreme Court more than 7 months after
the Court of Appeal's decision of 10 November 1987, whilst under Dutch
law he was obliged to do so within a period of, at most, 54 days.
The Commission, having regard to the parties' submissions under
Article 6 para. 1 (Art. 6-1) of the Convention concerning the length
of the proceedings, considers that this complaint raises an issue of
fact and law which can only be resolved by an examination of the
merits. This part of 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 ADMISSIBLE, without prejudging the merits of
the case, the applicant's complaint under Article 6 para. 1
(Art. 6-1) of the Convention concerning the length of the
proceedings;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)