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You are here: BAILII >> Databases >> European Court of Human Rights >> BUNKATE v. THE NETHERLANDS - 13645/88 [1993] ECHR 22 (26 May 1993) URL: http://www.bailii.org/eu/cases/ECHR/1993/22.html Cite as: [1993] ECHR 22, 19 EHRR 477, (1995) 19 EHRR 477

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In the case of Bunkate 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 F. Gölcüklü,

Mr F. Matscher,

Mr C. Russo,

Mr N. Valticos,

Mr S.K. Martens,

Sir John Freeland,

Mr G. Mifsud Bonnici,

Mr A.B. Baka,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 23 February and 20 April 1993,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 26/1992/371/445. 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 24 July 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. 13645/88) against the

Netherlands lodged with the European Commission of Human Rights ("the

Commission") under Article 25 (art. 25) on 7 March 1988 by a

Netherlands citizen, Mr Johannes Maria Clemens Bunkate. The applicant,

who had been referred to in the proceedings before the Commission as

J.B., consented to the disclosure of his full name.

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,

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 lawyer who had assisted

the applicant in the proceedings before the Commission informed the

Registrar that she was unable to establish contact with the applicant.

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 26 September 1992,

the President drew by lot, in the presence of the Registrar, the names

of the other seven members, namely Mr F. Gölcüklü, Mr F. Matscher,

Mr C. Russo, Mr N. Valticos, Sir John Freeland, Mr G. Mifsud Bonnici

and Mr B. Repik (Article 43 in fine of the Convention and

Rule 21 para. 4) (art. 43). With effect from 1 January 1993

Mr A.B. Baka, substitute judge, replaced Mr Repik, whose term of office

had come to an end owing to the dissolution of the Czech and Slovak

Federal Republic (Articles 38 and 65 para. 3 of the Convention and

Rules 22 para. 1 and 24 para. 1) (art. 38, art. 65-3) .

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 and the Delegate of the Commission on the organisation

of the procedure.

5. On 5 January 1993 the Government notified the Registrar that in

the light of the Court's judgment in the case of Abdoella v. the

Netherlands (25 November 1992, Series A no. 248-A) they did not wish

to proceed with the instant case (Rule 49 para. 1).

By a letter received at the registry the same day, the

applicant's lawyer informed the Registrar that she had re-established

contact with her client and had been designated as his representative

(Rule 30 para. 1).

By letter of 15 January 1993 the Secretary to the Commission

informed the Registrar that the Commission was of the opinion that the

Court should proceed to give judgment in the case.

On 19 January 1993 the Government indicated to the Registrar

that they and the applicant had been unable to reach a friendly

settlement. The applicant's claim under Article 50 (art. 50) was

received at the registry on 22 January 1993; on 8 February 1993 the

Government filed a document in reply.

6. On 23 February 1993 the Chamber decided to dispense with a

hearing having satisfied itself that the conditions for such a

derogation from the usual procedure had been met (Rules 26 and 38).

AS TO THE FACTS

I. The particular circumstances of the case

7. The applicant is a Netherlands citizen born in 1949. He lives

in The Hague.

8. On 12 September 1983 the applicant was arrested in The Hague on

suspicion of having committed forgery. He was placed in detention on

remand until 16 December 1983, on which date the Public Prosecutor

(Officier van Justitie) ordered his release on the ground of a shortage

of cells then existing in the Netherlands.

9. The applicant was tried by the Regional Court

(Arrondissementsrechtbank) of The Hague on 22 December 1983. On

5 January 1984 that court sentenced him to one year's imprisonment on

two counts of forgery. Both the Public Prosecutor and the applicant

filed an appeal the same day. The applicant was allowed to remain at

liberty pending the appeal.

10. Two days after the judgment of the Regional Court, on

7 January 1984, the applicant travelled to the Dominican Republic where

he stayed for some eleven months. While there he had a death

certificate in his own name issued by the competent Dominican

authorities; this document was dated 28 April 1984. The applicant's

death was registered in The Hague on 18 May 1984.

11. The applicant returned to the Netherlands on 19 November 1984.

On 3 December 1984 his mother applied to the Regional Court of The

Hague for a court order to delete the entry of his death from the

register. On 2 October 1985 such a court order was given and the said

entry was deleted on 25 June 1986.

12. The appeal against the judgment of the Regional Court of

5 January 1984 (see paragraph 10 above) was heard by the Court of

Appeal (Gerechtshof) of The Hague on 14 May 1985 in the presence of the

applicant. On 28 May 1985 the Court of Appeal found the applicant

guilty of only one count of forgery and acquitted him of the other;

nevertheless, it increased the sentence to one year and four months.

13. The applicant introduced an appeal on points of law to the

Supreme Court (Hoge Raad) on 10 June 1985, within the time-limit of two

weeks prescribed by Netherlands law, by means of a statement made at

the registry of the Hague Court of Appeal. The registry of the Court

of Appeal transmitted the case file to the registry of the Supreme

Court, which received it on 23 September 1986. The hearing of the

Supreme Court was set for 17 February 1987.

The applicant's counsel proposed two grounds of appeal. The

first argued that since at the time of the hearing of the Court of

Appeal the registration of the applicant's death had not yet been

deleted, the applicant was not then officially alive and the

prosecution should therefore have been held inadmissible. The second

was a complaint about violation of Article 6 para. 1 (art. 6-1) of the

Convention, in that, firstly, the transmission of the case file by the

registry of the Court of Appeal to the Supreme Court had taken

excessively long and, secondly, the acts for which the applicant was

still being prosecuted had been committed nearly five years before.

Applicant's counsel claimed to have inquired often as to the date on

which the hearing was to take place.

14. 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 26 May 1987. It held, firstly, that the

registration of the applicant's death did not preclude the Court of

Appeal from allowing the prosecution in view of the applicant's

presence at the hearing and, secondly, that the lapse of time between

the filing of the appeal on points of law and the hearing of the

Supreme Court was undesirably long but not unreasonably so for the

purpose of Article 6 para. 1 (art. 6-1). The Supreme Court further

observed, inter alia, that although the applicant's counsel had

inquired after the date of the hearing, she had not asked for that date

to be brought forward.

15. The applicant served his sentence from 29 August 1990 until

18 May 1991 when he was provisionally released.

II. Relevant domestic law and practice

16. For a survey of the relevant domestic law and practice,

reference is made to the judgment in the case of Abdoella v. the

Netherlands of 25 November 1992, Series A no. 248-A, pp. 10-14,

paras. 11-14.

PROCEEDINGS BEFORE THE COMMISSION

17. Mr Bunkate introduced his application to the Commission on

24 November 1987. He complained of the duration of the proceedings

against him, especially with regard to the period between the judgment

of the Court of Appeal and that of the Supreme Court. He relied on

Article 6 para. 1 (art. 6-1) of the Convention.

On 8 July 1991 the Commission declared the application

(no. 13645/88) admissible. In its report of 1 April 1992 (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-B 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. AS TO WHETHER THE CASE SHOULD BE STRUCK OUT OF THE LIST

18. By letter of 4 January 1993, the Government, being the party

which had brought the case before the Court, notified the Registrar of

their intention not to proceed with the case in view of the judgment

in the case of Abdoella v. the Netherlands.

Pursuant to Rule 49 para. 1 of the Rules of Court, the Court,

through the Registrar, consulted the applicant and the Commission on

the appropriateness of discontinuing the case.

The applicant did not comment.

The Commission, in its letter of 15 January 1993, expressed the

opinion

"... that the Court should proceed to give judgment in the case

and to fix the amount of just satisfaction under Article 50

(art. 50) of the Convention. If the case were to be struck off

there would be no formal decision in the case and the applicant

would not be able to receive any just satisfaction to which, in

the Commission's opinion, he is entitled.

..."

19. In the present case there has been no friendly settlement,

arrangement or other fact of a kind to provide a solution of the

matter, so that Rule 49 para. 2 is inapplicable. As to

Rule 49 para. 1, the Court agrees with the Commission that the

applicant's entitlement to a formal and binding decision on the merits

and as to just satisfaction, if any, overrides any interest the

Government may have in discontinuance of the case. Accordingly, the

Court decides not to strike the case out of its list.

II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)

20. 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 part 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.

21. The period to be taken into consideration began on

12 September 1983, the date of the applicant's arrest, and ended on

26 May 1987, the date of the decision of the Supreme Court by which the

sentence of sixteen months' imprisonment became final.

However, the period from 7 January 1984 until 19 November 1984,

during which the applicant was in the Dominican Republic and thus

effectively out of reach of the Netherlands authorities, should be

deducted from the overall period (see particularly the Girolami v.

Italy judgment of 19 February 1991, Series A no. 196-E, p. 55,

para. 13).

22. 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.

The case was not particularly complex.

The applicant directed no particular complaint against the

proceedings before the Regional Court and the Court of Appeal.

However, although the applicant filed his appeal on points of law on

10 June 1985, the registry of the Supreme Court did not receive the

case file from the Court of Appeal until 23 September 1986. For this

lapse of time, spanning fifteen and a half months, the Government have

offered no satisfactory explanation.

23. 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.

The Court cannot accept a period of total inactivity lasting for

fifteen and a half months. There has accordingly been a violation of

Article 6 para. 1 (art. 6-1).

III. APPLICATION OF ARTICLE 50 (art. 50)

24. The applicant sought no reimbursement for costs incurred before

the Strasbourg institutions, before which he received legal aid.

However, he claimed non-pecuniary damages in respect of unjust

imprisonment to the tune of 150 Dutch guilders (NLG) for each of the

263 days that he served his sentence, that is NLG 39,450.

He also claimed pecuniary damages: firstly, a sum of

NLG 1,062.50 in connection with proceedings against the State of the

Netherlands for an injunction prohibiting execution of the prison

sentence pending the Strasbourg proceedings and, secondly, a sum of

NLG 750 for travel expenses incurred during home leave from prison.

His total claim thus came to NLG 41,262.50; this figure he

rounded to NLG 40,000 for convenience.

The Government pointed out that the fact that a delay arose in

hearing the case did not imply that the applicant was wrongly

imprisoned.

25. The applicant's claims are based on the assumption that a

finding by the Court that a criminal charge was not decided within a

reasonable time automatically results in the extinction of the right

to execute the sentence and that consequently, if the sentence has

already been executed when the Court gives judgment, such execution

becomes unlawful with retroactive effect.

That assumption is, however, incorrect. The Court is unable to

discern any other basis for the claims and will therefore dismiss them.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Decides not to strike the case out of its list of cases;

2. Holds that there has been a violation of Article 6 para. 1

(art. 6-1) of the Convention;

3. Rejects the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing

in the Human Rights Building, Strasbourg, on 26 May 1993.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar