CASE OF BAYDAR v. THE NETHERLANDS
No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
7. The applicant was born in 1968 and lives in Apeldoorn. 8. In a judgment of 29 October 2008, the Zutphen Regional Court (rechtbank) convicted the applicant of the transportation of 2,800 grams of heroin and of seven counts of people trafficking (mensensmokkel) as defined in Article 197a of the Criminal Code (Wetboek van Strafrecht), committed jointly with other perpetrators. It sentenced him to a partially suspended term of 40 months’ imprisonment. 9. Both the applicant and the prosecution appealed against the Regional Court’s judgment. 10. On 19 July 2011 the Arnhem Court of Appeal (gerechtshof) gave its judgment, upholding the conviction for the offence of transporting heroin and also of four counts of people trafficking, and acquitting him on the three other counts. It sentenced him to 40 months’ imprisonment less the time spent in pre-trial detention. Based on the evidence submitted, the Court of Appeal found established that the applicant and his co-perpetrators had, for purposes of financial gain, between 10 November 2006 and 17 January 2007 facilitated the unauthorised residence of a total of 20 Iraqi migrants in the Netherlands, Germany and Denmark. 11. The applicant lodged an appeal in cassation (cassatie), the scope of which is limited to procedural conformity and points of law, with the Supreme Court (Hoge Raad). In his written grounds of appeal of 8 August 2013, the applicant raised, inter alia, a complaint regarding the four counts of people trafficking of which he had been convicted by the Court of Appeal. The applicant contended that the Court of Appeal had convicted him of facilitation of unauthorised “residence”, as defined in Article 197a § 2 of the Criminal Code, whereas the evidence relied on by the Court of Appeal to uphold that conviction did not prove that the Iraqi migrants had had “residence” in the Netherlands, Germany or Denmark. Instead, the evidence demonstrated that the applicant had organised and financed the Iraqi migrants’ transportation to Denmark via the Netherlands and Germany, which had been intercepted on each occasion in Germany. As the migrants’ stay in the Netherlands and Germany had only been brief and transitory, and given that they had never even entered Denmark, there was, according to the applicant, no proof of “residence” in those countries. In that regard, the applicant referred to European Union law, namely Council Directive 2002/90/EG of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (hereinafter “the Directive”) and Council Framework Decision 2002/946/JBZ of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence (hereinafter “the Framework Decision”). Submitting that Article 197a of the Criminal Code had been amended in order to implement the Directive, the applicant argued that the notion of the facilitation of unauthorised “residence” within the meaning of Article 197a § 2 should be understood as entailing a long-term stay, to be distinguished from “transit” or “entry” as defined in the first paragraph of Article 197a, which had been added to Article 197a when the Directive was implemented. The applicant’s grounds of appeal in cassation did not include a request that the Supreme Court put a question to the CJEU for the purpose of obtaining a preliminary ruling. 12. In his advisory opinion of 10 December 2013, the Advocate General (advocaat-generaal) to the Supreme Court expressed his view that the applicant’s appeal should be dismissed with the exception of the first of the grounds of the appeal, which pertained to the length of the proceedings: the duration of the cassation proceedings had exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention, for which a reduction of sentence was to be applied. With regard to the applicant’s complaint that the evidence did not show that there had been any “residence” of the migrants in the countries at issue, the Advocate General was of the opinion that Article 197a § 2 of the Criminal Code called for a broad interpretation of “residence”, as had been the case prior to the implementation of the Directive and the Framework Decision. Since that implementation was intended to broaden the scope of Article 197a of the Criminal Code, the second paragraph of that provision retained its broad meaning of “residence”, thereby encompassing “transit”. The separate penalisation in the first paragraph of Article 197a of the facilitation of unauthorised “transit and entry” did not change the broad scope of paragraph 2. The Advocate General thus concluded that the applicant’s complaint in this matter should be dismissed. 13. On 24 December 2013, the applicant submitted written comments in reply to the Advocate General’s advisory opinion (a so-called “Borgers letter”) in which he made a tentative request for questions to be referred to the CJEU for a preliminary ruling about the interpretation of “residence”, “entry” and “transit” within the context of the Directive and whether the Directive contained minimum rules or constituted a general framework of terms, if the Supreme Court were to concur with the Advocate General. 14. On 4 March 2014 the Supreme Court gave its judgment, which read: “[the applicant’s counsel] have submitted written grounds of appeal. That document is annexed to this judgment, of which it is a component part. The Advocate General [...] has advised that the impugned judgment be quashed − but only as regards the prison sentence imposed, reducing it due to the violation of the right to adjudication within a reasonable time − and that the remainder of the appeal be dismissed. Counsel [for the applicant] have submitted a written reply.” 15. The Supreme Court went on to hold that the applicant’s complaint that the cassation proceedings had exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention was well-founded and that the sentence imposed on the applicant should be reduced as a consequence thereof. The Supreme Court further considered: “4. Assessment of the remaining grievances The grievances cannot lead to cassation [of the impugned judgment] (de middelen kunnen niet to cassatie leiden). Based on section 81 (1) of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie), this requires no further reasoning as the grievances do not give rise to the need for a determination of legal issues in the interests of legal uniformity or legal development.” 16. The Supreme Court thus quashed the Court of Appeal’s judgment as regards the imposed sentence, reduced the sentence to 34 months’ imprisonment, and dismissed the remainder of the grounds of appeal. No further appeal lay against the Supreme Court’s judgment.