CASE OF BUNKATE v. THE NETHERLANDS
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed
C. Russo;John Freeland;N. Valticos
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. 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.