C. v. the Netherlands



AS TO THE ADMISSIBILITY OF

Application No. 19139/91

by J.C.

against the Netherlands

The European Commission of Human Rights sitting in private on 30

March 1992, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

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 19 November 1991

by J.C. against the Netherlands and registered on 28 November 1991

under file No. 19139/91;

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 is a Moroccan citizen, born in 1968 and residing

at Nijmegen, the Netherlands. He is represented before the Commission

by Mr. E.Th. Hummels, a lawyer practising at Utrecht.

The facts as presented by the applicant may be summarised as

follows.

On 24 August 1991 at 20.00 hours, the applicant was arrested as

being suspected of theft perpetrated with violence and threats. On 25

August 1991 at 11.00 hours, he was brought before the public

prosecutor, who ordered his provisional detention

(inverzekeringstelling). On 28 August 1991 at about 15.00 hours, he

was heard by the investigating judge (rechter-commissaris) at the

Regional Court (Arrondissementsrechtbank) of Utrecht, which ordered the

applicant's further detention (bevel tot bewaring). The applicant's

request to be set free on the ground that the public prosecutor's

request for his further detention had been made more than three days

after his own order for provisional detention, this being contrary to

certain guidelines issued on 22 March 1989 by the Advocate-General, was

rejected by the investigating judge.

On 3 September 1991, the Regional Court of Utrecht issued an

order for the applicant's detention on remand (bevel gevangenhouding)

for a period of 30 days. The applicant's objection based on failure

to respect the time-limit indicated in the guidelines of the Advocate-

General was rejected by the Regional Court. On 3 October 1991, the

Regional Court prolonged the applicant's detention on remand for a

further period of 30 days.

COMPLAINT

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 24 August 1991.

THE LAW

The applicant complains that, following his arrest on 24 August

1991, he was not brought promptly before a judge as required by Article

5 para. 3 (Art. 5-3) of the Convention.

The Commission notes that the applicant was arrested on 24 August

1991 at 20.00 hours and was brought before the investigating judge on

28 August 1991 at about 15.00 hours. Consequently, the time between

the arrest and the moment when he was brought before a judge was about

91 hours.

In its previous case-law, the Commission has considered that a

period of four days in cases concerning ordinary criminal offences

could be considered compatible with the requirement of promptness in

Article 5 para. 3 (Art. 5-3) (No. 2894/66, Yearbook 9 p. 568, and Case

of Brogan and others v. the United Kingdom, Comm. Rep. 14.5.87). In

a recent case (No. 18090/91, Dec. 4.7.91, unpublished), the Commission

accepted a period of between 72 and 73 hours as being in conformity

with Article 5 para. 3 (Art. 5-3).

The Commission further notes that, in the case of Brogan and

others, the European Court of Human Rights stated that it was not

called upon to determine "whether in an ordinary criminal case any

given period, such as four days, in police or administrative custody

would as a general rule be capable of being compatible with the first

part of Article 5 para. 3 (Art. (5-3)" (Eur. Court H.R. judgment

29.11.1988, para. 60). The Court considered, however, that in that

particular case, even the shortest of the periods of detention at

issue, namely four days and six hours, was too long to comply with

Article 5 para. 3 (Art. 5-3) (same judgment, para. 62).

While emphasising the importance of keeping the period of

detention prior to the first appearance before a judge as short as

possible, the Commission accepts, having regard to its previous case-

law, that in the present case the applicant was brought promptly before

a judge and that there has not been any violation of Article 5 para.

3 (Art. 5-3) of the Convention.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)