VAN DER ZWAN proti Nizozemsku

FOURTH SECTION

DECISION

Application no. 27231/19
Peter VAN DER ZWAN
against the Netherlands

The European Court of Human Rights (Fourth Section), sitting on 22 April 2025 as a Committee composed of:

Faris Vehabović, President,
Jolien Schukking,
Lorraine Schembri Orland, judges,
and Simeon Petrovski, Deputy Section Registrar,

Having regard to:

the application (no. 27231/19) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 17 May 2019 by a Dutch national, Mr Peter Van der Zwan (“the applicant”), who was born in 1961, lives in Voorburg and was represented by Mr Jebbink, a lawyer practising in Amsterdam;

the decision to give notice of the complaint under Article 7 § 1 of the Convention to the Government of the Kingdom of the Netherlands (“the Government”), represented by their Agent, Ms B. Koopman, of the Ministry of Foreign Affairs;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the application of an amended practice of the Supreme Court concerning the use of its competence to examine ex officio whether the statute of limitations has expired. The applicant relies on Article 7 § 1 of the Convention.

2. Following a conviction by the Roermond Regional Court of 2012, on 24 April 2017, the ‘s-Hertogenbosch Court of Appeal convicted the applicant of embezzlement and violation of a regulation of the Credit System Oversight Act (Wet toezicht kredietwezen) and sentenced him to thirty months’ imprisonment, six months of which were suspended pending a probation period of two years.

3. At no point during the proceedings did the applicant argue that the prosecution of either of the offences had become time-barred under the applicable statute of limitations. Similarly, in the written statement (cassatieschriftuur) setting out his ground of appeal on points of law (cassatiemiddel) before the Supreme Court, submitted on 4 April 2018, the applicant did not raise this issue.

4. In his advisory opinion of 6 November 2018, the Advocate General at the Supreme Court concluded that the applicant’s ground of appeal on points of law failed. He further observed that the second offence of which the applicant had been convicted had become time-barred on 29 July 2016. The Advocate General noted that in a recent judgment of 30 October 2018 the Supreme Court had changed its practice of applying the statute of limitations ex officio, holding that in future cases it would use its competence to examine and apply it ex officio only when the statute of limitations had expired after the submission of the grounds for appeal on points of law. It was so because at that point it would be impossible for a defendant to raise this issue. Given that recent judgment, the Advocate General concluded that the Supreme Court would not apply the rules on the limitation periods ex officio in the instant case.

5. In his response to the Advocate General’s advisory opinion, the applicant argued that since the change in the Supreme Court’s practice had not been foreseeable and no transitional period had been established, his rights under Article 7 of the Convention would be violated if the Supreme Court in his case would not continue to apply its previous practice.

6. On 18 December 2018 the Supreme Court rejected the applicant’s appeal on points of law. It confined the examination and the reasoning in its judgment to the ground of appeal raised by the applicant in the written statement and explained why this ground was not successful.

7. The applicant complains that the change of the Supreme Court’s practice, introduced by its judgment of 30 October 2018, was not foreseeable and, since no transitional period was included, had detrimentally affected his situation, in violation with Article 7 of the Convention.

THE COURT’S ASSESSMENT

8. The parties disagree on whether Article 7 of the Convention was applicable.

9. The Government submitted that Article 7 was not applicable to the present case because provisions relating to the statute of limitations are of a procedural nature and cannot be regarded as substantive criminal law. The applicant argued that Article 7 should be construed and applied, as followed from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment. He relied on Antia and Khupenia v. Georgia (no. 7523/10, § 42, 18 June 2020).

10. The general principles concerning the requirements of legal certainty and foreseeability under Article 7 of the Convention have been summarised in Del Río Prada v. Spain ([GC], no. 42750/09, §§ 77-93, ECHR 2013). The Court reiterates that Article 7 is not confined to prohibiting the retrospective application of criminal law to an accused’s disadvantage. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege – see ibid., § 78; Coëme and Others v. Belgium, nos. 32492/96 and 4 others, § 145, ECHR 2000-VII). Article 7 also precludes the revival of a prosecution in respect of an offence that has become time-barred (see Advisory opinion on the applicability of statutes of limitation to prosecution, conviction and punishment in respect of an offence constituting, in substance, an act of torture [GC], request no. P16-2021-001, Armenian Court of Cassation, § 77, 26 April 2022). The Court further reiterates that it has classified domestic rules on limitation periods as procedural laws, insofar as they do not define offences and penalties and can be construed as laying down a simple precondition for the assessment of the case (see Orlen Lietuva Ltd. v. Lithuania, no. 45849/13, § 97, 29 January 2019).

11. Turning to the present case, the Court observes that it is not in dispute that the acts committed by the applicant constituted a criminal offence at the time when it was committed, and that the penalty imposed was not heavier than those applicable at the material time. The Court further observes that the applicant has not made any submissions before any judicial instance in respect of the expiry of the statute of limitations, nor does the applicant’s complaint before the Court relate to a finding of a domestic court regarding the statute of limitation (see by contrast Antia and Khupenia, cited above, §§ 10-15 and 40). The applicant’s complaint regarding the change of the Supreme Court’s practice concerns a procedural issue, namely under which circumstances it retained its competence to examine ex officio whether the statute of limitations had expired. The Court considers that the Supreme Court’s decision to limit its ex officio examination on whether the prosecution had become time-barred to the period after the defendant had submitted his or her grounds for appeal on points of law to the Supreme Court and before the delivery of its judgment, does not result in a revival of the prosecution and cannot be regarded to concern substantive criminal law. Moreover, the applicant did not demonstrate that the Supreme Court’s new practice pertained to the definition of the offence or penalty.

12. In the light of the foregoing the Court concludes that the applicant’s complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 May 2025.

Simeon Petrovski Faris Vehabović
Deputy Registrar President