EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 29202/95

Herman Olivier ZOON

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 4 December 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-17) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-12) 1

C. The present Report

(paras. 13-17)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 18-39)              4

A. The particular circumstances of the case

(paras. 18-29)              4

B. Relevant domestic law and practice

(paras. 30-39)              6

III. OPINION OF THE COMMISSION

(paras. 40-54)              8

A. Complaint declared admissible

(para. 40) 8

B. Point at issue

(para. 41) 8

C. As regards Article 6 paras. 1 and 3 (b)

of the Convention

(paras. 42-53)              8

CONCLUSION

(para. 54) 10

DISSENTING OPINION OF MR S. TRECHSEL 11

DISSENTING OPINION OF MR E.A. ALKEMA JOINED BY

MM G. JÖRUNDSSON, B. MARXER, I. CABRAL BARRETO,

E. BIELIŪNAS AND A. ARABADJIEV 12

APPENDIX: DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              14

I. INTRODUCTION

A. The application

2. The applicant is a Dutch citizen, born in 1950 and resident in Calpe , Spain. He was represented before the Commission by Mr G.H.J. Dolk , a lawyer practising in Rotterdam, the Netherlands.

4. The case concerns the applicant's complaint that in criminal proceedings against him he was not provided with a complete version of the judgment of the Regional Court before he had to decide whether or not to file an appeal. The applicant invokes Article 6 paras. 1 and 3 (b) of the Convention.

B. The proceedings

5. The application was introduced on 16 June 1995 and registered on 10 November 1995.

6. On 27 November 1996 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 27 March 1997 after an extension of the time-limit fixed for this purpose. The applicant replied on 1 May 1997.

8. On 14 January 1998 the Commission declared admissible the applicant's complaint under Article 6 paras. 1 and 3 (b) of the Convention. It declared inadmissible the remainder of the application.

9. By letter of 23 April 1998 the Commission requested the Government to submit a copy of the abridged judgment of the Regional Court. On 8 May 1998 the Government complied with this request.

10. The text of the Commission's decision on admissibility was sent to the parties on 30 January 1998 and they were invited to submit such further information or observations on the merits as they wished. Neither party availed itself of this possibility.

11. Pursuant to the entry into force of Protocol No. 11 to the Convention on 1 November 1998 the application was transferred to the Commission sitting in plenary.

12. After declaring the case admissible, the Commission, acting in accordance with former Article 28 para. 1 (b) of the Convention , also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

13. The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM. S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

Mr F. MARTINEZ

Mrs J. LIDDY

MM J.-C. GEUS

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

I. BÉKÉS

D. ŠVÁBY

A. PERENIC

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM. R. NICOLINI

A. ARABADJIEV

14. The text of this Report was adopted on 4 December 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

15. The purpose of the Report, pursuant to former Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

16. The Commission's decision on the admissibility of the application is annexed hereto.

17. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

18. The applicant was working as a general practitioner in Dirksland , the Netherlands.

19. On 9 September 1993 preliminary judicial investigations were initiated into allegations of forgery and fraud perpetrated by the applicant.

20. In the course of these investigations the applicant stated on his own initiative that in March 1993 he had performed euthanasia on, and at the request of, one of his patients. However, he had informed the municipal coroner ( gemeentelijk lijkschouwer ) that the patient had died from natural causes.

21. The applicant was then summoned to appear before the Regional Court ( Arrondissementsrechtbank ) of Rotterdam on the following charges:

(1) principally: murder;

alternatively: taking another person's life at that person's request;

(2) falsifying the official record concerning the cause of a person's death in his capacity of doctor;

(3) falsifying prescriptions;

(4) forging and presenting prescriptions for the acquisition of an opiate.

22. On 30 August 1994 the applicant filed an objection against the indictment with the Regional Court.

23. Following a hearing in camera on 2 December 1994, the Regional Court dismissed the objection.

24. On 27 April 1995 a public hearing took place before the Regional Court, during which the case was investigated on the merits. Both the applicant and his defence counsel, two lawyers from the same law firm in Rotterdam, were present. In his pleadings, counsel for the applicant argued, inter alia , that the obligation imposed by law on a doctor to inform the coroner of a death from unnatural causes infringed the applicant's right not to give evidence against himself as enshrined in Article 6 of the Convention. For that reason, according to counsel, the applicant should not have been prosecuted for the offence of falsifying an official record.

25. On 11 May 1995 the judgment of the Regional Court was read out in public and in the presence of the applicant's defence counsel. According to the Government, on this occasion the President of the Regional Court read out the considerations relating to the validity of the indictment, the main considerations underlying the dismissal of the defence plea concerning the admissibility of the prosecution, a summary of considerations relating to the evidence, and considerations as to whether the applicant was criminally liable. The applicant submits, however, that his lawyers only heard the President state that he was acquitted of the principal charge under (1) and of the charge under (4), that the defence in respect of the alternative charge under (1) was rejected, that the applicant was found guilty of the alternative charge under (1) and the charges under (2) and (3), and that the seriousness of these offences warranted a suspended term of imprisonment of six months and a fine of 50,000 Dutch guilders.

26. As to a written copy of the judgment, the Government submit that they have ascertained that a signed abridged version ( kop-staart vonnis ) was available when judgment was pronounced on 11 May 1995 and that it was the policy of the Rotterdam Regional Court at the relevant time to provide a copy of the abridged judgment if this was requested in writing. According to the applicant, however, his lawyer telephoned the Regional Court's registry before the expiry of the period within which an appeal could be filed and he was told that no judgment was available. Furthermore, the applicant's lawyer was not aware that the Regional Court had a policy of only issuing copies of judgments upon a request in writing.

27. On 25 May 1995 the time-limit for the lodging of an appeal expired and, no appeal having been instituted by either the applicant or the public prosecutor, the Court's judgment became final.

28. The abridged judgment, a copy of which was submitted by the Government at the request of the Commission, contains, inter alia , the Regional Court's considerations as to the validity of the indictment and as to the admissibility of the prosecution. As regards the latter, the Regional Court rejected the applicant's argument that the prosecution in respect of the charges of murder and euthanasia was inadmissible. It considered that since Article 10 of the Act on the Disposal of the Dead (Wet op de Lijkbezorging ) had not yet entered into force at the time of the impugned act there had not existed a legal obligation for the applicant to report the fact that he had committed an offence.

29. The abridged judgment further lists those offences of which the Regional Court acquitted the applicant and those of which it found him guilty. In respect of the means of evidence on which the Regional Court based its verdict, the abridged judgment states "P.M.". The Regional Court proceeded to deal with, and reject, the applicant's subsidiary pleading to the effect that if the prosecution was admissible then the evidence had not been gathered lawfully. Subsequently, the Regional Court examined the criminal liability of the applicant and determined the sentence to be imposed on him, rejecting the applicant's claim that he had acted in legitimate self- defence . The abridged judgment concludes with the sentence that the judgment has been read out in public on 11 May 1995.

B. Relevant domestic law and practice

30. Pursuant to Section 359 para. 1 of the Code of Criminal Procedure ( Wetboek van Strafvordering , hereinafter referred to as "CCP"), a judgment must contain the means of evidence on which a conviction is based. However, since - pursuant to Section 345 para. 3 CCP - the court has to deliver the judgment within fourteen days following the closure of the trial, it was not unusual at the relevant time that initially an abridged judgment would be drafted in cases where the accused was convicted. Such a judgment does not account for the means of evidence on which the conviction is based. A complete version of the judgment is not prepared unless the convicted person or the public prosecutor lodges an appeal against the judgment. In that case the means of evidence are included in the judgment and the case-file, including the complete judgment, is transmitted to the appeal court. This practice has been codified in Sections 138 (b) and 365 (a) CCP which have entered into force on 1 November 1996. If no appeal is lodged a complete judgment will be made available upon request of the prosecutor or the accused or his lawyer within three months after delivery of the judgment, unless this request is devoid of reasonable interest (Section 365 (c) paras. 1 and 2 CCP, which also entered into force on 1 November 1996).

32. Pursuant to Section 404 in conjunction with Section 408 para. 1 (a) CCP, an appeal against the Regional Court's judgment should be lodged with the Court of Appeal ( Gerechtshof ) within fourteen days following the day on which this judgment was read out in public. Once lodged, the appeal may be withdrawn by the person who instigated it at the latest just prior to the start of the hearing on appeal (Section 453 para. 1 CCP).

33. In a decision of 1986 the Supreme Court ( Hoge Raad ) held that an appeal filed outside the fourteen day period is inadmissible even if the accused or his counsel have, through no fault of their own, been unable to inspect the judgment of the Regional Court within the fourteen day period (judgment of 11.11.86, Nederlandse Jurisprudentie [NJ] 1987, 568).

34. When the Court of Appeal examines the case, it should have a complete version of the judgment of the lower court. If this is not the case, the judgment is null and void and should be quashed ( vernietigd ) by the Court of Appeal on formal grounds pursuant to Section 359 paras. 1 and 10 CCP. However, this does not mean that the Court of Appeal should refer the case back to the Regional Court: Section 423 para. 2 CCP provides that a case should be referred back to a Regional Court only if the judgment is quashed and the Regional Court had not decided on the merits of the case. This provision thus embodies the principle of the right to be tried by courts at two levels competent to examine the facts.

35. The appeal proceedings before the Court of Appeal offer a full new hearing since most of the provisions of the CCP which apply to the proceedings before the lower court also apply on appeal (Section 415 CCP). The accused, who has lodged the appeal, may submit his objections and possible additional objections in writing, both before and during the hearing on appeal. He may also submit additional objections orally in the course of the hearing on appeal until the formal closure of the appeal court's examination (Sections 416 and 311 paras. 1 and 4 CCP).

36. In a case which led to a decision of the Supreme Court on 17 September 1990, the accused complained before the Court of Appeal that the judgment of the first instance court did not contain the means of evidence. The Court of Appeal subsequently quashed the judgment because of the lack of means of evidence but it did not refer the case back to the Regional Court, since this latter court had decided on the merits of the case. In cassation the applicant invoked Article 6 para. 3 of the Convention. The Advocate General ( Advocaat-Generaal ) at the Supreme Court submitted as his opinion that the fact that the judgment of the first instance court had not contained the means of evidence did not prevent the accused from conducting his defence on appeal since:

1. an accused does not have to defend himself against the judgment by which he was convicted but against the accusation levelled against him by the public prosecution department; and

2. the Court of Appeal examines the case independently on the basis of the trial and the indictment and not on the basis of the judgment of the first instance court.

37. The Supreme Court rejected the appeal in cassation and for its reasoning referred to the opinion of the Procurator General (NJ 1991, 12).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

40. The Commission has declared admissible the applicant's complaint that he was not provided with a copy of the complete judgment of the Regional Court of Rotterdam at the time when he had to decide whether or not to lodge an appeal against that judgment.

B. Point at issue

41. Accordingly, the issue to be determined is whether there has been a violation of Article 6 paras. 1 and 3 (b) of the Convention.

C. As regards Article 6 paras. 1 and 3 (b) of the Convention

42. Article 6 paras. 1 and 3 (b), insofar as relevant, provides as follows:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal established by law. Judgment shall be pronounced publicly ...

3. Everyone charged with a criminal offence has the following minimum rights:

...

b. to have adequate time and facilities for the preparation of his defence ;

..."

43. The applicant maintains that he was not provided with a copy of either the complete judgment of the Regional Court or an abridged version of it before expiry of the time-limit within which he had to decide whether or not to lodge an appeal with the Court of Appeal. His lawyer was not aware of any policy of the Regional Court to the effect that written copies of abridged judgments were only provided upon a written request. However, even if an abridged judgment had been available, quod non, this would still not have enabled the applicant to reach a well-founded decision since this decision required him to be aware of the reasons of the Regional Court for dismissing his defence pleas or that court's special reasons leading to the determination of the sentence.

44. Furthermore, according to the applicant it is standard practice for the Prosecutor's Department to file an appeal if the accused does so. The applicant submits that even if the accused subsequently decides to withdraw his appeal, the Prosecutor's Department may maintain its appeal and it is by no means impossible for a heavier sentence to be imposed on appeal. The applicant concludes that it is contrary to Article 6 of the Convention for the provision of a complete version of a judgment to be made conditional on the lodging of an appeal, given the procedural risk this entails.

45. The Government submit in the first place that an abridged version of the judgment of the Regional Court was available from the registry of that Court and that, according to the practice of the Court, the applicant could have obtained a copy by submitting a request to that effect in writing. If the applicant had lodged an appeal a complete version of the judgment would have been produced and made available to him. This would not have entailed any costs for the applicant and neither would he have had to give any reasons for the appeal which he could have withdrawn without any further consequences at any time prior to the hearing.

46. According to the Government, the applicant could have complained on appeal that he had not received a copy of the abridged version but he would not have gained anything by doing so, since the abridged judgment would in any event have been completed once an appeal had been filed.

47. The Commission recalls in the first place that the requirements of paragraph 3 of Article 6 constitute specific aspects of the right to a fair trial, guaranteed under paragraph 1, and for that reason it will examine the complaint under both provisions taken together (cf. Eur. Court HR, Van Mechelen and Others v. the Netherlands judgment of 23 April 1997, Reports of Judgments and Decisions 1997-III, p. 711, para. 49).

48. It is further recalled that the Contracting States enjoy considerable freedom in the choice of the appropriate means to ensure that their judicial systems comply with the requirements of Article 6. However, the Commission is not called upon to examine in abstracto whether the system of abridged judgments as adopted by the respondent State is in conformity with the Convention. It is the Commission's task to consider whether this system has led to results which are incompatible with the Convention in the present case (cf. Eur. Court HR, Hadjianastassiou v. Greece judgment of 16 December 1992, Series A no. 252, p. 16, paras. 33).

49. In the Hadjianastassiou case referred to above, the Court examined the question whether the national courts had indicated the grounds on which they had based their decision with sufficient clarity to enable Mr Hadjianastassiou to exercise usefully the rights of appeal available to him (op. cit., p. 16, para. 33). In that case the Court concluded that the rights of the defence had been subject to restrictions incompatible with Article 6 (op. cit., p. 17, para. 37).

50. The Commission observes that in the present case the parties agree neither to what part of the judgment was read out in public nor to the question whether an abridged version of the judgment was available to the applicant prior to the expiry of the time-limit within which he had to lodge an appeal. However, it is not in dispute between the parties that no complete version of the judgment was available before that time-limit expired.

52. Although the Commission notes that in Dutch criminal proceedings an appeal is considered to be directed against the charges brought against a person rather than against the first instance judgment, it considers it normal and prudent behaviour for an accused to want to acquaint himself with the complete judgment of the first instance court before deciding whether or not to lodge an appeal.

53. The Commission thus considers the fact that the applicant would receive a complete judgment only if and after he had lodged an appeal which exposed him to, however slight, a procedural risk, to be incompatible with the requirements of Article 6 paras. 1 and 3 (b) of the Convention.

CONCLUSION

54. The Commission concludes, by 17 votes to 7, that in the present case there has been a violation of Article 6 paras. 1 and 3 (b) of the Convention.

       M.-T. SCHOEPFER                     S. TRECHSEL

         Secretary                          President

      to the Commission                 of the Commission

(Or. English)

DISSENTING OPINION OF MR S. TRECHSEL

I regret that I fully disagree with the majority of the Commission in its finding of a violation of Article 6 in the present case.

The system of which the applicant complains required him to declare his appeal before he was in possession of the judgment fully reasoned in writing. The applicant failed to appeal and I cannot detect any reasonable explanation for this omission.

In fact, by declaring his intention to appeal, the applicant did not assume any risk at all. This is the essential difference between this case and the one dealt with by the Court in its Hadjianastassiou v. Greece judgment of 16 December 1992 (Series A no. 252), where reasons had to be given for the appeal in cassation . Also, the applicant in the present case could later withdraw his appeal without even incurring any costs. There would also have been ample opportunity fully to present his arguments after he had been served with the finalised judgment.

Furthermore, the applicant fails to establish that he incurred a special risk due to the possibility of the public prosecutor lodging an appeal.

For these reasons I have come to the conclusion that there has been no violation of Article 6 in the present case.

I wish to add the following additional consideration: Everywhere in Europe courts seem to be overburdened with work. This sometimes leads to delays in violation of Article 6 of the Convention as to a reasonable time. The case law of the European Commission and Court of Human Rights unfortunately show ample evidence of this. All efforts to render the administration of justice more economical without infringing upon the right to fair proceedings must therefore be welcomed. One such rationalisation may consist in accepting relatively summary motivations for judgments. The view of the majority runs counter to such efforts, which is an additional reason for me to find it regrettable.

(Or. English)

DISSENTING OPINION OF MR E.A. ALKEMA JOINED BY

MM G. JÖRUNDSSON, B. MARXER, I. CABRAL BARRETO,

E. BIELIŪNAS AND A. ARABADJIEV

I regret that I am unable to share the view of the majority of the Commission that there has been a violation of Article 6 paras. 1 and 3 (b) of the Convention in this case.

In my opinion, the question which arises in the present application is similar to the one examined by the Court in its judgment in the Hadjianastassiou v. Greece case (judgment of 16 December 1992, Series A no. 252). In that case, the failure to give reasons in the judgment read out by the President of the Courts-Martial Appeal Court and the short time-limit for appealing to the Court of Cassation had led to Mr Hadjianastassiou's appeal on points of law being bound to fail. The Court, in examining whether the national courts had indicated the grounds on which they had based their decision with sufficient clarity to enable Mr Hadjianastassiou to exercise usefully the rights of appeal available to him, found that the rights of the defence had been subject to restrictions incompatible with Article 6 (op. cit., p. 16, para. 33, and p. 17, para. 37).

It appears from an analysis of domestic law and practice in the present case that in the Netherlands an appeal is considered as being directed against the charges brought against the accused rather than against the judgment as such. As long as the appeal is lodged within the fourteen day period following the oral delivery of the judgment, reasons for the appeal may be submitted as late as during the hearing on appeal, and the appeal may be withdrawn as long as the hearing on appeal has not commenced. In my view, this constitutes a relevant difference compared with the situation in the Hadjianastassiou case, where the applicant had already become time-barred from expanding upon his appeal on points of law when he received the finalised judgment which contained information he required for the substantiation of his appeal (op. cit., p. 17, para. 36). It follows that in the present case it was open to the applicant to lodge an appeal within the fourteen day period and to withdraw the appeal, if he so wished, upon receipt of the complete judgment.

Although I note that it is in dispute between the parties which parts of the Regional Court's judgment were read out on 11 May 1995, it strikes me as somewhat peculiar that the applicant's lawyers, who were practising in Rotterdam, would not have been aware of the practice adopted by the local Regional Court to submit copies of abridged judgments only upon a written request to that effect. Since the applicant has not submitted that there was no such practice, I consider that his counsel could have been expected to ensure that he be at least provided with a copy of the abridged judgment. I would recall in this respect that according to the Commission=s case-law, if a litigant is represented by a lawyer, it is generally through the latter that he has to exercise his procedural rights (cf. No. 21782/93, Dec. 26.6.95, D.R. 82, p. 5).

Contrary to what the applicant submits, moreover, the abridged judgment did contain the Regional Court's considerations leading to that Court's rejection of his defence pleas as well as those relating to the determination of the sentence (see paras. 28-29 above). The only element of the abridged judgment that still had to be completed was the description of the means of evidence on which the Regional Court had based itself, i.e. a factual summary of declarations by witnesses and not an assessment by the Regional Court. In my opinion the abridged judgment contained sufficient detail for the applicant to be able to make an informed choice as to whether or not to lodge an appeal. Upon the applicant lodging an appeal the complete judgment would have been made available at such a time as to enable the applicant to present supplementary grounds of appeal if he so wished (see para. 35 above).

As regards the allegation that the applicant would have run a procedural risk by lodging an appeal which he may have wanted to withdraw upon obtaining the complete judgment of the Regional Court, it is to be noted in the first place that the public prosecutor did not file an appeal. Although there is no indication that the public prosecutor would have done so if the applicant had filed an appeal, it is clear that there are safeguards against the public prosecutor abusing his right to lodge an appeal for the purpose of frustrating the application of Section 424 para. 2 CCP (see para. 38 above).

For these reasons I cannot find that in the circumstances of the present case the applicant was unable to exercise usefully the right of appeal available to him.