EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 26788/95

Peter R.H.H.B.G. VERVERGAERT

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 16 April 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-26)              3

A. The particular circumstances of the case

(paras. 16-25)              3

B. Relevant domestic law and practice

(para. 26) 4

III. OPINION OF THE COMMISSION

(paras. 27-36)              5

A. Complaint declared admissible

(para. 27) 5

B. Point at issue

(para. 28) 5

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

(paras. 29-35)              5

CONCLUSION

(para. 36) 6

APPENDIX : DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              7

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Dutch citizen, born in 1965 and resident in Spijkenisse , the Netherlands.  He was represented before the Commission by Mr R.J. Baumgardt , a lawyer practising in Spijkenisse .

3. The application is directed against the Netherlands.  The respondent Government were represented by their Agent, Mr R. Böcker , of the Netherlands Ministry of Foreign Affairs.

4. The applicant complains that in criminal proceedings against him his counsel was not allowed to conduct the defence in his absence. He invokes Article 6 paras. 1 and 3 (c) of the Convention.

B. The proceedings

5. The application was introduced on 10 November 1994 and registered on 21 March 1995.

6. On 16 October 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 19 December 1996.  The applicant did not submit a reply.

8. On 10 September 1997 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 19 September 1997 and they were invited to submit such further information or observations on the merits as they wished.  Neither party availed itself of this possibility.

10. After declaring the case admissible, the Commission, acting in accordance with 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

11. The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

12. The text of this Report was adopted on 16 April 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to 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.

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

15. 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

16. On 3 February 1990 the applicant was arrested and taken into police custody on suspicion of having committed a number of burglaries. He was released on 5 February 1990.

17. On 13 March 1991 the applicant was summoned to appear before the Regional Court ( Arrondissementsrechtbank ) of Rotterdam on several charges of burglary. The Regional Court heard the case on 24 May 1991. The applicant did not appear. His lawyer, however, was present. The applicant had been summoned at the address where he was officially registered, but since he had recently left this house he had not received the summons in time.

18. On 7 June 1991 the Regional Court convicted the applicant, in absentia, as charged and sentenced him to a partially suspended term of fifteen months' imprisonment less the time spent in pre-trial detention.

19. The applicant filed an appeal against this judgment with the Court of Appeal ( Gerechtshof ) of The Hague.

20. The Court of Appeal had planned a hearing on 29 July 1992 but as the applicant was unable to attend due to illness, it was adjourned.

21. On 21 December 1992 the Court of Appeal examined the case. According to the procès -verbal of this hearing, the applicant's lawyer explained to the Court that his client was unable to attend the hearing since he was on holiday to celebrate his engagement. The lawyer, however, requested the Court to provide him with the opportunity to conduct the defence . The Court of Appeal rejected this request, since it considered there were no compelling reasons ( klemmende redenen ) for the applicant's absence. The Court of Appeal subsequently declared the applicant in default of appearance and started its examination.

22. On 4 January 1993 the Court of Appeal quashed the Regional Court's judgment, convicted the applicant as charged and sentenced him to twelve months' imprisonment less the time spent in pre-trial detention.

23. The applicant filed an appeal in cassation with the Supreme Court ( Hoge Raad ). He complained, inter alia , that the Court of Appeal had not allowed his lawyer to conduct his defence in his absence. He invoked Article 6 para. 3 (c) of the Convention and referred to the Poitrimol v. France judgment of the European Court of Human Rights of 23 November 1993 (Series A no. 277-A) and to the Commission's Reports concerning the cases of Lala and Pelladoah (Comm. Reports 4.5.93, para. 52 and para. 60 respectively, Eur. Court HR, Series A no. 297-A and B, p. 18 and 39 respectively).

24. The Advocate General ( Advocaat-Generaal ) advised the Supreme Court to reject the applicant's appeal in cassation because there had been no compelling reasons for the applicant's absence.

25. In its judgment of 17 May 1994 the Supreme Court rejected the applicant's appeal in cassation .

B. Relevant domestic law and practice

26. The Netherlands Code of Criminal Procedure ( Wetboek van Strafvordering ) does not ensure the rights of a lawyer to conduct the defence of an accused before a court, where the latter has been declared in default of appearance, unless the court finds that there are "compelling reasons" preventing the accused from appearing (for further details see Eur. Court HR, Lala v. the Netherlands judgment of 22 September 1994, Series A no. 297-A, pp. 9-11, paras. 16-21).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

27. The Commission has declared admissible the applicant's complaint that he was tried and convicted in absentia in proceedings in which his counsel was not provided with the opportunity to conduct his defence .

B. Point at issue

28. Accordingly, the issue to be determined is whether there has been a violation of Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention, as alleged by the applicant.

C. As regards Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention

29. Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c), insofar as relevant, read as follows:

"1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ...

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

...

c. to defend himself in person or through legal assistance of his own choosing ..."

30. The applicant argues that at the hearing before the Court of Appeal his counsel should have been given the opportunity to conduct the defence , despite the fact that the applicant himself was not present.

31. The respondent Government submit that, following the judgments in the cases of Lala and Pelladoah v. the Netherlands (Eur. Court HR, judgments of 22 September 1994, Series A nos. 297-A and 297-B respectively), counsel for an accused who has not appeared in court is now always given the opportunity to speak in his client's defence even if there are no compelling reasons for the accused's absence.

32. In view of the above, the Government defer to the opinion of the Commission.

33. The Commission observes that the principles involved in the present case are the same as those in the cases which led to the Lala and Pelladoah judgments (op. cit., p. 11, para. 25 and p. 32, para. 32 respectively).

34. In these judgments, the Court held that it is for domestic courts to ensure that a trial is fair and, accordingly, that counsel who attends trial for the apparent purpose of defending the accused in his absence, is given the opportunity to do so (op. cit., p. 14, para. 34 and p. 35, para. 41 respectively).

35. The Commission finds that there is nothing in the present application which would lead to a different conclusion from that which was reached by the Court in the above-mentioned Lala and Pelladoah judgments.

CONCLUSION

36. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 paras. 1 and 3 (c)

37.(Art. 6-1, 6-3-c) of the Convention.

   M.-T. SCHOEPFER                               J.-C. GEUS

      Secretary                                   President

to the Second Chamber                      of the Second Chamber