Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 22411/93

A.Ö.

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 2 July 1997)

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. 16-27) 3

A. The particular circumstances of the case

(paras. 16-23) 3

B. Relevant domestic law

(paras. 24-27) 4

III. OPINION OF THE COMMISSION

(paras. 28-45) 5

A. Complaint declared admissible

(para. 28) 5

B. Point at issue

(para. 29) 5

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

(paras. 30-44) 5

CONCLUSION

(para. 45) 7

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 8

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 Turkish national, born in 1956 and resides in

Rotterdam. He was represented before the Commission by Mr J.I.M.G. Jahae, a

lawyer practising in Amsterdam.

3. The application is directed against the Netherlands. The respondent

Government were represented by their Agents, MM. K. de Vey Mestdagh and H. von

Hebel, of the Netherlands Ministry of Foreign Affairs.

4. The case concerns the applicant's complaint that he did not have a fair

trial as the Supreme Court dismissed his appeal in cassation without having

notified him of the hearing of the appeal and thus of the time-limit for filing

a pleading. The applicant invokes Article 6 paras. 1 and 3 (b) and (c) of the

Convention.

B. The proceedings

5. The application was introduced on 7 May 1993 and registered on 4 August

1993.6. On 30 November 1994 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 24 February 1995. The

applicant replied on 24 April 1995.

8. On 28 February 1996 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the

parties on 12 March 1996 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:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. ŠVÁBY

P. LORENZEN

E. BIELI?NAS

E.A. ALKEMA

A. ARABADJIEV

12. The text of this Report was adopted on 2 July 1997 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 26 January 1990, the applicant was arrested and detained on remand on

suspicion of drug offences. On 14 November 1990 the Regional Court

(Arrondissementsrechtbank) of Rotterdam convicted him of drug offences and

sentenced him to six years' imprisonment.

17. The applicant appealed to the Court of Appeal (Gerechtshof) of The Hague.

On 25 November 1991, the Court of Appeal quashed the judgment of the Regional

Court, found the applicant guilty of drug offences and sentenced him to seven

years and six months' imprisonment with deduction of the time spent in detention

on remand.

18. In the proceedings before both the Regional Court and the Court of Appeal

the applicant was represented by counsel.

19. The applicant himself filed an appeal in cassation with the Supreme Court

(Hoge Raad) against the judgment of the Court of Appeal within the legal time-

limit of fourteen days set for this purpose.

20. The applicant had been in detention on remand throughout the entire

proceedings. In December 1992 the applicant's lawyer requested the Court of

Appeal of The Hague, which remained competent to decide requests for release

from pre-trial detention pending the proceedings before the Supreme Court, to

suspend the applicant's detention on remand. However, the lawyer was informed by

the Registry of the Court of Appeal that this Court was no longer competent to

examine the request, since the applicant's appeal in cassation had been

rejected.

21. The Supreme Court had in fact rejected the applicant's appeal in cassation

on 3 November 1992. The Supreme Court noted that the applicant had not submitted

any grounds of cassation and, after an ex officio examination of the appeal,

found no grounds on the basis of which the judgment of 25 November 1991 should

be quashed.

22. It appears that a notification pursuant to Section 437 para. 1 of the Code

of Criminal Procedure (Wetboek van Strafvordering), stating that the hearing of

the appeal in cassation before the Supreme Court was set for 14 September 1992,

had been issued to a remand centre (huis van bewaring) in Rotterdam for service

on the applicant. It is not clear, however, to which of the two remand centres

in Rotterdam the notification was sent. In any event, the notification was

returned to the Supreme Court as the person to whom it was addressed was unknown

in the remand centre concerned. The notification was subsequently sent,

according to the customary procedure, through the Regional Court of The Hague to

the applicant's private address, after this address had been verified with the

population registry of the municipality of Rotterdam.

23. Arguing that the failure to notify the applicant in person of the hearing

before the Supreme Court was contrary to the Dutch rules on notification of

hearings, the applicant's lawyer applied on 10 February 1993 for a revision

(herziening). The Supreme Court rejected this request on 28 September 1993,

holding that the grounds advanced by the applicant did not constitute grounds

for revision.

B. Relevant domestic law

24. Pursuant to Section 437 of the Code of Criminal Procedure (CCP) the

defendant must be notified of the impending hearing of his case before the

Supreme Court at least eight days before the date of the hearing. If the

defendant has not been properly notified, the Supreme Court will order that a

new date be set for the hearing.

25. Section 585 para. 3 CCP provides that this notification should be served

(betekend). If the judicial document to be handed over relates to the criminal

case for which the defendant has been deprived of his liberty by law, the

document should be served on the defendant in person, as provided for in Section

588 para. 1 (a) CCP.

26. A defendant who has lodged an appeal in cassation may, but is not obliged

to, submit grounds for his appeal in writing until the day the Supreme Court is

scheduled to hear the case, and/or orally during the hearing before the Supreme

Court (Sections 433 para. 2 and 439 CCP), provided that these grounds are also

set out in a written document which must be submitted to the Supreme Court

before the closure of its hearing. The defendant is not himself permitted to

speak before the Supreme Court; pursuant to Section 439 CCP only his legal

counsel is entitled to do so.

27. Pursuant to Section 99 of the Judicial Organisation Act (Wet op de

Rechterlijke Organisatie) an appeal in cassation is limited to questions of law

and procedural conformity. The Supreme Court will examine the cassation

memorials submitted by the Public Prosecutions Department (Openbaar Ministerie)

and/or the appellant but will also examine the impugned decision ex officio

(Section 441 para. 1 CCP).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

28. The Commission has declared admissible the applicant's complaint that, in

cassation proceedings before the Supreme Court, he did not receive the

notification of the date of the hearing before this Court and he was thus unable

to prepare and conduct his defence.

B. Point at issue

29. The Commission must accordingly examine:

- whether there has been a violation of Article 6 paras. 1 and 3 (b) and (c)

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

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

Convention

30. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads

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 established by law ..."

31. Article 6 para. 3 (b) and (c) (Art. 6-3-b-c) of the Convention reads as

follows:

"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;

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

choosing ..."

32. The applicant complains that he was not notified of the date of the

hearing of his appeal in cassation before the Supreme Court, as a result of

which he was unable to have his defence prepared and conducted. He submits that

his lawyer did not notify the Supreme Court in advance of the fact that he was

representing the applicant since, in the lawyer's experience, he would only be

informed by the Supreme Court's registry that the case-file had not yet been

received. Instead, the applicant's lawyer waited for the applicant to be

notified of the date of the hearing, as required by law, once such information

had been received, he would have identified himself to the Court, would have

received a copy of the case-file and would have prepared the arguments

underlying the appeal in cassation.

33. The applicant concedes that the Supreme Court examines cases ex officio,

but in his opinion an appeal in cassation is dealt with more thoroughly when

grounds for the appeal have been submitted.

34. The Government submit that, despite the fact that the notification did not

reach the applicant as a result of an apparent misunderstanding, his defence

rights were not prejudiced to such an extent as to constitute a contravention of

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

35. In this respect the Government contend that the applicant was represented

at first instance and on appeal by legal counsel and that the facts of the case

were not re-examined in cassation where the Supreme Court solely examines

whether the law has been applied correctly and the correct procedure has been

observed. Furthermore, the Supreme Court checks as a matter of course to see

whether there are any defects in the disputed judgment.

36. The Government argue, moreover, that, although it appears that the

applicant was in contact with his lawyer at the time the appeal in cassation was

introduced by the applicant himself, the applicant's lawyer did not notify the

Supreme Court that he was representing the applicant. If he had done so, he

would have received a copy of the notification. Neither did the applicant's

lawyer enquire about the date on which the appeal in cassation was to be heard.

37. As the requirements of paragraph 3 (b) and (c) of Article 6 (Art. 6-3-b-c)

of the Convention constitute specific aspects of the right to a fair trial,

guaranteed under paragraph 1, the Commission will examine the complaint under

the three provisions taken together (cf. Eur. Court HR, Hadjianastassiou v.

Greece judgment of 16 December 1992, Series A no. 252, p. 16, para. 31).

38. The Commission recalls that the manner of application of Article 6 (Art.

6) to proceedings before appellate or cassation courts depends upon the special

features of the proceedings involved; account must be taken of the entirety of

the proceedings in the domestic legal order and of the role of appellate or

cassation courts therein (cf. Eur. Court HR, Monnell and Morris v. the United

Kingdom judgment of 2 March 1987, Series A no. 115, p. 22, para. 56; and,

mutatis mutandis, Jan-Ã…ke Andersson v. Sweden judgment of 29 October 1991,

Series A no. 212-B, p. 43, para. 22).

39. The Commission notes that it is not in dispute between the parties that

the applicant was represented by counsel in the proceedings before the Regional

Court and the Court of Appeal and it has not been argued that the applicant was

unable to advance whatever he deemed relevant in those proceedings. The

Commission observes, furthermore, that the present case does not concern the

question of the applicant's or his lawyer's absence from the hearing before the

Supreme Court as such. The applicant's complaint relates to the opportunity for

a person charged with a criminal offence to be informed of the date of a hearing

where this hearing also constitutes the time-limit for submission of legal

argument.

40. The Commission observes that in cassation proceedings the Supreme Court

does not re-hear the case on the facts but only considers questions of law and

compliance with procedural requirements. When no cassation memorial has been

submitted by an appellant the Supreme Court will not for that reason declare the

appeal in cassation inadmissible but it will examine the case ex officio.

41. Although domestic law thus ensures that an appeal in cassation will be

examined by the Supreme Court despite the absence of a cassation memorial, the

Commission cannot exclude that an appellant in cassation may raise issues which

would not otherwise have been considered by the Supreme Court. Indeed, if this

were not so the possibility for the appellant to submit grounds for his appeal

in cassation would appear to be superfluous.

42. In the circumstances of the present case, moreover, the Commission cannot

find that the applicant and his lawyer acted unreasonably or unwisely by

awaiting the legally required notification of the date of the hearing to the

applicant before preparing a cassation memorial. In view of the fact that the

applicant was detained in connection with the criminal charge to which the

proceedings in cassation related they were entitled to rely on the authorities

serving the notification on the applicant in person pursuant to Section 588

para. 1 (a) CCP.

43. The Commission emphasises that States must ensure that everyone charged

with a criminal offence benefits from the safeguards provided by Article 6 para.

3 (Art. 6-3). Putting the onus on a convicted appellant to find out when an

allotted period of time expires, as occurred in the present case, is not

compatible with the "diligence" which the Contracting States must exercise to

ensure that the rights guaranteed by Article 6 (Art. 6) are enjoyed in an

effective manner (cf. Eur. Court HR, Vacher v. France judgment of 17 December

1996, to be published in Reports 1996, para. 28).

44. The Commission accordingly considers that since the applicant did not

receive the notification of the date of the hearing before the Supreme Court he

was deprived of the possibility of putting his case, or having his case put, to

the Supreme Court in a concrete and effective manner.

CONCLUSION

45. The Commission concludes, unanimously, that in the present case there has

been a violation of Article 6 paras. 1 and 3 (b) and (c) (Art. 6-1, 6-3-b-c) of

the Convention.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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A.Ö. v. THE NETHERLANDS

A.Ö. v. THE NETHERLANDS

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