Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 25514/94

Guno Vincentius Menckeberg

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 16 October 1996)

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. 16-38). . . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 16-30) . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law and practice

(paras. 31-38) . . . . . . . . . . . . . . . . . . . . . 5

III. OPINION OF THE COMMISSION

(paras. 39-72). . . . . . . . . . . . . . . . . . . . . . . . 7

A. Complaints declared admissible

(para. 39) . . . . . . . . . . . . . . . . . . . . . . . 7

B. Points at issue

(para. 40) . . . . . . . . . . . . . . . . . . . . . . . 7

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

in respect of the applicant's absence from the hearing on

appeal

(paras. 41-53) . . . . . . . . . . . . . . . . . . . . . 7

CONCLUSION

(para. 54) . . . . . . . . . . . . . . . . . . . . . . . 9

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

in respect of the refusal to allow the applicant's counsel

to conduct the defence in the applicant's absence

(paras. 55-63) . . . . . . . . . . . . . . . . . . . . .10

CONCLUSION

(para. 64) . . . . . . . . . . . . . . . . . . . . . . .11

TABLE OF CONTENTS

Page

E. As regards Article 6 paras. 1 and 3 (d) of the Convention

(paras. 65-68) . . . . . . . . . . . . . . . . . . . . .11

CONCLUSION

(para. 69) . . . . . . . . . . . . . . . . . . . . . . .11

F. Recapitulation

(paras. 70-72) . . . . . . . . . . . . . . . . . . . . .12

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . .13

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 1962 and resident in

Amsterdam. He was represented before the Commission by Mr. G. Meijers,

a lawyer practising in Amsterdam.

3. The application is directed against the Netherlands. The

respondent Government were represented by their Agent,

Mr. K. de Vey Mestdagh, of the Netherlands Ministry of Foreign Affairs.

4. The case concerns the applicant's conviction in criminal

proceedings in which the summons for the hearing before the Court of

Appeal had not reached him and in which his lawyer was not allowed to

conduct the defence or to question witnesses. The applicant invokes

Article 6 paras. 1 and 3 (c) and (d) of the Convention.

B. The proceedings

5. The application was introduced on 6 October 1994 and registered

on 2 November 1994.

6. On 6 April 1995 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 11 July 1995

after an extension of the time-limit fixed for this purpose. The

applicant replied on 12 September 1995.

8. On 17 January 1996 the Commission declared admissible the

applicant's complaints under Article 6 paras. 1 and 3 (c) and (d) of

the Convention. It declared inadmissible the remainder of the

application.

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

to the parties on 24 January 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

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

12. The text of this Report was adopted on 16 October 1996 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 6 July 1992, the applicant and one or more other persons were

arrested in flagrante delicto when they attempted to extort somebody.

The applicant was detained on remand. He was subsequently summoned to

appear on 21 July 1992 before the Magistrate (Politierechter) of the

Regional Court (Arrondissementsrechtbank) of Amsterdam on charges of

attempted extortion committed in association with one or more other

persons.

17. On 21 July 1992, following adversarial proceedings in which the

applicant was represented by the assigned legal aid lawyer Mr. L.B.,

the Magistrate of the Regional Court acquitted the applicant and

ordered his immediate release. On 27 July 1992, the public prosecutor

lodged an appeal against this judgment with the Court of Appeal

(Gerechtshof) of Amsterdam.

18. On 31 July 1992, pursuant to Section 409 para. 2 of the Code of

Criminal Procedure (Wetboek van Strafvordering; hereinafter referred

to as "CCP"), an attempt was made to notify the applicant of the public

prosecutor's appeal. This unsuccessful attempt was made at the

applicant's official place of residence, i.e. the address at which he

was registered at that moment with the Registry Office

(Bevolkingsregister) of Amsterdam.

19. On 6 October 1992, in the prison at Heerhugowaard, where he was

detained in connection with another criminal case, the applicant was

notified in person that the public prosecutor had lodged an appeal

against the acquittal.

20. On 5 February 1993, an unsuccessful attempt was made at the

applicant's official place of residence to serve him with the summons

to appear before the Court of Appeal. According to the Registry Office

of Amsterdam, the address at which the attempt was made, was still the

applicant's official place of residence. Pursuant to Section 588

para. 4 of the CCP, the summons was, on 15 February 1993, presented to

the Registrar (griffier) of the Regional Court.

21. On 4 March 1993, Mr. L.B., who had also represented the applicant

in the first instance proceedings, informed the Court of Appeal that

he had been assigned as the applicant's lawyer and requested to be

provided with the applicant's case-file.

22. In the morning of 16 March 1993, the Court of Appeal started its

examination of the case. The applicant was not present but his lawyer

was. The lawyer stated that he did not know why the applicant had not

appeared. The Court of Appeal declared the applicant in default of

appearance (verstek) and started its examination. At the request of the

Procurator General (Procureur-Generaal), the Court of Appeal adjourned

its examination until 2.30 p.m. that same day in order to hear the

police officers D. and T. as witnesses.

23. At 14.30 hours, the Court of Appeal resumed its examination. The

applicant had still not appeared. The applicant's lawyer, who could not

provide the Court of Appeal with compelling reasons (klemmende redenen)

for the applicant's absence, asked for leave to conduct the defence in

the applicant's absence. The request was rejected. The Court of Appeal

subsequently heard the two witnesses. The applicant's lawyer was not

allowed to put any questions to them.

24. The Procurator General informed the Court of Appeal that the

applicant, in three different sets of criminal proceedings, had

previously been convicted, by judgments of 30 October 1992, 24 November

1992 and 11 December 1992 respectively, by the Magistrate of the

Regional Court of Amsterdam and sentenced to terms of imprisonment of

three months, three months and two months respectively.

25. On 30 March 1993, the Court of Appeal quashed the Magistrate's

judgment convicted the applicant in absentia of attempted extortion

committed together with one or more other persons and sentenced him to

four months' imprisonment. The Court of Appeal used in evidence a

statement of the victim and the statements of police officers D. and

T. concerning what they had seen at the time of the applicant's arrest

on 6 July 1992. The applicant received notice of the Court of Appeal's

judgment in prison.

26. The applicant subsequently lodged an appeal in cassation with the

Supreme Court (Hoge Raad). At that time, he was detained in the prison

at Arnhem. During the proceedings in cassation, the applicant was

assisted by another lawyer than in the proceedings before the Regional

Court and the Court of Appeal.

27. The applicant argued that, in view of the fact that on

6 October 1992 he had been officially notified in the penitentiary of

the appeal lodged by the prosecution, and in view of the fact that he

had been sentenced to several prison terms at the end of 1992, it

should have been clear to the Court of Appeal that it was doubtful

whether he was actually living at his official place of residence at

the time the attempts to serve him with the summons were made. The

applicant further argued that the Court of Appeal should have declared

the summons void or should have adjourned its examination of the case

in order to give him the opportunity to appear and conduct his defence.

28. The applicant also complained that the Court of Appeal had not

allowed the lawyer who assisted him at the time to conduct the defence

in his absence, the consequence of which had been that, in violation

of the principle of equality of arms, the defence had not been able to

question the witnesses, whereas the Procurator General had done so. He

pointed out that his conviction was based to a large extent on the

statements of the police officers D. and T.

29. On 29 March 1994, the Advocate General (Advocaat-Generaal) at the

Supreme Court submitted his written conclusions. He found that the

summons to appear before the Court of Appeal had been lawfully served.

In his opinion, it had not been obvious during the appeal proceedings

that the applicant was in detention. He further stated that he agreed

with the Court of Appeal's rejection of the request of the applicant's

lawyer to conduct his client's defence in his absence.

30. On 31 May 1994, the Supreme Court rejected the applicant's appeal

in cassation.

B. Relevant domestic law and practice

31. Pursuant to Section 409 para. 1 CCP, the Registrar of the

Regional Court, after an appeal has been lodged against a judgment of

the Regional Court, transmits the case-file in question to the Court

of Appeal. When only the public prosecutor has lodged an appeal, the

Registrar does not send the case-file to the Court of Appeal until the

defendant has been notified of the public prosecutor's appeal (Section

409 para. 2 CCP). According to Section 412 para. 1 CCP, the President

of the Court of Appeal determines, if possible within eight days after

transmission of the case-file, the day of the hearing on appeal.

32. The notification of judicial communications (gerechtelijke

mededelingen) to natural persons is regulated in Sections 585-590 CCP.

In principle, a summons to appear in court is served on the defendant

in person at his place of residence, usually by the postman. If the

defendant is not present, the summons may be left with another person

present at the address if he declares his willingness to hand the

summons to the defendant without delay (Section 588 para. 1b CCP).

33. If delivery of the summons to another person at the defendant's

place of residence is also not possible, a notice is left behind giving

the address at which the defendant, or someone authorised to act on his

behalf, may collect the summons (usually the post office). If nobody

claims the summons, it is returned to the public prosecutor's office

(Section 588 paras. 2 and 3 CCP).

34. The public prosecutor's office will then verify at the Registry

Office of the relevant municipality whether the defendant was in fact

registered at the address where the summons was served on the day it

was presented and five days afterwards. If this proves to be the case,

the summons is presented to the Registrar of the Regional Court that

will deal or has dealt with the case. The Registrar of the Regional

Court will then send the summons by service mail to the defendant's

address pursuant to Section 588 para. 4 CCP.

35. Pursuant to Section 588 para. 1a CCP, if a defendant is detained

in the Netherlands in connection with the case to which the summons

refers, the summons must be served on the defendant in person. In

accordance with established Supreme Court case-law based on Section 588

para. 1 CCP, it may be desirable for the court to investigate, if the

accused has not appeared at a hearing after receiving a lawful summons

to do so, whether there are reasons for suspending the hearing in order

to give the accused another opportunity to attend. The court is only

obliged to do so, however, if it is apparent from the documents or

points raised during the hearing that the accused has been detained in

connection with another case than that to which the summons refers.

36. According to Section 590 para. 1 CCP, the notification is null

and void when the statutory regulations concerning notification of

judicial communications have not been respected. However, this nullity

will have no effect if the defendant appears voluntarily at the

hearing, or when a situation has occurred from which it may be assumed

that the defendant was aware of the date of the hearing before the

statutory time of summoning (Section 590 para. 2 CCP).

37. Under Section 399 para. 1 CCP, an accused who has been convicted

in absentia in a final judgment (einduitspraak) by the first instance

court may file an objection (verzet). Such an objection entitles the

accused to a full retrial by the same court (Section 403 CCP). An

objection may not be filed by an accused who has, or has had, the

opportunity to appeal to a higher court with jurisdiction as to both

fact and law (Section 399 para. 2 CCP). It follows from Section 399

para. 1 CCP that no objection may be filed against a judgment in

absentia given on appeal.

38. Under Dutch law, an accused who has been declared in default of

appearance is not entitled to have his defence conducted by counsel,

unless the court finds that there are "compelling reasons" preventing

the accused from appearing (for further details see Eur. Court H.R.,

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. Complaints declared admissible

39. The Commission has declared admissible the applicant's complaints

that, in criminal appeal proceedings before the Court of Appeal, he was

unable to defend himself since he had not been made aware of the date

of the hearing and his lawyer was neither allowed to conduct the

defence in the absence of the applicant nor to question witnesses.

B. Points at issue

40. The Commission must accordingly examine:

- whether there has been a violation of Article 6 paras. 1 and

3 (c) (Art. 6-1, 6-3-c) of the Convention in that the applicant

was unable to attend the hearing before the Court of Appeal;

- whether there has been a violation of Article 6 paras. 1 and

3 (c) (Art. 6-1, 6-3-c) of the Convention in that the applicant's

lawyer was not allowed to conduct the defence in the applicant's

absence; and

- whether there has been a violation of Article 6 paras. 1

and 3 (d) (Art. 6-1, 6-3-d) of the Convention in that the

applicant's lawyer was not allowed to question witnesses.

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

Convention in respect of the applicant's absence from the hearing

on appeal

41. 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 ... "

42. Article 6 para. 3 (c) (Art. 6-3-c) of the Convention, insofar as

relevant, reads as follows:

"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 ..."

43. The applicant complains that he was unable to defend himself in

person before the Court of Appeal since the summons to this hearing had

not reached him, and he had not waived the right to defend himself. He

submits that the prosecution authorities made insufficient efforts to

inform him of the date of the hearing. In this respect he points to the

fact that the authorities did succeed in delivering to him, while he

was in prison, the notification of the appeal instigated by the public

prosecutor. He further submits that his case-file contained information

about other convictions whereby he had been sentenced to prison. In

addition, the applicant contends that since 1985 the authorities have

had a computerised system at their disposal which enables them to find

out where convicted persons are being held.

44. The respondent Government submit that the notification procedure

followed was in accordance with Dutch law and that there was nothing

either in the contents of the documents available to the prosecution

authorities for the hearing on appeal or in the points raised during

the hearing on appeal itself to arouse any suspicion that the applicant

had been lawfully detained at the moment of the delivery of the summons

on appeal. According to the Government, a computerised system enabling

the prosecuting authorities to find out who is in detention and where

was not introduced until August 1993. At the time the summons in the

present case was issued, the only way to determine whether an accused

might be detained was on the basis of the available documents in the

case-file.

45. The Government further argue that the applicant's counsel in the

proceedings before the Court of Appeal was also unaware of the

applicant's detention, given that he was unable to inform the Court of

Appeal of the reasons for the applicant's absence. They submit that

counsel might have been expected to take some trouble to reach the

applicant.

46. The Commission notes in the first place that the present case

relates to the opportunity for a person charged with a criminal offence

to attend his trial together with his counsel. As this is the

fundamental question and as the requirements of paragraph 3 of

Article 6 (Art. 6) are to be seen as particular aspects of the right

to a fair trial guaranteed by paragraph 1, the Commission will examine

the complaint from the point of view of these two provisions in

conjunction (cf. Eur. Court HR, F.C.B. v. Italy judgment of 28 August

1991, Series A no. 208-B, p. 20, para. 28).

47. The Commission recalls that the right of an accused person to

participate in person in the trial is a fundamental element of a fair

trial (cf. Eur. Court HR, Colozza v. Italy judgment of

12 February 1985, Series A no. 89, p. 14, para. 27; and T. v. Italy

judgment of 12 October 1992, Series A no. 245-C, p. 41, para. 26).

Furthermore, an accused may waive the exercise of this right, but to

do so he must have received notification in person and his decision not

to appear or to defend himself must be established in an unequivocal

manner (Colozza judgment, loc. cit., pp. 14-15, para. 28).

48. The Commission observes that the applicant, who was not present

at the hearing before the Court of Appeal despite the fact that he was

charged with a criminal offence, had not expressed the wish to waive

attendance. It also observes that the notification of appeal by the

public prosecutor had been delivered to the applicant in person whilst

he was detained in connection with other criminal offences. The

applicant was thus made aware of the fact that an appeal had been

lodged.

49. However, unlike the notification of appeal, the actual summons

for the hearing on appeal did not reach the applicant. The Commission

finds that informing someone of the date on which criminal charges

against him are to be examined is a legal act of such importance that

it must be carried out in accordance with procedural and substantive

requirements capable of guaranteeing the effective exercise of the

accused's rights (cf., mutatis mutandis, T. v. Italy judgment, loc.

cit., p. 42, para. 28). The Commission notes in this respect that,

while the notification of the summons was indeed dealt with in

accordance with the provisions of Dutch law, these provisions do not

provide for the situation which arose in the present case where the

accused was detained in connection with a different case from that to

which the summons referred.

50. The Commission considers that in the present case it cannot be

said, as indeed the Government do not allege, that the applicant failed

to take the necessary steps to ensure receipt of his mail (cf., mutatis

mutandis, Eur. Court HR, Hennings v. Germany judgment of 16 December

1992, Series A no. 251-A, p. 11, para. 26). In this respect the

Commission accepts that a person who is lawfully deprived of his

liberty may reasonably expect the authorities to be aware of this fact

and to be able to ascertain his place of detention.

51. Furthermore, the Commission notes that in the present case the

prosecuting authorities must at some stage of the appeal proceedings

have been aware of the fact that the applicant was detained, since the

notification of appeal was served on him in prison (para. 19).

Moreover, at the hearing on 16 March 1993 the Procurator General at the

Court of Appeal informed this Court that the applicant had previously

been sentenced to a total of eight months' imprisonment (para. 24),

which would appear to give some indication of the possibility that the

applicant might have been detained at the time when attempts were made

to notify him of the date of the hearing. Nevertheless, the Court of

Appeal ordered no investigation into this possibility but declared the

applicant in default and proceeded to convict and sentence him.

52. The Commission finds it difficult to reconcile this situation

with the diligence which the Contracting States must exercise to ensure

the effective enjoyment of the rights guaranteed under Article 6

(Art. 6) (cf. F.C.B. v. Italy judgment, loc. cit., p. 42, para. 29).

53. The Commission notes that according to the Government the

applicant's counsel was also unaware of his client's detention and did

not attempt to reach the applicant. However, even assuming this to be

the case, the Commission finds that the consequences which the Dutch

judicial authorities attributed to the applicant's absence were

disproportionate, having regard to the prominent place which the right

to a fair trial holds in a democratic society within the meaning of the

Convention (cf. Colozza v. Italy judgment, loc. cit., p. 16, para. 32).

CONCLUSION

54. The Commission concludes, unanimously, that there has been a

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

Convention in that the applicant was not notified of the hearing before

the Court of Appeal.

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

Convention in respect of the refusal to allow the applicant's

counsel to conduct the defence in the applicant's absence

55. The applicant submits 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.

56. The respondent Government submit in the first place 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. The Government are also considering amending the law

on this point.

57. In view of the above, the Government defer to the opinion of the

Commission. Nevertheless, despite the similarities with the cases of

Lala and Pelladoah, the Government take the view that the specific

circumstances of the present case should be taken into account when

considering the question whether the interests of the applicant's

defence were harmed.

58. In this respect they argue that there is no indication that at

the relevant time the applicant's counsel had contact with the

applicant or attempted to ascertain his place of residence. In the

opinion of the Government it is among the responsibilities of counsel

to inform a client of the time at which an appeal will be heard, not

only in order to prepare for the hearing but also in view of the

Supreme Court case-law at that time according to which counsel was only

allowed to conduct the defence in the absence of the accused if

compelling reasons for his absence could be put forward. If the options

available for the applicant's defence are thus restricted in any way,

it cannot be argued that the judicial authorities are solely

responsible for this restriction.

59. The Government further believe that the applicant could have been

expected to make more of an effort to exercise his right to a defended

action by contacting the lawyer who acted as his counsel at

first instance, or any other counsel.

60. 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 (loc. cit., p. 11, para. 25 and p. 32, para. 32

respectively).

61. 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 (loc. cit., p. 14, para. 34

and p. 35, para. 41 respectively).

62. The Commission recalls furthermore that the Court found that the

fact that the defendant does not appear cannot - even in the absence

of an excuse - justify depriving him of his right under Article 6

para. 3 (c) (Art. 6-3-c) to be defended by counsel (loc. cit., p. 13,

para. 33 and p. 35, para. 40 respectively). Accordingly, the Commission

cannot find the question whether or not the applicant and his counsel

could be reproached for not having attempted to contact each other to

be of relevance in this respect.

63. The Commission considers 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

64. The Commission concludes, unanimously, that there has been a

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

Convention in that the applicant's counsel was not allowed to conduct

the defence in the applicant's absence.

E. As regards Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the

Convention

65. Article 6 para. 3 (d) (Art. 6-3-d) of the Convention, insofar as

relevant, reads as follows:

"3. Everyone charged with a criminal offence has the following

minimum rights:

...

d. to examine or have examined witnesses against him ..."

66. The applicant complains that at the hearing before the Court of

Appeal his counsel was not allowed to question witnesses. Since these

witnesses were questioned by the prosecution he also complains of

inequality of arms in this respect.

67. The Government, while referring to their observations on the

question of the impossibility for counsel to conduct the defence in the

applicant's absence, also submit that the Court of Appeal, in view of

its independent position and its impartiality, would have taken into

account the interests and position of the applicant when arriving at

its judgment, even if the latter's counsel was not in a position to

speak during the proceedings.

68. The Commission recalls its conclusion that the refusal to allow

the applicant's counsel to conduct the defence in the applicant's

absence constituted a violation of Article 6 paras. 1 and 3 (c)

(Art. 6-1, 6-3-c) of the Convention (para. 64). Having regard to this

conclusion, the Commission does not consider it necessary also to

examine whether Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the

Convention have been violated.

CONCLUSION

69. The Commission concludes, unanimously, that it is not necessary

to examine whether there has been a violation of Article 6 paras. 1

and 3 (d) (Art. 6-1, 6-3-d) of the Convention.

F. Recapitulation

70. The Commission concludes, unanimously, that there has been a

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

Convention in that the applicant was not notified of the hearing before

the Court of Appeal (para. 54).

71. The Commission concludes, unanimously, that there has been a

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

Convention in that the applicant's counsel was not allowed to conduct

the defence in the applicant's absence (para. 64).

72. The Commission concludes, unanimously, that it is not necessary

to examine whether there has been a violation of Article 6 paras. 1

and 3 (d) (Art. 6-1, 6-3-d) of the Convention (para. 69).

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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MENCKEBERG v. THE NETHERLANDS

MENCKEBERG v. THE NETHERLANDS

LEXI