Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 25706/94

Hubert M.J.H. Roestenburg

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 16 October 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-11). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 12-16) . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-27). . . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 17-25) . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 26-27) . . . . . . . . . . . . . . . . . . . . . 4

III. OPINION OF THE COMMISSION

(paras. 28-37). . . . . . . . . . . . . . . . . . . . . . . . 5

A. Complaint declared admissible

(para. 28) . . . . . . . . . . . . . . . . . . . . . . . 5

B. Point at issue

(para. 29) . . . . . . . . . . . . . . . . . . . . . . . 5

C. Article 6 of the Convention

(paras. 30-36) . . . . . . . . . . . . . . . . . . . . . 5

CONCLUSION

(para. 37) . . . . . . . . . . . . . . . . . . . . . . . 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 1935, and resident in

Haaren, the Netherlands. He was initially represented by Mr. G. Spong,

a lawyer practising in The Hague, the Netherlands.

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 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 14 November 1994 and registered

on 18 November 1995.

6. On 18 May 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 10 August 1995.

The applicant replied on 29 August 1995.

8. On 19 October 1995 the Commission declared the application

admissible.

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

to the parties on 27 October 1995 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. On 20 November 1995 the applicant informed the Commission that

Mr. Spong no longer represented him.

11. 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

12. 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

13. 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.

14. 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.

15. The Commission's decision on the admissibility of the application

is annexed hereto.

16. 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

17. On 19 September 1990, the applicant was arrested. He was

subsequently detained on remand. He was released on 17 October 1990.

18. On 30 January 1991, the applicant was summoned to appear before

the Regional Court (Arrondissementsrechtbank) of 's-Hertogenbosch. The

Regional Court heard the case on 10 May 1991. Both the applicant and

his lawyer were present.

19. On 24 May 1991, the Regional Court convicted the applicant of

fraud and incitement to commit perjury and sentenced him to two years'

imprisonment, less the time spent in detention on remand.

20. The applicant filed an appeal against the judgment with the Court

of Appeal (Gerechtshof) of 's-Hertogenbosch.

21. On 12 January 1993, the Court of Appeal examined the case. The

applicant did not appear. His lawyer, however, was present. The

applicant's lawyer stated that he had not been in contact with his

client before the Court of Appeal's session. The Court of Appeal

declared the applicant in default of appearance and continued its

examination of the case. It heard one witness. The applicant's lawyer

was not given the opportunity to conduct the applicant's defence.

22. On 26 January 1993, the Court of Appeal quashed the Regional

Court's judgment for technical reasons, convicted the applicant of

fraud and incitement to commit perjury and sentenced him to two years'

imprisonment, less the time spent in detention on remand.

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 of the Convention. He argued that it is not required

that a lawyer must explicitly request permission to conduct the defence

of an absent client. Moreover, he added, when a lawyer appears at a

court session, it is obvious that he intends to conduct the defence of

his client.

24. On 15 March 1994, the Advocate General (Advocaat-Generaal) at the

Supreme Court submitted his written conclusions. He advised the Supreme

Court to reject the applicant's appeal in cassation because the minutes

of the hearing before the Court of Appeal did not indicate that the

applicant's lawyer had requested the Court of Appeal's permission to

conduct the defence of his client.

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 right of a lawyer to conduct the

defence of an accused before a court, where the latter has been

declared in default of appearance.

27. There are, however, according to the Netherlands Supreme Court's

case-law, two situations in which a court must allow a lawyer to

conduct the defence in the absence of the accused:

- in cases concerning nationals of EU member states in which civil

liability issues arise (Hoge Raad, judgment of 17 November 1981, N.J.

1982 nr. 269), and

- in cases where there are compelling reasons (klemmende redenen)

preventing the appearance of an accused at the hearing of his case

(Hoge Raad, judgment of 26 February 1988, N.J. 1988 nr. 794) and where

a lawyer has made an explicit request to that effect to the court (Hoge

Raad, judgment of 14 November 1986, N.J. 1987 nr. 862 and judgment of

18 September 1989, N.J. 1990 nr. 145).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

28. 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

29. 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. Article 6 of the Convention

30. 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 ... "

31. 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.

32. 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. The

Government are also considering amending the law on this point.

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

Commission.

34. 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).

35. 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).

36. The Commission finds that there is nothing in the present

application which would lead to a different conclusion.

CONCLUSION

37. The Commission concludes, unanimously, that in the present case

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

6-3-c) of the Convention.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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M.J.H. ROESTENBURG v. THE NETHERLANDS

M.J.H. ROESTENBURG v. THE NETHERLANDS

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