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EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 23737/94

M.A.A.A. V.S.

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 10 September 1996)

TABLE OF CONTENTS

Page

I. THE PARTIES. . . . . . . . . . . . . . . . . . . . . . .1

(paras. 1-3)

II. SUMMARY OF THE FACTS . . . . . . . . . . . . . . . . . .1

(paras. 4-9)

III. THE PROCEEDINGS BEFORE THE COMMISSION. . . . . . . . . .1

(paras. 10-22)

IV. THE DECISION OF THE COMMISSION . . . . . . . . . . . . .4

(paras. 23-24)

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . . . .5

I. THE PARTIES

1. This Report, which is drawn up by the European Commission of

Human Rights (Second Chamber) in accordance with Article 30 para. 1 of

the Convention, concerns the application brought by Mario André Antonio

Alexander van Soest against the Netherlands.

2. In the proceedings before the Commission the applicant was

represented by Mr. H.G. Kersting, a lawyer practising in Amsterdam.

3. The respondent Government were represented by their Agent,

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

II. SUMMARY OF THE FACTS

4. The facts of the case are set out in the Commission's decision

on admissibility of 4 July 1995, attached hereto as an appendix, and

can be summarised as follows:

5. On 21 October 1991, following a hearing at which neither the

applicant nor his lawyer had appeared, the Magistrate (Politierechter)

at the Regional Court (Arrondissementsrechtbank) of Amsterdam convicted

the applicant, in absentia, of theft and sentenced him to two months'

imprisonment.

6. The applicant filed an appeal against this judgment with the

Court of Appeal (Gerechtshof) of Amsterdam. At the hearing before the

Court of Appeal, which took place on 4 March 1993, the applicant did

not appear. His lawyer, however, was present. The Court of Appeal

declared the applicant in default of appearance and started its

examination. The applicant's lawyer was not provided with the

opportunity to conduct the defence of the applicant in view of the

latter's absence.

7. On 18 March 1993, the Court of Appeal quashed the Regional

Court's judgment on technical grounds, convicted the applicant of theft

and sentenced him to two months' imprisonment.

8. The Supreme Court (Hoge Raad) rejected the applicant's appeal in

cassation on 14 December 1993.

9. Before the Commission the applicant complains that his defence

lawyer was not allowed to conduct the defence in the absence of the

applicant. He invokes Article 6 paras. 1 and 3 (c) of the Convention.

III. THE PROCEEDINGS BEFORE THE COMMISSION

10. The application was introduced on 2 May 1994 and registered on

6 May 1994.

11. On 30 November 1994, the Commission 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.

12. The Government's observations were submitted on 16 February 1995.

The applicant's representative informed the Commission on 28 April 1995

that the applicant did not wish to avail himself of the opportunity to

submit observations in reply.

13. On 4 July 1995, the Commission declared the applicant's complaint

under Article 6 paras. 1 and 3 (c) of the Convention admissible. It

declared inadmissible the remainder of the application.

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

to the parties on 20 July 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.

15. 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. On 30 August 1995, the Government submitted a

proposal for a friendly settlement which was transmitted to the

applicant for comments. No reply having been received, the applicant's

representative was informed by the Commission's Secretariat on

16 November 1995 that if no comments had been submitted by 1 December

1995 it would be assumed that the applicant saw no merit in the

securing of a friendly settlement. The applicant's representative did

not reply.

16. On 6 February 1996, the Secretariat informed the applicant's

representative that the letter of authority, required pursuant to Rule

43 para. 3 of the Commission's Rules of Procedure, had still not been

submitted. On the same day and by registered letter, the applicant was

sent a letter of authority to be signed and returned by him before

26 February 1996. The applicant was informed that his application could

be struck off the Commission's list of cases pursuant to Article 30

para. 1 (a) of the Convention.

17. On 29 February 1996, the applicant's representative informed the

Commission that the applicant had moved to a new address but that he

was not aware of this address. He requested an extension of three

months of the time-limit fixed for the purpose of the submission of the

letter of authority.

18. On 7 March 1996, the letter sent to the applicant on 6 February

1996 was returned to the Secretariat as the applicant had not been

present at the address provided in the application form and although

a notice of arrival of a registered letter had been left at this

address by the postal authorities, the applicant had not collected the

letter from the local post office.

19. By letter of 20 March 1996, the applicant's representative

informed the Commission of the address at which the applicant was

registered as living according to the Municipal Registers (Registers

van de Burgerlijke Stand) of Amsterdam. A copy of the Secretariat's

letter of 6 February 1996 was sent by registered mail to this address

on 25 March 1996. The applicant was requested to return the enclosed

letter of authority before 9 April 1996.

20. On 11 April 1996, the Commission decided to adjourn the

examination of the merits of the application in view of the fact that

the applicant's letter of authority had not yet been received. The

applicant's representative was requested on 10 May 1996 to inform the

Commission before 24 June 1996 whether or not a letter of authority

would be forthcoming. No reply has been received.

21. On 10 September 1996, the Commission (Second Chamber) adopted the

present Report, in accordance with Article 30 para. 1 in fine of the

Convention.

22. The following members were present when the Report was adopted:

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

M. VILA AMIGÓ

IV. THE DECISION OF THE COMMISSION

23. The Commission notes that no letter of authority as required by

Rule 43 para. 3 of the Commission's Rules of Procedure has been

submitted in the present case and that the applicant has failed to

respond to requests to provide the Commission with such a document.

24. Having regard to Article 30 para. 1 (a) of the Convention, the

Commission concludes that in the circumstances of the present case the

applicant does not intend to pursue his petition. It finds no special

circumstances regarding respect for human rights as defined in the

Convention which require examination of the application to be

continued, in accordance with Article 30 para. 1 in fine of the

Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION NO. 23737/94 OFF ITS LIST OF

CASES;

ADOPTS THE PRESENT REPORT;

DECIDES TO SEND THE PRESENT REPORT to the Committee of Ministers

for information, to send it also to the parties' representatives

and to publish it.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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M.A.A.A. V.S. v. THE NETHERLANDS

M.A.A.A. V.S. v. THE NETHERLANDS

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