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EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 24205/94

Fehmi ALAGÖZ

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 2 July 1996)

TABLE OF CONTENTS

Page

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PART I : STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . 2

PART II : SOLUTION REACHED . . . . . . . . . . . . . . . . . . . . 4

INTRODUCTION

1. This Report relates to the application introduced under Article

25 of the European Convention for the Protection of Human Rights and

Fundamental Freedoms by Mr. Fehmi Alagöz against the Netherlands on 12

July 1993. It was registered on 26 May 1994 under file No. 24205/94.

The applicant was represented by Mrs. Judith Serrarens, a lawyer

practising in Maastricht.

The respondent Government were represented by their Agent, Mr.

Karel de Vey Mestdagh, of the Netherlands Ministry of Foreign Affairs.

2. On 28 February 1996 the Commission (Second Chamber) declared the

application admissible. It then proceeded to carry out its task

under Article 28 para. 1 of the Convention which provides as follows:

"In the event of the Commission accepting a petition referred to

it:

a. it shall, with a view to ascertaining the facts, undertake

together with the representatives of the parties an examination

of the petition and, if need be, an investigation, for the

effective conduct of which the States concerned shall furnish all

necessary facilities, after an exchange of views with the

Commission;

b. it shall at the same time place itself at the disposal of

the parties concerned with a view to securing a friendly

settlement of the matter on the basis of respect for Human Rights

as defined in this Convention."

3. The Commission (Second Chamber) found that the parties had

reached a friendly settlement of the case and on 2 July 1996 it adopted

this Report, which, in accordance with Article 28 para. 2 of the

Convention, is confined to a brief statement of the facts and of the

solution reached.

The following members were present when the Report was adopted:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

PART I

STATEMENT OF THE FACTS

4. The applicant is a Turkish citizen, born in 1951 and at present

serving a prison sentence in Leeuwarden, the Netherlands.

5. Following adversarial proceedings before the Regional Court

(Arrondissementsrechtbank) of Zutphen and, subsequently, before the

Court of Appeal (Gerechtshof) of Arnhem, the applicant was convicted

on 31 March 1992 of drug offences and sentenced to twelve years'

imprisonment. At that time, the applicant was being held in detention

in a remand centre (huis van bewaring) in Arnhem.

6. The applicant lodged an appeal in cassation with the Supreme

Court (Hoge Raad) on 31 March 1992.

7. A notification (aanzegging) within the meaning of Section 437

para. 1 of the Code of Criminal Procedure (Wetboek van Strafvordering),

informing the applicant that his case would be heard by the Supreme

Court on 2 February 1993, never reached the applicant. In October 1992,

the office of the Procurator General at the Supreme Court contacted the

Arnhem remand centre where the applicant was being held at the time

when the appeal in cassation had been lodged on his behalf. The office

was informed that the applicant was no longer being held in this

institution. The Supreme Court then contacted the office of the

Procurator General at the Arnhem Court of Appeal, which informed it

that the applicant was not being held in any other remand centre in the

Netherlands.

8. Staff at the office of the Procurator General at the Supreme

Court subsequently made enquiries at the National Population Register

Inspectorate (Rijksinspectie van het Bevolkingsregister) to find out

whether the Inspectorate knew of any address in the Netherlands at

which the applicant was registered. On 30 October 1992, the

Inspectorate responded to this question in the negative.

9. On 26 October 1992, the notification was presented to the

Registrar (griffier) of the Hague Regional Court, pursuant to section

588 para. 5 of the Code of Criminal Procedure. On the notification it

was written that the applicant had at present no known place of

residence or abode in the Netherlands ("tzbwovhtl", i.e. thans zonder

bekende woon- of verblijfplaats hier te lande).

10. Between 5 October 1992 and 27 January 1993, the applicant was

detained in a penitentiary in Rotterdam, the Netherlands.

11. On 2 February 1993, a hearing was held by the Supreme Court.

Neither the applicant nor his lawyer was present.

12. On 16 March 1993, the Procurator General (Procureur-Generaal) at

the Supreme Court submitted his written conclusions. He stated that no

grounds for the applicant's appeal in cassation had been submitted and

that he had found no grounds on which the Court of Appeal's judgment

should be quashed.

13. On 18 May 1993, the Supreme Court rejected the applicant's appeal

in cassation. Noting that the applicant had not submitted grounds for

his appeal in cassation and after an examination ex officio of the

appeal, the Supreme Court stated that it found no grounds on which the

Court of Appeal's judgment should be quashed.

14. On 23 June 1993, a prison official informed the applicant that

the Supreme Court had rejected his appeal in cassation.

15. On 30 June 1994, the applicant started civil summary proceedings

(kort geding) against the State of the Netherlands, requesting his

immediate release on account of the judicial authorities' failure to

inform him of the date of the hearing of his case by the Supreme Court.

A hearing took place before the President of the Regional Court of The

Hague. The applicant stated, inter alia, that he would have liked to

submit grounds for his appeal in cassation, in particular concerning

the way in which evidence against him had been gathered. The

applicant's request was rejected.

16. Before the Commission the applicant complained that the failure

to notify him of the hearing of his case by the Supreme Court violated

his right to a fair trial under Article 6 paras. 1 and 3 (c) of the

Convention.

PART II

SOLUTION REACHED

17. Following the decision on the admissibility of the application,

the Commission (Second Chamber) placed itself at the disposal of the

parties with a view to securing a friendly settlement in accordance

with Article 28 para. 1 (b) of the Convention and invited the parties

to submit any proposals they wished to make.

18. In accordance with the usual practice, the Chamber Secretary,

acting on the Commission's instructions, contacted the parties to

explore the possibilities of reaching a friendly settlement.

19. By letter dated 1 April 1996, the applicant informed the

Commission that he was willing to reach a friendly settlement and he

submitted certain proposals to that end.

20. On 24 April 1996, the Government responded to the proposals put

forward by the applicant and expressed their willingness to agree to

a friendly settlement according to which the execution of the

applicant's prison sentence would be transferred to Turkey. The

Government stipulated, however, that they were unable to guarantee that

the transfer would take place shortly, since the speed of the

proceedings was also dependent on the cooperation of the Turkish

authorities. Moreover, the Government submitted that the transfer would

be conducted in accordance with the standard procedure, including the

necessary declaration of undesirability (ongewenst verklaring) of the

applicant.

21. By letter dated 15 May 1996, the applicant notified the

Commission that a friendly settlement on the terms formulated by the

Government was acceptable to him. He submitted a signed declaration

stating that he would not take any legal proceedings in respect of a

declaration of undesirability to be made against him. However, he

stipulated that the Government should undertake to arrange his transfer

to Turkey as soon as possible upon the adoption of the friendly

settlement by the Commission.

22. The Government informed the Commission on 21 May 1996 that they

would prepare the necessary requests and documents in order to be able

to act promptly as soon as the Commission had adopted its present

Report.

23. By letter of 20 June 1996, the applicant notified the Commission

that he accepted the Government's undertaking expressed in their letter

of 21 May 1996.

24. At its session on 2 July 1996, the Commission noted that the

parties had reached an agreement regarding the terms of a settlement.

It further considered, having regard to Article 28 para. 1 (b) of the

Convention, that the friendly settlement of the case had been secured

on the basis of respect for Human Rights as defined in the Convention.

25. For these reasons, the Commission adopted the present Report.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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ALAGÖZ v. THE NETHERLANDS

ALAGÖZ v. THE NETHERLANDS

LEXI