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S.D.R. v. THE NETHERLANDS

Doc ref: 23699/94 • ECHR ID: 001-45768

Document date: October 24, 1995

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S.D.R. v. THE NETHERLANDS

Doc ref: 23699/94 • ECHR ID: 001-45768

Document date: October 24, 1995

Cited paragraphs only

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 23699/94

S.D.R.

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 24 October 1995)

TABLE OF CONTENTS

Page

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

PART I : STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . 3

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 S.D.R. against the Netherlands on

4 March 1994. It was registered on 17 March 1994 under file

No. 23699/94.

The applicant was represented by Mr. B.R. Angad Gaur, a lawyer

practising in The Hague.

The Government of the Netherlands were represented by their

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

Affairs.

2. On 4 July 1995 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 24 October 1995 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

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

PART I

STATEMENT OF THE FACTS

4. The applicant is a Dutch citizen, born in 1944, and resides at

The Hague. Before the Commission he is represented by Mr. B.R. Angad

Gaur, a lawyer practising in The Hague.

5. On 20 December 1991, the Magistrate (Politierechter) at the

Regional Court (Arrondissementsrechtbank) of The Hague convicted the

applicant, in absentia, of driving under the influence of alcohol and

sentenced him to two weeks' imprisonment and twelve months'

disqualification from driving a motor vehicle. The applicant filed an

appeal against the Magistrate's judgment with the Court of Appeal

(Gerechtshof) of The Hague. He was summoned to appear before the Court

of Appeal on 13 January 1993.

6. On 13 January 1993, the applicant did not appear before the Court

of Appeal. His lawyer, however, was present. The Court of Appeal

declared the applicant in default of appearance. Although the minutes

of the hearing do not state this, the applicant alleges that his lawyer

asked for the Court of Appeal's permission to conduct the applicant's

defence.

7. On the same day, the Court of Appeal quashed the Magistrate's

judgment on technical grounds, convicted the applicant, in absentia,

of driving under the influence of alcohol and sentenced him to two

weeks' imprisonment and twelve months' disqualification from driving

a motor vehicle.

8. The applicant's subsequent appeal in cassation, in which he

complained that the Court of Appeal had not allowed his lawyer to

conduct his defence in his absence, was rejected on 30 November 1993

by the Supreme Court (Hoge Raad).

9. Before the Commission the applicant complained under Article 6

of the Convention that as, before the Court of Appeal, his lawyer had

not been allowed to conduct his defence he had not received a fair

trial in the determination of the criminal charges against him.

PART II

SOLUTION REACHED

10. 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.

11. 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.

12. The Government notified the Commission, by letter dated

30 August 1995, that they were prepared to consider a friendly

settlement and submitted proposals to this end. According to these

proposals, the Government were willing to pay the applicant, in full

and final settlement of the matter, the legal costs he had incurred in

the proceedings before the Commission and an ex gratia payment of

100 Dutch guilders for non-pecuniary damages.

13. On 2 October 1995, the applicant's representative informed the

Commission that the applicant accepted the Government's offer.

14. The parties have informed the Commission that it has been agreed

between them that the legal costs incurred by the applicant in the

proceedings before the Commission amount to 1,179.25 Dutch guilders.

15. At its session on 24 October 1995, 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.

16. 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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