Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 14861/89

Radjinderpersad Roy LALA

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 4 May 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-17) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-7) . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 8-12). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 13-17) . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 18-31). . . . . . . . . . . . . . . . . . . . . . . . 3

A. Particular circumstances of the case

(paras. 18-24) . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 25-31) . . . . . . . . . . . . . . . . . . . . . 5

III. OPINION OF THE COMMISSION

(paras. 32-83). . . . . . . . . . . . . . . . . . . . . . . . 6

A. Complaint declared admissible

(para. 32) . . . . . . . . . . . . . . . . . . . . . . . 6

B. Point at issue

(para. 33) . . . . . . . . . . . . . . . . . . . . . . . 6

C. Article 6 of the Convention

(paras. 34-53) . . . . . . . . . . . . . . . . . . . . . 6

D. Conclusion

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

APPENDIX I : HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . .10

APPENDIX II : DECISION ON THE ADMISSIBILITY OF

THE APPLICATION . . . . . . . . . . . . . . . . . .11

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 national, born in 1961, and residing at

The Hague, the Netherlands. Before the Commission he is represented

by Mr. R. Angad-Gaur, a lawyer practising in The Hague.

3 The application is directed against the Netherlands, whose

Government are represented by their Agent, Mr. Karel de Vey Mestdagh

of the Netherlands Ministry of Foreign Affairs.

4 On 19 November 1986 the applicant was convicted and sentenced in

absentia by the Magistrate of the Regional Court of The Hague on

charges of fraud in respect of social security benefits.

5 On 21 September 1987 the Court of Appeal of The Hague quashed the

judgment of 19 November 1986 and convicted and sentenced the applicant,

again in absentia, for having committed fraud.

6 The Supreme Court rejected the applicant's appeal in cassation

on 27 September 1988.

7 The applicant complains under Article 6 paras. 1, 2 and 3 (c) of

the Convention that he did not have a fair trial because he was

convicted in absentia since, before the Court of Appeal, his lawyer was

not allowed to conduct his defence in his absence.

B. The proceedings

8 The application was introduced on 8 March 1989 and registered on

3 April 1989.

9 On 7 October 1991 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

10 The Government's observations were submitted on 16 December 1991.

The applicant submitted his observations in reply on 20 April 1992.

11 On 12 October 1992 the Commission declared the application

admissible and the parties were invited, should they so desire, to

submit further observations regarding the merits of the application.

No such observations were received.

12 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 of the case. 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

13 The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C. L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.F. REFFI

M. NOWICKI

14 The text of the Report was adopted on 4 May 1993 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 1 of the Convention.

15 The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

(1) to establish the facts, and

(2) to state an opinion as to whether the facts

found disclose a breach by the State concerned

of its obligations under the Convention.

16 A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application forms Appendix II.

17 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. Particular circumstances of the case

18 By summons of 17 September 1986 the applicant was ordered to

appear before the Magistrate (politierechter) of the Regional Court

(Arrondissementsrechtbank) of The Hague on charges of fraud concerning

social security benefits. It had appeared that the applicant, while

receiving social security benefits, was gainfully employed by a

temporary employment agency, whereas in his statements to the social

security service on his income he had stated to have had no income.

19 On 19 November 1986 the Magistrate convicted the applicant in

absentia and sentenced him to four weeks' imprisonment, of which two

weeks suspended with three years' probation. The Magistrate added as

a special condition that the applicant should repay the unlawfully

received benefits.

20 The applicant filed an appeal against this decision with the

Court of Appeal (Gerechtshof) of The Hague and by summons of

13 July 1987 was ordered to appear before the Court of Appeal on

7 September 1987.

21 The record (proces-verbaal terechtzitting) of the Court of

Appeal's hearing of 7 September 1987, insofar as relevant, reads as

follows:

" De voorzitter doet de zaak tegen na te noemen

verdachte uitroepen.

De verdachte genaamd:

Radjinderpersad Roy LALA,

geboren te (...) op (...),

wonende te 's-Gravenhage, (...),

is niet verschenen.

Als raadsman van verdachte is ter terechtzitting

aanwezig mr. B.R. Angad-Gaur, advocaat te 's-Gravenhage,

die mededeelt dat zijn cliënt niet ter terechtzitting zal

verschijnen, omdat er nog een geldboete tegen hem openstaat

en hij die geldboete niet kan betalen en derhalve de kans

loopt om meteen opgepakt te worden voor het uitzitten van

de vervangende hechtenis.

Op vordering van de procureur-generaal verleent het

gerechtshof verstek tegen de niet verschenen verdachte en

beveelt, dat met de behandeling van de zaak zal worden

voortgegaan.

(...)."

" The president has the case called against the accused named

hereinafter.

The accused named:

Radjinderpersad Roy LALA,

born in (...) on (...),

residing at The Hague, (...),

has not appeared.

As counsel of the accused is present at the hearing,

mr. B.R. Angad-Gaur, lawyer at The Hague, who states that

his client will not appear at the hearing, because a fine

imposed on him, which he is unable to pay, is still

outstanding and, that, therefore, he risks to be

apprehended immediately in order to serve the alternatively

imposed prison sentence.

Following the procurator-general's request the Court

of Appeal declares the accused in default of appearance and

orders that the examination of the case will be proceeded

with.

(...)."

22 On 21 September 1987 the Court of Appeal quashed the Magistrate's

judgment for technical reasons. After a new examination of the facts

and evidence, i.e. the applicant's confession of 24 April 1986 before

the police, a letter of 18 February 1986 of the Director of the

Municipal Social Service of The Hague concerning the applicant and

eighteen declarations signed and sent by the applicant to the Municipal

Social Service between July and November 1985 in which he had stated

that he had no income, the Court of Appeal convicted the applicant in

absentia for having committed fraud and sentenced him to two weeks'

imprisonment.

23 The applicant's appeal in cassation was rejected by the Supreme

Court (Hoge Raad) on 27 September 1988.

24 In respect of the applicant's complaint that the Court of Appeal

had unjustly failed to provide his lawyer with an opportunity to defend

him in his absence at the hearing before this Court, the Supreme Court

held:

"In gevallen waarin bij de aanvang van het onderzoek ter

terechtzitting de verdachte niet doch diens raadsman wel blijkt

te zijn verschenen, mag de rechter er van uitgaan dat deze,

indien hij ondanks de afwezigheid van de verdachte als zodanig

wil optreden, dit aan de rechter kenbaar maakt. Aangezien het

proces-verbaal der terechtzitting van het Hof niets inhoudt

waaruit kan worden afgeleid dat de raadsman aan het Hof heeft

kenbaar gemaakt dat hij als zodanig wilde optreden - noch zijn

enkele aanwezigheid, noch zijn verklaring van de afwezigheid van

zijn client kan daartoe dienen - moet het ervoor worden gehouden

dat hij dit niet heeft gedaan. Onder deze omstandigheden was het

Hof niet verplicht de raadsman toe te staan bij de behandeling

van de strafzaak tegen zijn client als zodanig op te treden."

"In cases where the accused has not appeared but his counsel is

present at the beginning of the court hearing, the court may

proceed on the assumption that if the accused's counsel wishes

to act as such despite the absence of his client, he will make

this known to the court. As the Court of Appeal's record of the

hearing contains nothing from which it could be derived that the

applicant's counsel made it known to the Court that he wished to

act in this capacity - neither his own presence nor his

explanation of his client's absence may be taken to imply this -

it must be assumed that he has failed to do this. Under these

circumstances, the Court was not obliged to allow the applicant's

counsel to act as such in the course of the hearing of the

criminal case against his client."

B. Relevant domestic law and practice

25 Under the Netherlands Code of Criminal Procedure a lawyer is not

entitled to conduct at the court's hearing the defence of a person

accused of having committed an offence punishable by a prison sentence,

where the latter has been declared in default of appearance.

26 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 EC member states in which civil

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

1982 nr. 269), and

- in cases where at the beginning of a court hearing the lawyer

explicitly requests the court to be allowed to conduct the accused's

defence and, in the court's opinion, there are compelling reasons

(klemmende redenen) preventing the appearance of the accused at the

hearing of his case, but the court sees no reasons to suspend the

hearing in order to enable the accused to appear at a hearing on

another date (Hoge Raad, judgment of 26 February 1980, N.J. 1980

nr. 246 and judgment of 16 February 1988, N.J. 1988 nr. 794; judgment

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

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

27 Concerning the second category the Supreme Court has held that

fear of arrest is no compelling reason (Hoge Raad, judgment of

24 November 1987, nr. 81 798).

28 Under Section 399 of the Code of Criminal Procedure it is

possible to file an objection (verzet) against a final conviction in

absentia.

29 An objection can be filed within fourteen days after the

pronouncement of the judgment, when the summons has been notified in

person and otherwise within fourteen days after the occurrence of a

situation from which it is clear that a person has become aware of his

conviction.

30 No objection can be raised against a conviction in absentia by

a first instance court against which an appeal may be lodged, or

against a conviction in absentia on appeal.

31 Sections 408 and 409 para. 2 of the Code of Criminal Procedure

contain safeguards that an accused will be able to make an effective

use of the possibility to file an appeal against a conviction in

absentia by a first instance court.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

32 The Commission has declared admissible the applicant's complaint

that he was convicted in absentia in proceedings in which his lawyer

was not given the opportunity to defend him.

B. Point at issue

33 Accordingly, the issue to be determined is whether there has been

a violation of Article 6 para. 1 and/or Article 6 paras. 2 and 3(c)

(Art. 6-1, 6-2, 6-3-c) of the Convention, as alleged by the applicant.

C. Article 6 (Art. 6) of the Convention

34 Article 6 paras. 1, 2 and 3(c) (Art. 6-1, 6-2, 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

(...).

2. Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law.

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 (...);

(...)."

35 The Government submit that, apart from regulations pertaining to

minors, Dutch law contains no obligation for an accused to appear at

the court hearing of his case. If present at the hearing he is entitled

to be assisted by counsel. If an accused chooses to be absent from the

hearing, he also renounces the possibility of conducting his own

defence and cannot have his defence conducted in his absence by

counsel. However, taking account of the Convention, criteria have been

developed in Dutch case-law, in respect of hearings involving an

offence punishable by a prison sentence, for allowing counsel to act

as such where the accused cannot be present in court. Counsel may then

act on the accused's behalf if the court finds that compelling reasons

prevent the accused from appearing at the session and there are no

grounds to adjourn the hearing for a set period.

36 The Government consider that the criminal proceedings against the

applicant complied with Article 6 (Art. 6) of the Convention. At each

stage of the proceedings - the hearing in first instance before the

Magistrate, the appeal proceedings before the Court of Appeal and the

appeal in cassation before the Supreme Court - there was a fair and

public hearing of the criminal case against the applicant by an

independent and impartial tribunal within a reasonable time.

37 The Government point out that the applicant was summoned to

appear at the hearings in person in accordance with the relevant

statutory provisions, and had the opportunity of conducting his

defence, but that he chose not to avail himself of this opportunity.

38 With reference to the Supreme Court's judgment of

27 September 1988 the Government submit that, as the applicant's lawyer

did not inform the Court of Appeal that he was present in his capacity

of defending counsel, the applicant is not entitled retroactively to

invoke his right to be defended.

39 The applicant submits that under Dutch law counsel for the

defence is under no obligation to appear before the court and that in

Dutch criminal proceedings it is hard to imagine any other reason for

the appearance of a counsel than to plead the defendant's case. The

applicant further states that his lawyer, pursuant to Section 39 of the

Dutch Code of Criminal Procedure, gave the court prior notice that he

would be acting for the applicant.

40 The applicant further states that his lawyer also endeavoured to

argue the applicant's case, but that the Court of Appeal did not allow

this in view of the applicant's absence, which, according to the

applicant, under the provisions contained in the Dutch Code of Criminal

Procedure entails proceedings in absentia.

41 The applicant finally states that counsel has no influence over

the drawing up of the court's record, as he is not allowed to plead on

his client's behalf or indeed to speak at all. Anything counsel may say

is disregarded and excluded from the record by the Registrar of the

Court of Appeal in order to prevent a disguised plea being made on the

defendant's behalf.

42 The Commission recalls that the guarantees in paras. 2 and 3 of

Article 6 (Art. 6-2, 6-3) of the Convention are specific aspects of the

right to a fair trial set forth in para. 1 of this provision (cf. Eur.

Court H.R., Barberà, Messegué and Jabardo judgment of 6 December 1988,

Series A no. 146, p. 31, para. 67). It will therefore examine the

applicant's complaint on the basis of view of these provisions taken

together.

43 The Commission notes that on 19 November 1986 the applicant was

convicted and sentenced in absentia by the Magistrate of the Regional

Court of The Hague on charges of fraud in respect of social security

benefits, and that on 21 September 1987 the Court of Appeal of The

Hague quashed the judgment of 19 November 1986 and convicted and

sentenced the applicant, again in absentia, for having committed fraud.

44 The Commission recalls that the guarantees set forth in Article 6

(Art. 6) of the Convention are in principle applicable to appeal

proceedings (cf. Eur. Court H.R., Delcourt judgment of 7 January 1970,

Series A no. 11, pp. 13-15, para. 25).

45 The Commission recalls that the right of an accused to

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

trial and that States must assure that this right is enjoyed in an

effective manner (Eur. Court H.R., Colozza judgment of

12 February 1985, Series A no. 89, p. 16, para. 32).

46 The Commission notes that at the hearing of 7 September 1987

before the Court of Appeal the applicant's lawyer was present.

However, under Dutch law it was not possible for the lawyer to present

the applicant's defence in view of the applicant's unexcused absence.

47 Under Article 6 para. 3 (c) (Art. 6-3-c) everyone charged with

a criminal offence may defend himself in person or "through legal

assistance of his own choosing" ("avoir l'assistance d'un défenseur de

son choix"). The applicant did not defend himself in person at his

trial before the Court of Appeal and does not complain that he was

prevented from doing so. But he claims that he was denied the right

to defend himself "through legal assistance of his own choosing", i.e.

through counsel who was present for him at the trial before the Court

of Appeal.

48 The Commission does not consider that the right to defend oneself

through legal assistance can only be invoked by defendants who are

themselves present at their trial. Nor does it find that a distinction

can be made, as regards entitlement to this right, between defendants

who are prevented from appearing at their trial and those who could or

should appear, but for reasons of their own prefer not to do so. It

is therefore irrelevant for the determination of the present complaint

whether or not the applicant should himself have appeared at his trial.

49 It follows that, although he himself had failed to appear, the

applicant was entitled under Article 6 para. 3 (c) (Art. 6-3-c) to

"legal assistance of his own choosing" at his trial before the Court

of Appeal. Therefore, in order to comply with this provision, the

Court of Appeal should have allowed counsel for the applicant, who was

present in the applicant's place, to make submissions on the

applicant's behalf. However, in accordance with Dutch practice in

criminal proceedings, this was not done, the applicant having been

found to be in default.

50 The Commission notes that the applicant could file an appeal in

cassation to the Supreme Court, of which opportunity he did in fact

avail himself. However this appeal was limited to points of law and,

therefore, did not lead to a fresh determination of the criminal

charges against him.

51 The Commission is of the opinion that the position adopted in

Dutch law, that a person - charged with an offence punishable by a

prison sentence - who chooses not to attend his trial in person,

usually loses his right to defend himself through his counsel is

incompatible with the respect for the fundamental guarantees which

every person charged with a criminal offence should enjoy. The need to

secure the attendance of an accused at the trial of his case cannot

justify proceeding to judgment against him without hearing the defence

he wishes to put forward through his counsel.

52 Considering the case under the general "fair hearing" clause of

Article 6 para. 1 (Art. 6-1) the Commission notes that the Court of

Appeal, after having quashed the conviction by the Magistrate of the

Regional Court, convicted and sentenced the applicant after hearing the

procurator-general but without giving the floor to counsel for the

defence, who was present. This infringed the principle of equality of

arms, an essential element of the right to a fair trial. Moreover,

having regard to the prominent place the right to a fair trial holds

in a democratic society, this infringement can again not be justified

by the need to secure the defendant's attendance at the hearing of his

case.

53 The Commission finds no separate issue under Article 6 para. 2

(Art. 6-2) of the Convention.

D. Conclusion

54 The Commission concludes unanimously that there has been a

violation of Article 6 para. 1 in conjunction with Article 6 para. 3(c)

(Art. 6-1+6-3-c) of the Convention.

Secretary to the Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

___________________________________________________________________

8 March 1989 Introduction of application

3 April 1989 Registration of application

Examination of admissibility

7 October 1991 Commission's decision to

invite the Government to

submit their observations

on the admissibility and

merits of the application

16 December 1991 Government's observations

20 April 1992 Applicant's observations in

reply

21 October 1992 Commission's decision to

declare the application

admissible. Commission's

decision to invite the

parties, should they so

desire, to submit further

observations on the merits of

the application

Examination of the merits

4 May 1993 Commission's deliberations

on the merits final vote

and adoption of the Report

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LALA v. the NETHERLANDS

LALA v. the NETHERLANDS

LEXI