Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 16737/90

S.P.

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 4 May 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

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

B. The proceedings

(paras. 8-13). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 14-18) . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 19-37). . . . . . . . . . . . . . . . . . . . . . . . 3

A. Particular circumstances of the case

(paras. 19-29) . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 30-37) . . . . . . . . . . . . . . . . . . . . . 5

III. OPINION OF THE COMMISSION

(paras. 38-62). . . . . . . . . . . . . . . . . . . . . . . . 6

A. Complaint declared admissible

(para. 38) . . . . . . . . . . . . . . . . . . . . . . . 6

B. Point at issue

(para. 39) . . . . . . . . . . . . . . . . . . . . . . . 6

C. Article 6 of the Convention

(paras. 40-60) . . . . . . . . . . . . . . . . . . . . . 6

D. Conclusion

(para. 61) . . . . . . . . . . . . . . . . . . . . . . . 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 Mauritian national, born in 1947, and resides

at Quatre Bornes, Mauritius. Before the Commission he is represented

by Mr. Vincent Kraal, a lawyer practising in Amsterdam.

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 21 August 1986 the Regional Court of Haarlem convicted the

applicant of unintentional importation of heroin and sentenced him to

six months' imprisonment.

5 On 5 February 1988 the Court of Appeal of Amsterdam quashed the

judgment of 21 August 1986, convicted the applicant in absentia for

intentional importation of heroin and sentenced him to nine years'

imprisonment.

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

on 24 October 1989.

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

Convention that he was deprived of a fair trial in the determination

of the criminal charges against him as he was convicted without having

had the opportunity to defend himself through his counsel, 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 17 April 1990 and registered

on 18 June 1990.

9 On 8 November 1990 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 31 January 1991.

The applicant submitted his observations in reply on 17 May 1991.

11 On 11 January 1993 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.

12 By letter of 26 February 1993 the Government submitted further

observations. No such observations were received from the applicant.

13 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

14 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

15 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.

16 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.

17 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.

18 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

19 On 27 December 1985 the applicant was arrested at Schiphol

airport when entering the Netherlands, as about 20 kilogrammes of

heroin and methaqualone had been found in his luggage.

20 The applicant was primarily charged with, either intentional or

unintentional, importation of heroin into the Netherlands and,

alternatively, with either intentional or unintentional possession of

heroin.

21 On 21 August 1986 the Regional Court (Arrondissementsrechtbank)

of Haarlem, after hearing the applicant, convicted him of unintentional

importation of heroin, sentenced him to six months' imprisonment,

lifted the order for his detention on remand and ordered his immediate

release. The applicant was subsequently expelled from the Netherlands.

22 Both the public prosecutor and the applicant filed an appeal

against this judgment.

23 At the hearing of 10 February 1987, before the Court of Appeal

(Gerechtshof) of Amsterdam, the applicant's lawyer requested the Court

to be allowed to conduct the applicant's defence, as, in view of his

place of residence, the applicant was unable to appear in person at the

hearing. The Court rejected this request, considering that no

compelling reasons (dringende redenen) for the applicant's absence had

become apparent, and continued its examination of the case. The Court

subsequently declared the applicant in default of appearance and

started the examination of the case.

24 In its judgment of 24 February 1987 the Court of Appeal stated

that it had appeared during its deliberations that its examination had

not been complete. The Court of Appeal allowed the procurator-general

to add further documents to the case-file and decided to reopen its

examination and to resume it in the course of a hearing on a later

date.

25 On 20 November 1987 the Court of Appeal resumed the proceedings

in a different composition and recommenced its examination of the case.

At the beginning of the hearing the applicant's lawyer requested

permission to represent (vertegenwoordigen) the applicant within the

meaning of Section 270 of the Netherlands Code of Criminal Procedure

(Wetboek van Strafvordering) in respect of the alternative charge of

possession of heroin. The Court rejected the request, considering that

it had neither been stated nor appeared that the applicant had

authorised the lawyer to represent him and as, in any event, it would

first examine the principal charge of importation of heroin for which

representation within the meaning of Section 270 of the Code of

Criminal Procedure was not allowed, this being a criminal offence

punishable by a prison sentence.

26 Following an adjournment, the Court of Appeal resumed its hearing

on 22 January 1988, when the applicant's lawyer submitted a written

authorisation to represent the applicant. The Court again rejected the

request for representation within the meaning of Section 270 of the

Code of Criminal Procedure stating that it would first consider the

principal charge for which representation was not allowed.

27 By judgment of 5 February 1988 the Court of Appeal quashed the

Regional Court's judgment of 21 August 1986 on the basis of a different

assessment of the evidence, convicted the applicant in absentia of

intentional importation of heroin into the Netherlands and sentenced

him to nine years' imprisonment with deduction of the time spent in

custody.

28 The applicant's subsequent appeal in cassation was rejected by

the Supreme Court (Hoge Raad) on 24 October 1989. In respect of the

applicant's complaint that his lawyer's request of 10 February 1987 had

been wrongly rejected the Supreme Court held that, as the Court of

Appeal had recommenced its examination of the applicant's appeal on

20 November 1987, the rejection of this request could not entail the

nullity of the judgment of 5 February 1988 which was based on this new

examination. In respect of the complaint that the lawyer's request of

20 November 1987 and 22 January 1988 to represent the applicant within

the meaning of Section 270 of the Code of Criminal Procedure had been

wrongly rejected the Supreme Court considered that, as the first charge

to be heard was the principal charge, which is punishable by a prison

sentence, the Court of Appeal's decision to reject the request for

representation was well-founded.

B. Relevant domestic law and practice

29 Under Section 270 of the Code of Criminal Procedure a person

accused of an offence not punishable by a prison sentence has the

possibility, when he does not wish to appear in person at the court's

hearing of his case, to have himself represented by a lawyer authorised

to act in his name (vertegenwoordiging).

30 The court is free to allow or to reject the representation. If

it rejects such a request, the court must adjourn its hearing in order

to provide the accused with an opportunity to attend the hearing of his

case in person.

31 A representative cannot act as defence counsel, although only a

lawyer can act as either. According to the Supreme Court the same

lawyer cannot act both as a representative and a defence counsel in the

same proceedings. These functions are considered incompatible (Hoge

Raad, judgment of 25 April 1989, N.J. 1990 nr. 91).

32 Under the Netherlands Code of Criminal Procedure a counsel is not

entitled to defend a person accused of having committed an offence at

the trial, where the latter has been declared in default of appearance.

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

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

requests the court to be allowed to conduct the accused's defence and

there are, in the court's opinion, 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).

34 In a judgment of 26 June 1990 the Supreme Court considered that

the Court of Appeal could not, in view of the defence counsel's

arguments that the accused at issue resided in France and that the

costs of travel to and stay in the Netherlands were considerable,

reject counsel's request to defend the absent accused without giving

any reasons (N.J. 1991 nr. 174).

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

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

absentia.

36 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.

37 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.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

38 The Commission has declared admissible the applicant's complaint

that he was convicted in absentia in proceedings in which his counsel's

request to defend him was refused.

B. Point at issue

39 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 (Art. 6) of the Convention

40 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 (...);

(...)."

41 The Government state that representation pursuant to Section 270

of the Code of Criminal Procedure is possible in relatively minor

criminal cases concerning offences not punishable by a prison sentence

and that, in practice it is admitted in cases where the facts are

scarcely disputed, if at all, and in which an accused's appearance in

person is not deemed necessary for the trial.

42 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 an accused chooses to be absent from

the hearing, he also renounces the possibility of defence. In that case

it is by no means a forgone conclusion that the accused may arrange to

be defended in absentia 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 in cases where the accused cannot be

present in court. Counsel may act on the accused's behalf if the court

finds that compelling reasons prevent the accused from appearing at the

session and if the court finds no grounds to adjourn the hearing.

43 The Government state that on appeal the procurator-general

(procureur-generaal) requested a twelve years' prison sentence for

intentional importation of heroin. It is not beyond the bounds of

probability that the risk that the applicant would be imprisoned

immediately when he would appear at the hearing before the Court of

Appeal was the reason for his failure to appear in court, given that

he would have had reason to suspect that the Court of Appeal might

quash the Regional Court's judgment and impose a different sentence.

44 With reference to the Supreme Court's judgment of

24 October 1989, the Government submit that representation within the

meaning of Section 270 of the Code of Criminal Procedure was not

possible since the offence at issue is punishable by a prison sentence.

At the hearings of 20 November 1987 and 22 January 1988 before the

Court of Appeal, the applicant's counsel did not argue that compelling

reasons prevented the applicant from attending his trial before the

Court of Appeal. Therefore the Supreme Court could only examine the

rejection of counsel's request to represent him pursuant to Section 270

and could not examine the Court of Appeal's first decision of

10 February 1987, when it rejected counsel's request - invoking the

existence of compelling reasons for the applicant's absence - to defend

the applicant as the Court of Appeal had changed its composition and

had recommenced its examination.

45 The Government submit that the applicant's residence abroad did

not justify his absence from his trial. The Netherlands did not prevent

him from attending his trial in the Netherlands.

46 The applicant submits that not only the public prosecutor but

also he filed an appeal against the decision of the Regional Court of

21 August 1986 and that he provided his lawyer with a written

authorisation to represent him in the appeal proceedings.

47 He submits that the Court of Appeal should have adjourned its

examination pursuant to Section 270 following the rejection of his

counsel's request. He was entitled to assume that, following two

adjournments attributable to the public prosecution, the Court of

Appeal would not suddenly deal with his case in his absence without an

adjournment, as he could not be expected to make the long and expensive

journey from Mauritius to Amsterdam, running the risk that the case

might then not be dealt with.

48 The applicant contests the Government's allegation that he did

not appear before the Court of Appeal for fear of immediate arrest. He

submits that a request for his immediate arrest would have been

rejected by the court.

49 The applicant finally submits that the compelling reason for his

absence at hearing of his case was not just the fact that he was

residing abroad, but that he resides in Mauritius, which lies at a

considerable distance from Amsterdam and that he should have been able

to rely on his counsel for his defence or at least expect, when

representation was refused, that the hearing would be adjourned.

50 The Commission recalls that the guarantees in para. 3 of

Article 6 (Art. 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 these provisions taken together.

51 The Commission notes that the Regional Court, following

proceedings the applicant attended in person, in its judgment of

21 August 1986 convicted the applicant of unintentional importation of

heroin, sentenced him to six months' imprisonment and ordered his

release, and that he was subsequently expelled from the Netherlands.

The Commission further notes that both the public prosecutor and the

applicant, assisted by his counsel, filed an appeal against the

judgment of 21 August 1986, and that on 5 February 1988 the Court of

Appeal of Amsterdam quashed the judgment of 21 August 1986, convicted

the applicant in absentia of intentional importation of heroin and

sentenced him to nine years' imprisonment.

52 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).

53 The Commission notes that the applicant's counsel was present at

the hearings before the Court of Appeal and that he repeatedly

expressed the wish to conduct the applicant's defence.

54 The Commission further notes that the case concerned serious

charges and that the Court of Appeal was, inter alia, called upon to

examine the appeal by the prosecution seeking a conviction for

intentional importation of heroin and requesting a sentence of twelve

years' imprisonment, whilst the applicant in first instance had been

convicted of unintentional importation of heroin and sentenced to six

months' imprisonment.

55 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, since he was residing in Mauritius.

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.

56 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 duly represented pursuant to Section 270 of the Code of

Criminal Procedure and defendants who are duly represented by defence

counsel.

57 It follows that, although he failed to appear before the Court

of Appeal, 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 rules on representation pursuant to Section 270 of the Code of

Criminal Procedure, this was not done and the applicant was

subsequently found to be in default of appearance.

58 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.

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

Dutch law, that an accused who does not attend his trial in person in

principle 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.

60 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 Regional Court,

convicted and sentenced the applicant after having heard the

procurator-general but without having given the floor to counsel for

the defence, who was present at the respective hearings. 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.

D. Conclusion

61 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

___________________________________________________________________

17 April 1990 Introduction of application

18 June 1990 Registration of application

Examination of admissibility

9 November 1990 Commission's decision to

invite the Government to

submit their observations

on the admissibility and

merits of the application

31 January 1991 Government's observations

17 May 1991 Applicant's observations in

reply

11 January 1993 Commission's decision to

declare the applicantion

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

26 February 1993 Government's further

observations

4 May 1993 Commission's deliberations

on the merits, final vote

and adoption of the Report

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S.P. v. the NETHERLANDS

S.P. v. the NETHERLANDS

LEXI