Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29202/95

by Herman Olivier ZOON

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 14 January 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM. I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 June 1995 by

Herman Olivier ZOON against the Netherlands and registered on

10 November 1995 under file No. 29202/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

27 March 1997 and the observations in reply submitted by the

applicant on 1 May 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1950, and residing in

Calpe, Spain. Before the Commission he is represented by

Mr. G.H.J. Dolk, a lawyer practising in Rotterdam, the Netherlands.

The facts of the case, as submitted by the parties, may be

summarised as follows.

A. The particular circumstances of the case

The applicant was working as a general practitioner in Dirksland,

the Netherlands.

On 9 September 1993 preliminary judicial investigations were

initiated into allegations of forgery and fraud perpetrated by the

applicant.

In the course of the investigations, when he was being held in

detention on remand, the applicant stated on his own initiative that

in March 1993 he had performed euthanasia on, and at the request of,

one of his patients. However, he had informed the municipal coroner

(gemeentelijk lijkschouwer) that the patient had died from natural

causes.

The applicant was then summoned to appear before the Regional

Court (Arrondissementsrechtbank) of Rotterdam on the following charges:

(1) principally: murder;

alternatively: taking another person's life at that person's

request;

(2) falsifying the official record concerning the cause of a person's

death in his capacity of doctor;

(3) falsifying prescriptions;

(4) forging and presenting prescriptions for the acquisition of an

opiate.

On 30 August 1994 the applicant filed an objection against the

indictment with the Regional Court.

Following a hearing in camera on 2 December 1994, the Regional

Court dismissed the objection.

On 27 April 1995 a public hearing took place before the Regional

Court, during which the case was investigated on the merits. Both the

applicant and his defence counsel, two lawyers from the same law firm

in Rotterdam, were present. In his pleadings, counsel for the applicant

argued, inter alia, that the obligation imposed by law on a doctor to

inform the coroner of a death from unnatural causes infringed the

applicant's right not to give evidence against himself as enshrined in

Article 6 of the Convention. For that reason, according to counsel, the

applicant should not have been prosecuted for the offence of falsifying

an official record.

On 11 May 1995 the judgment of the Regional Court was read out

in public and in the presence of the applicant's defence counsel.

According to the Government, at this occasion the President of the

Regional Court read out the considerations relating to the validity of

the indictment, the main considerations underlying the dismissal of the

defence plea concerning the admissibility of the prosecution, a summary

of considerations relating to the evidence, and considerations as to

whether the applicant was criminally liable. The applicant submits,

however, that his lawyers only heard the President state that he was

acquitted of the principal charge under (1) and of the charge under

(4), that the defence in respect of the alternative charge under (1)

was rejected, that the applicant was found guilty of the alternative

charge under (1) and the charges under (2) and (3), and that the

seriousness of these offences warranted a suspended term of

imprisonment of six months and a fine of 50,000 Dutch guilders.

As to a written copy of the judgment, the Government submit that

they have ascertained that a signed abridged version (kop-staart

vonnis) was available when judgment was pronounced on 11 May 1995 and

that it was the policy of the Rotterdam Regional Court at the relevant

time to provide a copy of the abridged judgment if this was requested

in writing. According to the applicant, however, his lawyer telephoned

the Regional Court's registry before the expiry of the period within

which an appeal could be filed and he was told that no judgment was

available. Furthermore, the applicant's lawyer was not aware that the

Regional Court had a policy of only issuing copies of judgments upon

a request in writing.

On 25 May 1995 the time-limit for the lodging of an appeal

expired and, no appeal having been instituted by either the applicant

or the public prosecutor, the Court's judgment became final. The

applicant is still not in possession of a copy of the judgment.

B. Relevant domestic law and practice

Pursuant to Section 359 para. 1 of the Code of Criminal Procedure

(Wetboek van Strafvordering, hereinafter referred to as "CCP"), a

judgment must contain the means of evidence on which a conviction is

based. However, since - pursuant to Section 345 para. 3 CCP - the court

has to deliver the judgment within fourteen days following the closure

of the trial, it was not unusual at the relevant time that initially

an abridged judgment would be drafted in cases where the accused was

convicted. Such a judgment does not account for the means of evidence

on which the conviction is based. A complete version of the judgment

is not prepared unless the convicted person or the public prosecutor

lodges an appeal against the judgment. In that case the means of

evidence are included in the judgment and the case-file, including the

complete judgment, is transmitted to the appeal court. This practice

has been enacted in Sections 138 (b) and 365 (a) CCP which have entered

into force on 1 November 1996. If no appeal is lodged a complete

judgment will be made available upon request of the prosecutor or the

accused or his lawyer within three months after delivery of the

judgment, unless this request is devoid of reasonable interest (Section

365 (c) paras. 1 and 2 CCP, which also entered into force on 1 November

1996).

A judgment is signed within 48 hours after its delivery by the

judges who examined the case (Section 365 para. 1 CCP). The accused or

his counsel may inspect the judgment and the minutes of the hearings

as soon as the judgment has been signed (Section 365 para. 3 CCP).

Pursuant to Section 404 in conjunction with Section 408

para. 1 (a) CCP, an appeal against the Regional Court's judgment should

be lodged with the Court of Appeal (Gerechtshof) within fourteen days

following the day on which this judgment was read out in public. Once

lodged, the appeal may be withdrawn by the person who instigated it at

the latest just prior to the start of the hearing on appeal (Section

453 para. 1 CCP).

In a decision of 1986 the Supreme Court (Hoge Raad) held that an

appeal filed outside the fourteen day period is inadmissible even if

the accused or his counsel have, through no fault of their own, been

unable to inspect the judgment of the Regional Court within the

fourteen day period (judgment of 11.11.86, Nederlandse Jurisprudentie

[NJ] 1987, 568).

When the Court of Appeal examines the case, it should have a

complete version of the judgment of the lower court. If this is not the

case, the judgment is null and void and should be quashed (vernietigd)

by the Court of Appeal on formal grounds pursuant to Section 359 paras.

1 and 10 CCP. However, this does not entail that the Court of Appeal

should refer the case back to the Regional Court: Section 423 para. 2

CCP provides that a case should be referred back to a Regional Court

only if the judgment is quashed and the Regional Court had not decided

on the merits of the case. This provision thus embodies the principle

of the right to be tried by courts at two levels competent to examine

the facts.

The appeal proceedings before the Court of Appeal offer a full

new hearing since most of the provisions of the CCP which apply to the

proceedings before the lower court also apply on appeal (Section 415

CCP). The accused, who has lodged the appeal, may submit his objections

and possible additional objections in writing, both before and during

the hearing on appeal. He may also submit additional objections orally

in the course of the hearing on appeal until the formal closure of the

appeal court's examination (Sections 416 and 311 paras. 1 and 4 CCP).

In a case which led to a decision of the Supreme Court on

17 September 1990, the accused complained before the Court of Appeal

that the judgment of the first instance court did not contain the means

of evidence. The Court of Appeal subsequently quashed the judgment

because of the lack of means of evidence but it did not refer the case

back to the Regional Court, since this latter court had decided on the

merits of the case. In cassation the applicant invoked Article 6

para. 3 of the Convention. The Advocate General (Advocaat-Generaal) at

the Supreme Court submitted as his opinion that the fact that the

judgment of the first instance court had not contained the means of

evidence did not prevent the accused from conducting his defence on

appeal since:

1. an accused does not have to defend himself against the

judgment by which he was convicted but against the accusation

levelled against him by the public prosecution department; and

2. the Court of Appeal examines the case independently on the

basis of the trial and the indictment and not on the basis of the

judgment of the first instance court.

The Supreme Court rejected the appeal in cassation and for its

reasoning referred to the opinion of the Procurator General (NJ 1991,

12).

When only the accused has filed an appeal, the Court of Appeal

may impose a heavier sentence than imposed in first instance if that

decision is reached unanimously (Section 424 para. 2 CCP). Unanimity

is not required if the public prosecutor has also filed an appeal. If

it is found that the public prosecutor has filed an appeal with the

sole aim of preventing Section 424 para. 2 from applying, his appeal

may be declared inadmissible (Supreme Court 22 June 1982, NJ 1983, 73

and 29 March 1983, NJ 1983, 482).

Section 293 of the Criminal Code (Wetboek van Strafrecht) makes

it a criminal offence to take another person's life at that person's

express and earnest request.

Pursuant to Section 10 of the Act on the Disposal of the Dead

(Wet op de Lijkbezorging) the municipal coroner is required to notify

the Public Prosecutor's Department if a death from unnatural causes has

been reported. The question whether this provision is in contravention

of the right not to incriminate oneself has been widely discussed in

Dutch legal literature. The Supreme Court has not yet decided upon this

issue.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that

since he had not been provided with a copy of the judgment of the

Regional Court he was not aware of the reasons underlying this judgment

when he had to decide whether or not to file an appeal against his

conviction.

2. The applicant furthermore complains that Section 10 of the Act

on the Disposal of the Dead, according to which he should have informed

the municipal coroner that his patient had not died from natural

causes, violates the principle of nemo tenetur enshrined in Article 6

of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 June 1995 and registered on

10 November 1995.

On 27 November 1996 the Commission decided to communicate the

application to the respondent Government. It requested the parties to

answer a number of questions concerning the applicant's first

complaint.

The Government's written observations were submitted on 27 March

1997, after an extension of the time-limit fixed for that purpose. The

applicant replied on 1 May 1997.

THE LAW

1. The applicant complains that he was not provided with a copy of

the judgment of the Regional Court of Rotterdam and was thus unaware

of the reasoning applied, and means of evidence used, in this judgment

when he had to decide whether or not to file an appeal. He invokes

Article 6 (Art. 6) of the Convention which, insofar as relevant,

provides as follows:

"1. In the determination ... of any criminal charge against

him, everyone is entitled to a fair ... public hearing ... by a

... tribunal established by law. ...

3. Everyone charged with a criminal offence has the following

minimum rights:

...

b. to have adequate time and facilities for the preparation of

his defence;

..."

The Government submit in the first place that an abridged version

of the judgment of the Regional Court was available from the registry

of that Court and that, according to the practice of the Court, the

applicant could have obtained a copy by submitting a request to that

effect in writing. If the applicant had lodged an appeal a complete

version of the judgment would have been produced and made available to

him. This would not have entailed any costs for the applicant and

neither would he have had to give any reasons for the appeal which he

could have withdrawn without any further consequences at any time prior

to the hearing.

According to the Government, the applicant could have complained

on appeal that he had not received a copy of the abridged version but

he would not have gained anything by doing so, since the abridged

judgment would in any event have been elaborated once an appeal had

been filed.

The applicant reiterates that his lawyer was told by the registry

of the Regional Court that no written version of the judgment was

available when he made an inquiry by telephone before expiry of the

fourteen day period for filing an appeal. Moreover, his lawyer was not

aware of any policy of the Regional Court to the effect that written

copies were only provided upon a written request. In any event, even

if an abridged judgment had been available this would still not have

enabled the applicant to reach a well-founded decision as to whether

or not to lodge an appeal since this decision required him to be aware

of the reasons of the Regional Court for dismissing his defence pleas

or the Court's special reasons leading to the determination of the

sentence.

Furthermore, according to the applicant it is standard practice

for the Prosecutor's Department to file an appeal if the accused does

so. The applicant submits that even if the accused subsequently decides

to withdraw his appeal, the Prosecutor's Department may maintain its

appeal and it is by no means impossible for a heavier sentence to be

imposed on appeal. The applicant concludes that it is contrary to

Article 6 (Art. 6) of the Convention for the provision of a complete

version of a judgment to be made conditional on the lodging of an

appeal, given the procedural risk this entails.

Having regard to the parties' submissions and the case-law of the

Convention organs, the Commission considers that this part of the

application raises complex questions of fact and law which require an

examination of the merits. The Commission concludes, therefore, that

this part of the application is not manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

grounds for declaring this part inadmissible have been established.

2. The applicant further complains under Article 6 para. 1

(Art. 6-1) of the Convention that Section 10 of the Act on the Disposal

of the Dead, by imposing the obligation on the coroner to notify the

public prosecutor in case a doctor informs him of a death from

unnatural causes, infringed his right not to incriminate himself.

The Commission notes that the applicant could have raised this

substantive issue by lodging an appeal with the Court of Appeal. The

Commission considers that in failing to do so, the applicant has not

complied with the obligation to exhaust domestic remedies.

It follows that this part of the application is inadmissible

pursuant to Articles 26 and 27 para. 3 (Art. 26, 27-3) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint that he had not been provided with a copy

of the complete judgment of the Regional Court at the time he had

to decide whether to lodge an appeal;

DECLARES INADMISSIBLE the remainder of the application.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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ZOON v. THE NETHERLANDS

ZOON v. THE NETHERLANDS

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