Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32368/96

by Harald Eduard VAN BOMMEL

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 1997, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

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 19 September 1995

by Harald Eduard VAN BOMMEL against the Netherlands and registered on

22 July 1996 under file No. 32368/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1953, and resides in

Eindhoven, the Netherlands.

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

summarised as follows.

a. Particular circumstances of the present case

On 24 January 1992, the applicant was present in the home of his

friend Ms A.F., when the latter's former husband W.R., in the company

of his friend Ms S.E., arrived there to pick up the two children born

out of their dissolved marriage in the context of an access

arrangement. A fight broke out between the applicant and W.R. as one

of the children was allegedly too sick to leave with W.R. The latter

went to the police who intervened.

On 7 February 1992, W.R. filed an assault complaint against the

applicant with the police. On the same day the police took statements

from W.R. and S.E.

On 18 February 1992, the police took a statement by A.F. On the

same day the police also took a statement from the applicant after he

had been informed by the police of what he was suspected and that, as

a suspect, he was not obliged to answer any questions. According to the

formal minutes on the applicant's questioning by the police on

18 February 1992 (proces-verbaal van verhoor), the applicant stated on

that occasion that he was residing at J.E. street 27 in Eindhoven.

The applicant was deleted from the municipal population register

of Eindhoven on 10 July 1992. He resided abroad between 23 July 1992

and 8 February 1993.

On 8 February 1993, a summons addressed to the applicant to

appear before the Magistrate (politierechter) of the Regional Court

(Arrondissementsrechtbank) of Roermond on charges of assault committed

on 24 January 1992, was presented by the postal services at the address

E. street 38 in Eindhoven. However, the applicant had left this address

already on 10 July 1992. The postal services subsequently returned the

summons to the prosecution department under the mention that, according

to information obtained from the occupant, the addressee was not living

or formally residing at the address indicated in the summons.

As the summons to appear before the Magistrate could not be

served on the applicant otherwise, it was served on the Registrar of

the Regional Court (Arrondissementsrechtbank) of Roermond on

18 February 1993 under the mention that there was no known address of

the applicant in the Netherlands. On 14 April 1993, following

proceedings in absentia, the Magistrate convicted the applicant of

assault and imposed a fine of 750 Dutch guilders and a suspended prison

sentence of two weeks.

On 17 May 1993, the applicant registered himself with the

municipal authorities of Eindhoven as residing in this municipality.

In September 1993, the applicant found out that he had been convicted

on 14 April 1993. On 24 September 1993 Mr M.N., a lawyer practising in

Venlo, filed an appeal with the Court of Appeal (Gerechtshof) of

's-Hertogensbosch on behalf of the applicant. The lawyer stated in the

written act of appeal (akte hoger beroep) he deposited that the

applicant was residing at V. street 16B in Eindhoven.

Following an unsuccessful attempt on 11 March 1994, the summons

to appear before the Court of Appeal was served on the applicant in

person on 12 March 1994 by the postal services.

In its judgment of 11 May 1994, following adversarial proceedings

in the course of which the Court of Appeal took evidence from the

applicant, W.R. and S.E., the Court of Appeal quashed the judgment of

14 April 1993, and after a full review of the facts and evidence

convicted the applicant of assault and imposed a fine of 750 Dutch

guilders and a suspended prison sentence of two weeks.

On 24 May 1994, the applicant filed an appeal in cassation with

the Supreme Court (Hoge Raad). In the written act of cassation (akte

cassatie), which he deposited on that date with the Registry of the

Court of Appeal, the applicant indicated that he resided at H. street

36 in Venray.

On 25 August 1994, the applicant registered with the municipal

authorities of Venray as residing in that municipality.

The notification (aanzegging) of the date of the hearing in

cassation before the Supreme Court was sent by the Procurator General

at the Supreme Court (Procureur-Generaal bij de Hoge Raad) to the

applicant at the address H. street 36 in Venray. When, on

10 November 1994, the postal services presented this notification at

this address, the applicant was not there. The notification was,

however, left in the hands of a person present, Mr H., who stated that

he was willing to accept the notification and to transmit it without

delay to the applicant. Apart from containing the date and hour of the

hearing before the Supreme Court in the applicant's case, the

notification further contained procedural information, i.e. that oral

pleadings before the Supreme Court could only be presented by a lawyer

and not by the applicant himself and that the applicant could file a

request for legal aid for this purpose.

This notification allegedly did not reach the applicant.

Consequently, the applicant was not present at the hearing of his case

before the Supreme Court on 31 January 1995.

By judgment of 11 April 1995, the Supreme Court rejected the

applicant's appeal in cassation. In a notification, sent to B. street

27 in Venray, the applicant was informed of the judgment of

11 April 1995.

On 29 May 1995, the prosecution department at the Court of Appeal

of 's-Hertogenbosch addressed a written notification to the applicant,

at the address K. 58 in Eindhoven, in respect of the conditional prison

sentence imposed by the Court of Appeal on 11 May 1994.

On 31 May 1995, the applicant informed the Procurator General at

the Supreme Court that he had received the notification that his appeal

in cassation had been rejected. Stating that he had not received a

summons to appear before the Supreme Court, the applicant filed a

written request for a revision (herziening) to the Supreme Court. He

stated that B. street 27 in Venray was his address.

By letter of 9 June 1995, the Supreme Court Registrar informed

the applicant that the notification of the hearing had been served in

accordance with the requirements of Article 588 para. 1 (b) of the Code

of Criminal Procedure (Wetboek van Strafvordering) and that a request

for revision would, therefore, stand little chance of success.

In his reply of 11 June 1995, the applicant disputed the

lawfulness of the serving of the notification of the hearing. He stated

that at the time of the notification he was formally registered as

residing at B. street 27 in Venray. He further stated that he

maintained his revision request and that correspondence could be

addressed to V. street 16b in Eindhoven.

By letter of 21 August 1995, the municipal authorities of

Maastricht confirmed that the applicant had sought to register himself

on 17 February 1993 in the municipal population register of Maastricht.

In its decision of 28 November 1995, the Supreme Court declared

the applicant's request for revision inadmissible as its judgment of

11 April 1995 did not constitute a final conviction within the meaning

of Article 457 para. 1 of the Code of Criminal Procedure.

b. Relevant domestic law

The rules governing the procedure of the serving of judicial

notifications are set out in Articles 585 - 590 of the Code of Criminal

Procedure (CCP).

According to Article 585 para. 3 CCP summonses and notifications

(dagvaardingen en aanzeggingen) must be served (betekening). Pursuant

to Article 587 para. 1 CCP, a serving takes place by the delivery

(uitreiking) of a judicial communication (gerechtelijke mededeling) by

the postal services.

Article 588 CCP, insofar as relevant, reads as follows:

"1. The serving takes place:

a. ...

b. upon all others: in person or, in case the serving in

person is not prescribed and the communication is

presented in the Netherlands:

1* to the address where the addressee is registered

in the basic personal data administration, or

2* if the addressee is not registered in the basic

personal data administration, to the permanent or

temporary domicile of the addressee, or

3* if the address is not registered in the basic

personal data administration and a permanent or

temporary domicile is not known, to the Registrar of

the Regional Court before which or in whose judicial

district the case will be heard or has been heard

previously.

2. ...

3. Where in a situation referred to in paragraph 1, section b.

under 1* or 2*,

a. the addressee is not found, the serving takes place by

delivery to the person

present at that address who declares to be willing to

transmit the document without delay to the addressee;

b. nobody is found, the serving takes place by delivery

to the addressee or a person authorised by the

addressee at a place the address of which is indicated

in a written message which must be left behind;

c. the delivery has not taken place, the communication is

returned to the authority which issued it. When it

appears that the addressee on the day of presentation

and at least five days thereafter has been registered

in the basic personal data administration as residing

at the address indicated on the communication, the

communication shall subsequently be delivered to the

Registrar of the Regional Court before which or in

whose judicial district the case will be heard or has

been heard previously. The Registrar will then send

the communication without delay by regular mail to

that address and annotates this on the act of delivery

referred to in Article 589 .

4. ..."

Article 590 CCP, insofar as relevant, provides:

"1. The serving is null and void, where the delivery has not

taken place in accordance with the conditions set out in

Articles 588 paras. 1 and 3, and 589.

2. ...

3. Where the addressee is registered as resident in the basic

personal data administration, whereas at the trial it

appears that he resides in fact at another address, the

judge may order the appearance of the suspect who has not

appeared."

COMPLAINTS

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

and Article 2 of Protocol No. 7 that he did not receive a fair trial

in the criminal proceedings against him and that he was deprived of

access to an appeal court. He submits that the notification of

18 February 1993 is null and void and that he wanted to submit this

objection to the Supreme Court, which has been made impossible by the

Supreme Court's failure to send him a notification in accordance with

Article 588 CCP as this failure resulted in his absence at the hearing

before the Supreme Court.

THE LAW

The applicant complains under Article 6 (Art. 6) of the

Convention and Article 2 of Protocol No. 7 (P7-2) that he did not

receive a fair trial in the criminal proceedings against him and that

he was deprived of access to an appeal court.

The Commission notes in the first place that the Netherlands is

not a Party to Protocol No. 7. Consequently, insofar as the applicant

relies on Article 2 of Protocol 7 (P7-2), it follows that this part of

the application must be rejected for being incompatible ratione

personae with the Convention.

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

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

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

tribunal established by law. ...

2. ...

3. Everyone charged with a criminal offence has the following

minimum rights:

a. to be informed promptly, in a language which he

understands and in detail, of the nature and cause of the

accusation against him;

b. to have adequate time ... for the preparation of his

defence;

c. to defend himself in person or through legal

assistance of his own choosing ... ;

...."

The Commission notes that the applicant's complaint refers to a

summons dated 18 February 1993. The Commission understands the

complaint as referring to the summons dated 8 February 1993 ordering

the applicant to appear before the Magistrate of Roermond on assault

charges. The Commission further notes that, as this summons was sent

to an address where the applicant no longer resided and apparently

never reached the applicant, the proceedings before the Magistrate

resulted in the applicant's conviction after proceedings held in

absentia.

However, the Commission further notes that, following the

applicant's appeal against his conviction by the Magistrate, the

applicant was duly and successfully summoned to appear before the Court

of Appeal. Furthermore, adversarial proceedings were held before the

Court of Appeal in the course of which the Court of Appeal took

evidence from the applicant and two other persons involved. Finally,

in its judgment of 11 May 1994, the Court of Appeal quashed the

Magistrate's conviction in absentia.

In these circumstances, the Commission considers that the

applicant can no longer claim to be a victim within the meaning of

Article 25 (Art. 25) of the Convention insofar as his complaint relates

to the proceedings in absentia before the Magistrate.

The Commission further finds no indication that the proceedings

before the Court of Appeal fell short of the requirements of Article 6

(Art. 6) of the Convention as to the fairness of criminal proceedings.

The question therefore remains whether the applicant was deprived

of a fair hearing in the subsequent cassation proceedings before the

Supreme Court.

The Commission considers at the outset that the question whether

or not the notification of the hearing before the Supreme Court has

been served in accordance with Article 588 of the Code of Criminal

Procedure is not a matter which it can review under the terms of

Article 19 (Art. 19) of the Convention. In the present case, the

Commission can only examine whether or not the alleged failure of the

judicial authorities to duly notify the applicant of the date and time

of his hearing before the Supreme Court deprived him of a fair hearing

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention

(cf. No. 19890/92, Dec. 3.5.93, D.R. 74, p. 234).

The Commission recalls that the object and purpose of Article 6

(Art. 6) of the Convention taken as a whole show that a person "charged

with a criminal offence" is entitled to take part in the hearing of his

case and that the Contracting States must exercise diligence in order

to ensure that the rights guaranteed by this provision are enjoyed in

an effective manner (cf. Eur. Court HR, Colozza v. Italy judgment of

12 February 1985, Series A no. 89, pp. 14-15, paras. 27 and 28). The

Commission further recalls that an accused must be informed with

sufficient notice about the date and place of the trial (cf.

No. 8231/78, Dec. 6.3.82, D.R. 28, p. 5).

In the present case, the Commission observes in the first place

that the notification of the hearing in cassation was sent to the

address indicated by the applicant in the formal act of cassation he

deposited with the Registry of the Court of Appeal. The Commission

further notes that, when the postal services presented the notification

to this address, the applicant was not there. However, another person

present, Mr H., stated that he was willing to accept the notification

and to transmit it without delay to the applicant, which is a situation

foreseen in Article 588 para. 3 of the Code of Criminal Procedure.

Secondly, the Commission has found no indication that the

applicant had informed the Registry of the Supreme Court at any point

in time that he had moved to a different address although he was aware

that cassation proceedings were pending and could thus reasonably be

expecting a notification of the date and hour of the hearing of his

case before the Supreme Court.

Given the fact that the notification concerning the hearing in

cassation was delivered in a manner foreseen by the Code of Criminal

Procedure and the applicant's apparent lack of diligence in his case,

the Commission is of the opinion that the authorities cannot be held

responsible for the applicant's absence at the hearing of his case

before the Supreme Court.

It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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VAN BOMMEL v. THE NETHERLANDS

VAN BOMMEL v. THE NETHERLANDS

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