Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26788/95

by Peter R.H.H.B.G. VERVERGAERT

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

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 10 November 1994

by Peter R.H.H.B.G. VERVERGAERT against the Netherlands and registered

on 21 March 1995 under file No. 26788/95;

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

19 December 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1965, and residing in

Spijkenisse, the Netherlands. Before the Commission he is represented

by Mr. R.J. Baumgardt, a lawyer practising in Spijkenisse.

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

summarised as follows.

A. The particular circumstances of the case

On 3 February 1990 the applicant was arrested and taken into

police custody on suspicion of having committed a number of burglaries.

He was released on 5 February 1990.

On 13 March 1991 the applicant was summoned to appear before the

Regional Court (Arrondissementsrechtbank) of Rotterdam on several

charges of burglary. The Regional Court heard the case on 24 May 1991.

The applicant did not appear. His lawyer, however, was present. The

applicant had been summoned at the address where he was officially

registered, but since he had recently left this house he had not

received the summons in time.

On 7 June 1991 the Regional Court convicted the applicant, in

absentia, as charged and sentenced him to a partially suspended term

of fifteen months' imprisonment less the time spent in pre-trial

detention.

The applicant filed an appeal against this judgment with the

Court of Appeal (Gerechtshof) of The Hague.

The Court of Appeal had planned a hearing on 29 July 1992 but as

the applicant was unable to attend due to illness, it was adjourned.

On 21 December 1992 the Court of Appeal examined the case.

According to the procès-verbal of this hearing, the applicant's lawyer

explained to the Court that his client was unable to attend the hearing

since he was on holiday to celebrate his engagement. The lawyer,

however, requested the Court to provide him with the opportunity to

conduct the defence. The Court of Appeal rejected this request, since

it considered there were no compelling reasons (klemmende redenen) for

the applicant's absence. The Court of Appeal subsequently declared the

applicant in default of appearance and started its examination.

On 4 January 1993 the Court of Appeal quashed the Regional

Court's judgment, convicted the applicant as charged and sentenced him

to twelve months' imprisonment less the time spent in pre-trial

detention.

The applicant filed an appeal in cassation with the Supreme Court

(Hoge Raad). He complained, inter alia, that the Court of Appeal had

not allowed his lawyer to conduct his defence in his absence. He

invoked Article 6 para. 3 (c) of the Convention and referred to the

Poitrimol v. France judgment of the European Court of Human Rights of

23 November 1993 (Series A no. 277-A) and to the Commission's Reports

concerning the cases of Lala and Pelladoah (Comm. Reports 4.5.93,

para. 52 and para. 60 respectively, Eur. Court HR, Series A no. 297-A

and B, p. 18 and 39 respectively).

The Advocate General (Advocaat-Generaal) advised the Supreme

Court to reject the applicant's appeal in cassation because there had

been no compelling reasons for the applicant's absence.

In its judgment of 17 May 1994 the Supreme Court rejected the

applicant's appeal in cassation.

B. Relevant domestic law and practice

The Netherlands Code of Criminal Procedure (Wetboek van

Strafvordering) does not ensure the rights of a lawyer to conduct the

defence of an accused before a court, where the latter has been

declared in default of appearance.

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 EU member states in which civil

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

1982 nr. 269), and

- in cases where there are compelling reasons (klemmende redenen)

preventing the appearance of an accused at the hearing of his case

(Hoge Raad, judgment of 26 February 1988, N.J. 1988 nr. 794) and where

a lawyer has made an explicit request to that effect to the court (Hoge

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

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

COMPLAINT

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

Convention that at the hearing of 21 December 1992 before the Court of

Appeal of The Hague, his lawyer was not allowed to conduct his defence

in his absence and that he was therefore deprived of a fair trial in

the determination of the criminal charges against him.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 November 1994 and registered

on 21 March 1995.

On 16 October 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

19 December 1996. The applicant has not availed himself of the

opportunity to submit observations in reply.

THE LAW

The applicant complains that in the determination of the criminal

charges against him he did not receive a fair trial as the Court of

Appeal did not allow his lawyer to conduct the defence in his

absence. The applicant invokes Article 6 paras. 1 and 3 (c)

(Art. 6-1, 6-3-c) of the Convention, which, insofar as relevant,

provide:

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

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

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 ..."

The Government submit that the issues raised in the present case

are similar to those in the cases of Lala and Pelladoah in which the

Court found a violation of Article 6 paras. 1 and 3 (c)

(Art. 6-1, 6-3-c) of the Convention (judgments of 22 September 1994,

loc. cit.). However, they point out that the Court's judgments had not

yet been delivered at the time when the Supreme Court examined the

present case. Following the Court's judgments, counsel for an accused

who has not appeared in court is now always given the opportunity to

speak in his client's defence. Furthermore, the Supreme Court has

adapted its case-law accordingly.

In view of the above, the Government defer to the opinion of the

Commission.

The Commission agrees with the Government that this application

raises the same issues as the cases of Lala and Pelladoah.

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

Convention organs, the Commission considers that the present

application raises questions of fact and law which require an

examination of the merits. This complaint cannot, therefore, be

declared inadmissible as being manifestly ill-founded within the

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

grounds for inadmissibility have been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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VERVERGAERT v. THE NETHERLANDS

VERVERGAERT v. THE NETHERLANDS

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