Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24588/94

by Petrus Hubertus VAN ULDEN

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 21 May 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 3 June 1992 by

Petrus Hubertus VAN ULDEN against the Netherlands and registered on

12 July 1994 under file No. 24588/94;

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

21 March 1996 and the observations in reply submitted by the

applicant on 10 June 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1956, and residing in

Kerkrade, the Netherlands. Before the Commission he was initially

represented by Ms M. Hegeman, a lawyer practising in Maastricht, who

was succeeded by Ms T. Spronken, also a lawyer practising in

Maastricht.

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

summarised as follows.

A. The particular circumstances of the case

On 31 October 1991, the applicant was arrested on the suspicion

of having committed eight car thefts. When the public prosecutor

(officier van justitie) on 1 November 1991 ordered him to be taken into

police custody (inverzekeringstelling) the applicant requested to be

legally assisted by his lawyer Ms Hegeman, who had already been

assigned to represent him in two other criminal prosecutions instigated

against him.

Due to the fact that Ms Hegeman was unavailable at that moment,

the applicant was visited at the police station by Mr W., the lawyer

on call (piket-advocaat), who provided him with legal assistance in

respect of his detention in police custody (inverzekeringstelling).

Mr W. subsequently represented the applicant when the Investigating

Judge (Rechter-Commissaris) dealt with the public prosecutor's request

to have the applicant detained on remand (voorlopige hechtenis).

On 5 November 1991 the applicant telephoned Ms Hegeman and asked

her to represent him. Thereupon, Ms Hegeman informed Mr W. by telephone

of the applicant's request. However, Mr W. refused to relinquish the

case and was officially designated as legal aid defence counsel to the

applicant by decision of 6 November 1991 of the Acting President of the

Maastricht Regional Court (Arrondissementsrechtbank).

On 7 November 1991 the applicant was represented by Mr W. in the

proceedings before the Regional Court which ordered the applicant's

continued detention on remand.

On 18 and 28 November and 4 December 1991 the applicant and/or

Ms Hegeman requested the President of the Regional Court to amend the

assignation whereby Mr W. was appointed as legal aid defence counsel

to the applicant. In his letter of 4 December 1991, the applicant

stated that the reason for his request was that he had no confidence

in Mr W. given the latter's inappropriate remarks to him about Ms

Hegeman. Hereupon, the President informed Ms Hegeman on 4 December 1991

that he could see no immediate cause to amend the assignation as

requested.

The applicant also complained in writing to the Dean of the

Regional Bar Association (Deken van de Orde van Advocaten in het

Arrondissement Maastricht) on 3 December 1991 that Mr W., despite the

fact that the applicant had no confidence in him, did not wish to

relinquish his case. The applicant requested the Dean to be allowed to

be represented by Ms Hegeman, whom he trusted. That same day Ms Hegeman

requested the Dean to mediate in the conflict.

Mr W. was not present on 5 December 1991 when the Regional Court

examined the prosecution's demand that the applicant's detention on

remand should be prolonged. The following day the applicant requested

the President of the Regional Court to revise his earlier decision not

to amend the assignation of Mr W. Also on 6 December 1991 Ms Hegeman

requested the President to assign her instead of Mr W. as legal aid

defence counsel to the applicant.

On 10 December 1991, the President informed the Dean of the

Regional Bar Association that at that time he saw no reason to amend

the assignation, upon which Ms Hegeman filed a complaint with the Dean

on 11 December 1991 against Mr W. for having acted contrary to the

Rules of Conduct for Lawyers (Gedragsregels voor Advocaten).

Ms Hegeman represented the applicant on 31 December 1991 before

the Regional Court where a further request for the prolongation of the

applicant's detention on remand was examined. The Regional Court

decided to release the applicant. Since Mr W., who had not been present

at the hearing, had not given Ms Hegeman permission to represent the

applicant, he filed a complaint against Ms Hegeman with the Dean.

On 7 January 1992, the Dean informed the parties that in his

opinion Mr W. should relinquish the applicant's case. As Mr W. refused

to do so, the Dean referred the complaints which had been lodged with

him to the Disciplinary Board (Raad van Discipline) of Den Bosch.

On 4 February 1992, a hearing took place before the Regional

Court in several criminal proceedings against the applicant, including

the one where Mr W. had been assigned legal aid defence counsel and

several others in which Ms Hegeman had been so assigned.

Mr W. requested the Court to record his presence at the hearing.

Following mediation by the Dean and consultation with the President of

the Regional Court, the judge presiding over the hearing allowed

Ms Hegeman to examine the documents pertaining to the proceedings in

which Mr W. had been assigned. At the hearing this judge further stated

that Ms Hegeman would be able to conduct the defence in these

proceedings. The hearing was then adjourned as the applicant was unable

to attend.

A hearing before the Disciplinary Board took place on 1 June 1992

during which Mr W. was three times requested by the President of the

Board to relinquish the case since the relationship between Mr W. and

the applicant was no longer based on trust. However, Mr W. refused,

saying that he had been appointed by the President of the Regional

Court and that the latter had not found it necessary to amend this

assignment.

On 6 July 1992, the Disciplinary Board decided that it could not

deal with the applicant's complaint against Mr W., since his letter

merely contained a request for the assignment of Ms Hegeman and not a

complaint directed against Mr W.

The Disciplinary Board declared Ms Hegeman's complaint against

Mr W. inadmissible. It held that the dispute between the applicant and

Mr W. did not directly concern her. Pursuant to Article 56 of the Act

on the Legal Profession (Advocatenwet) no appeal to the Disciplinary

Court (Hof van Discipline) lies against a decision of inadmissibility.

A complaint filed by Mr W. against Ms Hegeman concerning her

visit to the applicant whilst he was detained on remand was declared

ill-founded by the Disciplinary Board since Ms Hegeman represented the

applicant in different proceedings and she was therefore entitled to

visit him. As regards the complaint that Ms Hegeman had represented the

applicant on 31 December 1991 without the permission of Mr W., the

Disciplinary Board held that Mr W. could not object to the interests

of his client being looked after in his absence. The Board declared

this complaint inadmissible.

In the criminal proceedings before the Regional Court against the

applicant a hearing took place on 20 November 1992. Mr W. did not

appear and Ms Hegeman conducted the applicant's defence also in the

case in which Mr W. had been assigned. Ms Hegeman subsequently sent an

invoice to the applicant which has so far not been paid.

On 4 December 1992 the Regional Court convicted the applicant of

all offences he had been charged with and sentenced him to seventeen

months' imprisonment with deduction of the time spent in pre-trial

detention. The applicant did not appeal against this judgment.

B. Relevant domestic law

If an accused who is being detained in police custody

(inverzekeringstelling) has not chosen a defence counsel, the

prosecution department informs the lawyer "on call" without delay.

This lawyer will represent the accused for the duration of the

police custody (Article 40 of the Code of Criminal Procedure - Wetboek

van Strafvordering, hereinafter "CCP").

If, following the expiration of the police custody, detention on

remand (voorlopige hechtenis) is ordered the President of the Regional

Court assigns legal aid defence counsel ex officio (Article 41 para.

1 (a) CCP).

The assignment of a legal aid defence counsel covers the entire

proceedings for each particular level of jurisdiction (Article 43 CCP),

including the period for filing an appeal to an appeal court. Pursuant

to Article 45 para. 2 CCP, an accused may request to be assigned

another legal aid defence counsel.

COMPLAINT

The applicant complains under Article 6 para. 3 (c) of the

Convention that in the criminal proceedings against him he did not

receive free legal assistance of his own choosing.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 June 1992 and registered on

12 July 1994.

On 17 January 1996 the Commission decided to communicate the

application to the respondent Government and to invite them, pursuant

to Rule 48 para. 2 (b) of the Rules of Procedure, to submit written

observations on the admissibility and merits of the application.

The Government's written observations were submitted on 21 March

1996. The applicant replied on 10 June 1996.

THE LAW

The applicant complains under Article 6 para. 3 (c) (Art. 6-3-c)

of the Convention that in the criminal proceedings against him he did

not receive free legal assistance of his own choosing.

Article 6 para. 3 (c) (Art. 6-3-c) of the Convention reads as

follows:

"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 or, if he has not sufficient means

to pay for legal assistance, to be given it free when the

interests of justice so require;

..."

The Government submit in the first place that the applicant

failed to comply with the requirement of exhaustion of domestic

remedies under Article 26 (Art. 26) of the Convention in that he

himself failed to file a disciplinary complaint against Mr W.

The Government further submit on this point that it does not

appear that the applicant and Ms Hegeman raised the question of the

failure to change the assignment - as they saw it - in the criminal

proceedings against the applicant, where Ms Hegeman was allowed to

conduct the applicant's defence.

As to the substance, the Government submit that, in conformity

with the relevant regulations, the authorities tried to contact Ms

Hegeman at the relevant time as the applicant had stated he wished to

be represented by her. As she was unavailable at that time, the

applicant was represented by the duty lawyer, Mr W. In such cases,

pursuant to Articles 41 and 42 of the CCP, the assigned lawyer remains

assigned for the rest of the proceedings. The Government consider that

limitations on the change of legal aid lawyers are necessary. After a

legal aid lawyer is appointed, he is expected to study the case

thoroughly, which means that only if he continues with the case those

efforts will be rewarded.

The Government further submit that, according to the case-law of

the Convention organs, a free choice of a legal aid lawyer is not an

absolute right. Under Article 45 of the CCP, both the assigned lawyer

and the suspect may request that another lawyer be assigned. In

practice, this does not happen unless there are good grounds for doing

so. The Government consider that there has been no violation of Article

6 para. 3 (c) (Art. 6-3-c) of the Convention in the present case, as

the applicant has never indicated in what way Mr W. did not function

properly in the exercise of the applicant's defence and, in view of the

conflict between Mr W. and Ms Hegeman, the President of the Regional

Court dealing with the criminal proceedings against the applicant

allowed Ms Hegeman, in addition to Mr W., to inspect the documents and

defend the applicant.

The applicant submits that he has complied with the exhaustion

requirement. In his view, to lodge a complaint himself against Mr W.

does not constitute an effective and adequate remedy within the meaning

of Article 26 (Art. 26) of the Convention, as at the time the

Disciplinary Board rejected his complaint on 6 July 1992 the first

hearing in the criminal proceedings had already been held, i.e. on

4 February 1992.

The applicant further submits that this remedy cannot be regarded

as effective, as, even assuming that his complaint had been held to be

well-founded by the Disciplinary Board, the competence to assign a

legal aid lawyer to suspects in pre-trial detention belongs exclusively

to the President of the Regional Court.

As to the substance, the applicant submits that he informed the

Regional Court of Maastricht repeatedly that he had absolutely no

confidence in Mr W. In his opinion the court itself could have

concluded that Mr W. was not functioning properly given his absence at

the hearings on the extension of the applicant's pre-trial detention

and the fact that, at the hearing held on 4 February 1992, Mr W.

appeared, requested the Regional Court to record his presence in order

to be able to obtain his legal aid fee and left the hearing

immediately.

Relying, inter alia, on the European Court's judgment of 25 April

1983 in the case of Pakelli v. Germany (Series A no. 64), the applicant

argues that Article 6 para. 3 (c) (Art. 6-3-c) of the Convention

includes the right for an accused person to have recourse to free legal

assistance of his own choosing.

Given the attitude of Mr W. and the obvious conclusions which the

court could draw from the way in which Mr W. performed his duties as

legal aid lawyer in the present case, whereas Ms Hegeman was prepared

to defend him and in fact did so, the applicant considers it

incomprehensible why he should have to bear the costs of legal

assistance. He considers that the Dutch authorities fell short of their

obligations under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention

by failing to comply with his request to assign Ms Hegeman as his legal

aid lawyer.

The Commission does not find it necessary to determine whether

or not the applicant has duly exhausted domestic remedies within the

meaning of Article 26 (Art. 26) of the Convention, as in any event the

complaint is manifestly ill-founded on the following grounds.

The Commission recalls that a person charged with a criminal

offence, who does not wish to defend himself in person, must be able

to have recourse to legal assistance of his own choosing and that, if

he does not have sufficient means to pay for such assistance, he is

entitled under the Convention to be given it free when the interests

of justice so require (Eur. Court HR, Pakelli v. Germany judgment of

25 April 1983, Series A no. 64, p. 15, para. 31).

However, notwithstanding the importance of a relationship of

confidence between lawyer and client, the right under Article 6 para.

3 (c) (Art. 6-3-c) of the Convention for an accused to be defended by

counsel of his own choosing cannot be considered to be absolute. It is

necessarily subject to certain limitations where free legal aid is

concerned and also where it is for the courts to decide whether the

interests of justice require that the accused be defended by counsel

appointed by them. When appointing defence counsel the national courts

must certainly have regard to the defendant's wishes. However, the

courts can override those wishes when there are relevant and sufficient

grounds for holding that this is necessary in the interests of justice

(cf. Eur. Court HR, Croissant v. Germany judgment of 25 September 1992,

Series A no. 237-B, p. 32-33, para. 29).

As regards the present case, the Commission notes that, on

1 November 1991, the applicant did request Ms Hegeman's appointment as

his legal aid lawyer. The Commission further notes that the authorities

acceded to this request and attempts were made to contact her. However,

as she was not available at that time and the applicant required

immediate legal assistance, the legal aid lawyer "on call", i.e. Mr W.,

was appointed, and he did in fact provide the applicant with legal

assistance in connection with the latter's pre-trial detention.

The Commission cannot find this course of action contrary to

Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.

The Commission further considers that it does not appear from the

facts of the case that, at any point in the domestic proceedings, the

applicant raised complaints alleging that Mr W. fell short of his

professional obligations as the applicant's defence lawyer. The

applicant did in fact request Mr W. to be replaced by Mrs Hegeman but,

insofar as can be established, this request was not based on an alleged

lack of quality of Mr W.'s professional activities in the applicant's

case, but on Ms Hegeman's activities as legal aid lawyer in two other

criminal procedures against the applicant.

It appears from the applicant's letters to the President of the

Regional Court and the Dean of the Regional Bar Association that the

applicant's request for Mr W.'s replacement was founded on his lack of

confidence in Mr W. and that the applicant's only reason for holding

this opinion was that certain inappropriate remarks about Ms Hegeman

had allegedly been made by Mr W. The applicant's opinion was not based

on the quality of Mr W.'s activities as the applicant's defence lawyer.

The Commission cannot find it unreasonable, in view of the

general desirability of limiting the total costs of legal aid, that

national authorities take a restrictive approach to requests to replace

legal aid lawyers once they have been assigned to a case and have

undertaken certain activities in such a case.

In the particular circumstances of the present case, the

Commission cannot find that the refusal to replace Mr W. by Ms Hegeman

as the applicant's legal aid lawyer infringed the applicant's rights

under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention as the

request for the replacement of Mr W. was not based on reasons which

could reasonably be regarded as sufficient for reaching the conclusion

that the effectiveness of the applicant's defence was no longer

secured.

Finally, the Commission notes that the trial court did in fact

grant Ms Hegeman access to the applicant's case-file and allowed her

to conduct the applicant's defence.

In these circumstances, the Commission cannot find that the

refusal to replace Mr W. by Ms Hegeman as the applicant's legal aid

lawyer affected the fairness, within the meaning of Article 6 (Art. 6)

of the Convention taken as a whole, of the proceedings at issue.

It follows that 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, by a majority,

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 ULDEN v. THE NETHERLANDS

VAN ULDEN v. THE NETHERLANDS

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