Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22411/93

by A.Ö.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 28 February 1996, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 7 May 1993 by A.Ö.

against the Netherlands and registered on 4 August 1993 under file No.

22411/93;

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

24 February 1995 and the observations in reply submitted by the

applicant on 24 April 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1956, and is

currently detained in Rotterdam. Before the Commission he is

represented by Mr. J.I.M.G. Jahae, a lawyer practising in Amsterdam.

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

summarised as follows.

A. The particular circumstances of the case

On 26 January 1990, the applicant was arrested and detained on

remand on suspicion of drug offences. On 14 November 1990 the Regional

Court (Arrondissementsrechtbank) of Rotterdam convicted him of drug

offences and sentenced him to six years' imprisonment.

The applicant appealed to the Court of Appeal (Gerechtshof) of

The Hague. On 25 November 1991, the Court of Appeal quashed the

judgment of the Regional Court, found the applicant guilty of drug

offences and sentenced him to seven years and six months' imprisonment

with deduction of the time spent in detention on remand.

The applicant filed an appeal in cassation with the Supreme Court

(Hoge Raad) within the legal time limit of fourteen days set for this

purpose.

The applicant had been in detention throughout the entire

proceedings. In December 1992 the applicant's lawyer requested the

Hague Court of Appeal, which remained competent to decide requests for

release from pre-trial detention pending the proceedings before the

Supreme Court, to suspend the applicant's detention on remand. However,

the lawyer was informed by the Registry of the Court of Appeal that

this court was no longer competent to examine the request, since the

applicant's appeal in cassation had been rejected.

The Supreme Court had in fact rejected the applicant's appeal in

cassation on 3 November 1992. The Supreme Court noted that the

applicant had not submitted any grounds of cassation and, after an ex

officio examination of the appeal, found no grounds on the basis of

which the judgment of 25 November 1991 should be quashed.

It appears that a notification pursuant to section 437 para. 1

of the Code of Criminal Procedure (Wetboek van Strafvordering), stating

that the hearing of the appeal in cassation before the Supreme Court

was set for 14 September 1992, was issued to a remand centre (huis van

bewaring) in Rotterdam for service on the applicant. It is not clear,

however, to which of the two remand centres in Rotterdam the

notification was sent. In any event, the notification was returned to

the Supreme Court as the person to whom it was addressed was unknown

in the remand centre concerned. The notification was subsequently sent,

according to the customary procedure, through the Hague Regional Court

to the applicant's private address, after this address had been

verified with the population registry of the municipality of Rotterdam.

Arguing that the failure to notify the applicant in person of the

hearing before the Supreme Court was contrary to the Dutch rules on

notification of hearings, the applicant's lawyer applied on

10 February 1993 for a revision (herziening). The Supreme Court

rejected this request on 28 September 1993, holding that if it had been

aware of the fact that at the time of the notification the applicant

was in detention this would not have resulted in an acquittal, the

discontinuation of the proceedings, the inadmissibility of the

prosecution or the application of a less severe penal provision, but

merely in an order to set a new date for the hearing before the Supreme

Court.

B. Relevant domestic law

Pursuant to section 437 of the Code of Criminal Procedure (CCP)

the defendant must be notified of the impending hearing of his case

before the Supreme Court at least eight days before the date of the

hearing. If the defendant has not been properly notified, the Supreme

Court will order that a new date be set for the hearing.

Section 585 para. 3 CCP provides that this notification should

be served (betekend). If the judicial document to be handed over

relates to the criminal case for which the defendant has been deprived

of his liberty by law, the document should be served on the defendant

in person, as provided for in section 588 para. 1 (a) CCP.

A defendant who has lodged an appeal in cassation may submit

grounds for his appeal in writing until the day the Supreme Court is

scheduled to hear the case, and/or orally during the hearing before the

Supreme Court (Sections 433 para. 2 and 439 CCP), provided that these

grounds are also set out in a written document which must be submitted

to the Supreme Court before the closure of its hearing.

COMPLAINTS

The applicant complains of a violation of Article 6 paras. 1 and

3 (b) and (c) of the Convention in that he was not notified of the

forthcoming hearing of his case before the Supreme Court, as a result

of which he was unable to conduct his defence.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 May 1993 and registered on

4 August 1993.

On 14 May 1993 the Commission decided not to apply Rule 36 of the

Commission's Rules of Procedure.

On 30 November 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

24 February 1995. The applicant replied on 24 April 1995.

THE LAW

The applicant complains that the failure to notify him properly

of the hearing of his case before the Supreme Court violated his rights

under Article 6 paras. 1 and 3 (b) and (c) (Art. 6-1, 6-3-b, 6-3-c) of

the Convention.

Article 6 paras. 1 and 3 (b) and (c) (Art. 6-1, 6-3-b, 6-3-c)

provide, insofar as relevant, that:

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

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

independent and impartial 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;

c. to defend himself in person or through legal

assistance of his own choosing ..."

The Government submit that, despite the fact that the

notification did not reach the applicant as a result of an apparent

misunderstanding, the applicant's defence rights were not prejudiced

to such an extent as to constitute a contravention of Article 6 paras.

1 and 3 (b) and (c) (Art. 6-1, 6-3-b, 6-3-c) of the Convention.

In this respect the Government contend that the applicant was

represented at first instance and on appeal by legal counsel and that

the facts of the case were not re-examined in cassation where the

Supreme Court solely examines whether the law has been applied

correctly and the correct procedure has been observed. Furthermore, the

Supreme Court checks as a matter of course to see whether there are any

defects in the disputed judgment.

The Government argue moreover that, although it appears that the

applicant was in contact with his lawyer at the time the appeal in

cassation was introduced by the applicant himself, the applicant's

lawyer did not notify the Supreme Court that he was representing the

applicant, in which case he would have received a copy of the

notification. Neither did the applicant's lawyer enquire about the date

on which the appeal in cassation was to be heard.

The applicant submits that his lawyer did not notify the Supreme

Court in advance of the fact that he was representing the applicant

since, in the lawyer's experience, he would only be informed by the

Supreme Court's registry that the case-file had not yet been received.

Instead, the applicant's lawyer waited for the applicant to be notified

of the date of the hearing, as required by law, at which time he would

have identified himself to the Court, would have received the case-file

and would have prepared the arguments underlying the appeal in

cassation.

It is true that the Supreme Court examines cases ex officio, but

in the applicant's opinion an appeal in cassation is examined more

thoroughly when grounds for the appeal have been submitted.

The Commission, having regard to the parties' submissions and the

case-law of the Convention organs, considers that the complaint under

Article 6 paras. 1 and 3 (b) and (c) (Art. 6-1, 6-3-b, 6-3-c) of the

Convention raises questions of fact and law which require an

examination of the merits. The application 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.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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A.Ö. v. THE NETHERLANDS

A.Ö. v. THE NETHERLANDS

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