Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24205/94

by Fehmi ALAGÖZ

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 12 July 1993 by

Fehmi ALAGÖZ against the Netherlands and registered on 26 May 1994

under file No. 24205/94;

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 July 1995 and the observations in reply submitted by the

applicant on 10 October 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1951. He is

presently serving a prison sentence in Leeuwarden, the Netherlands.

Before the Commission he is represented by Mrs. Judith Serrarens, a

lawyer practising in Maastricht, 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 arrested in March 1991 and subsequently

detained on remand. On 18 October 1991, following adversarial

proceedings, he was convicted of drug offences by the Regional Court

(Arrondissementsrechtbank) of Zutphen, which imposed a prison sentence.

He lodged an appeal against his conviction with the Court of Appeal

(Gerechtshof) of Arnhem.

Following adversarial proceedings, the Court of Appeal convicted

the applicant on 31 March 1992 of drug offences and sentenced him to

twelve years' imprisonment. At that time, the applicant was in

detention in a remand centre (huis van bewaring) in Arnhem.

The applicant lodged an appeal in cassation with the Supreme

Court (Hoge Raad) on 31 March 1992.

On 2 February 1993, a hearing was held by the Supreme Court.

Neither the applicant nor his lawyer was present.

On 16 March 1993, the Procurator General (Procureur-Generaal) to

the Supreme Court submitted his written conclusions. He stated that no

grounds for the applicant's appeal in cassation had been submitted and

that he had found no grounds on which the Court of Appeal's judgment

should be quashed.

On 18 May 1993, the Supreme Court rejected the applicant's appeal

in cassation. Noting that the applicant had not submitted grounds for

his appeal in cassation and after an examination ex officio of the

appeal, the Supreme Court stated that it found no grounds on which the

Court of Appeal's judgment should be quashed.

On 23 June 1993, a prison official informed the applicant that

the Supreme Court had rejected his appeal in cassation.

A notification (aanzegging) within the meaning of Section 437

para. 1 of the Code of Criminal Procedure (Wetboek van Strafvordering),

informing the applicant that his case would be heard by the Supreme

Court on 2 February 1993, never reached the applicant. In October 1992,

the office of the Procurator General at the Supreme Court contacted the

Arnhem remand centre where the applicant was being held at the time

when the appeal in cassation had been lodged on his behalf. The office

was informed that the applicant was no longer being held in this

institution. The Supreme Court then contacted the office of the

Procurator General at the Arnhem Court of Appeal, which informed it

that the applicant was not being held in any other remand centre in the

Netherlands.

Staff at the office of the Procurator General at the Supreme

Court subsequently made enquiries at the National Population Register

Inspectorate (Rijksinspectie van het Bevolkingsregister) to find out

whether the Inspectorate knew of any address in the Netherlands at

which the applicant was registered. On 30 October 1992, the

Inspectorate responded to this question in the negative.

On 26 October 1992, the notification was presented to the

Registrar (griffier) of the Hague Regional Court, pursuant to section

588 para. 5 of the Code of Criminal Procedure. On the notification it

was written that the applicant had at present no known place of

residence or abode in the Netherlands ("tzbwovhtl", i.e. thans zonder

bekende woon- of verblijfplaats hier te lande).

Between 5 October 1992 and 27 January 1993, the applicant was

detained in a penitentiary in Rotterdam, the Netherlands.

On 30 June 1994, the applicant started civil summary proceedings

(kort geding) against the State of the Netherlands, requesting his

immediate release on account of the judicial authorities' failure to

inform him of the date of the hearing of his case by the Supreme Court.

A hearing took place before the President of the Regional Court of The

Hague. The applicant stated, inter alia, that he would have liked to

submit grounds for his appeal in cassation, in particular concerning

the way in which evidence against him had been gathered. The

applicant's request was rejected.

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 the 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 laid down in section 588 para. 1 (a) CCP.

However, if the defendant has no known place of residence or

abode in the Netherlands, the notification is presented to the

Registrar of the Regional Court which dealt with or will deal with the

case, or the Registrar of the Regional Court in whose district the case

was dealt with or will be dealt with (section 588 para. 5 CCP). If the

defendant resides abroad at a known address, the prosecution department

will send the notification to that address (section 588 para. 6 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 that the failure to notify him of the

hearing of his case by the Supreme Court violated his right to a fair

trial under Article 6 paras. 1 and 3 (c) of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 July 1993 and registered on

26 May 1994.

On 6 April 1995, 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

21 July 1995, after an extension of the time-limit fixed for that

purpose. The applicant replied on 10 October 1995, also after an

extension of the time-limit.

On 5 December 1995, the Commission granted the applicant legal

aid.

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

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

relevant, provide:

"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:

...

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 for reasons which can no

longer be precisely ascertained, the applicant's defence rights were

not prejudiced to such an extent as to constitute a contravention of

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

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.

In the second place the Government state that up to the moment

of delivery of the notification the applicant had been detained in an

unusually large number of different places as a result of the fact that

the risk of his escape and the risk he posed to the community were

assessed to be very high. These transfers were therefore a result of

his own conduct. The Government explain that it may happen that the

most recent transfer of a detained person is not immediately

incorporated into the centrally administered files at the Ministry of

Justice.

Another factor which may have made it more difficult to trace the

applicant was the fact that he had indicated different dates of birth

and that he is also known to the Ministry of Justice by an alias.

The Government submit that limits may be set to the length to

which the judicial authorities may be expected to go in order to

expedite criminal proceedings. In their opinion, the office of the

Procurator General at the Supreme Court tried sufficiently hard to

deliver the notification of the hearing to the applicant in person.

It is finally submitted by the Government that the applicant's

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

applicant and that, if she had done so, she 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. Moreover,

the applicant and his lawyer were never deprived of the opportunity to

submit written grounds for appeal in cassation. In view of the fact

that an appellant in cassation may be notified of the date of the

hearing as late as eight days before it is due to take place, it would

in any event have been wiser not to postpone the submission of these

grounds.

The applicant replies that statutory provisions allow for the

submission of grounds for appeal in cassation and it can therefore not

be held, as the Government appear to suggest, that these grounds do not

serve any real purpose in light of the fact that in any event the

Supreme Court examines an appeal ex officio.

Furthermore, the applicant does not agree that the office of the

Procurator General at the Supreme Court tried sufficiently hard to

serve the notification on him in person. In this respect he contends

that it may be expected of judicial authorities to be able at all times

to establish where a detained person is being held. In addition, the

applicant had already been detained at a Rotterdam penitentiary for

three weeks at the time attempts were made to establish his

whereabouts. Given that other judicial documents have successfully been

served on him, the applicant does not see how the failure to notify him

of the hearing before the Supreme Court could have been due to a

confusion over his date of birth or his name.

The applicant adds that no rule of law obliges a lawyer to notify

the Supreme Court of the fact that he is representing an appellant in

cassation before the notification of the hearing has been received. In

practice this notification is served more than eight days before the

hearing as is illustrated in the present case where the notification

was issued more than two months before the hearing was due to take

place.

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

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

Article 6 para. 1 and 3 (c) (Art. 6-1, 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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ALAGÖZ v. the NETHERLANDS

ALAGÖZ v. the NETHERLANDS

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