Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25514/94

by Guno Vincentius MENCKEBERG

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 17 January 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

J.-C. GEUS

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 6 October 1994 by

Guno Vincentius MENCKEBERG against the Netherlands and registered on

2 November 1994 under file No. 25514/94;

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

11 July 1995 and the observations in reply submitted by the

applicant on 12 September 1995;

Having deliberated;

Decides as follows:

THE FACTS

1. Particular circumstances of the case

The applicant is a Dutch citizen, born in 1962, and resides in

Amsterdam. Before the Commission he is represented by Mr. G. Meijers,

a lawyer practising in Amsterdam.

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

summarised as follows.

On 6 July 1992, the applicant was arrested in flagrante delicto

attempting extortion together with one or more persons and detained on

remand. He was subsequently summoned to appear on 21 July 1992 before

the Magistrate (Politierechter) of the Regional Court (Arrondissements-

rechtbank) of Amsterdam on charges of attempted extortion committed in

association with one or more other persons.

On 21 July 1992, following adversarial proceedings in which the

applicant was represented by the assigned legal aid lawyer Mr. L.B.,

the Magistrate of the Regional Court acquitted the applicant and

ordered his immediate release. On 27 July 1992, the public prosecutor

lodged an appeal against this judgment with the Court of Appeal

(Gerechtshof) of Amsterdam.

On 31 July 1992, pursuant to Section 409 para. 2 of the Code of

Criminal Procedure (Wetboek van Strafvordering), an attempt was made

to notify the applicant of the public prosecutor's appeal. This

unsuccessful attempt was made at the applicant's official place of

residence, i.e. the address at which he was registered at that moment

at the Registry Office (Bevolkingsregister) of Amsterdam.

On 6 October 1992, in the prison at Heerhugowaard, where he was

detained in connection with another criminal case, the applicant was

notified in person that the public prosecutor had lodged an appeal

against the acquittal.

On 5 February 1993, an unsuccessful attempt was made at the

applicant's official place of residence to serve him with the summons

to appear before the Court of Appeal. According to the Registry Office

of Amsterdam, the address at which the attempt was made, was still the

applicant's official place of residence. Pursuant to Section 588 para.

4 of the Code of Criminal Procedure, the summons was, on 15 February

1993, presented to the Registrar (griffier) of the Regional Court.

On 4 March 1993, Mr. L.B., who had also represented the applicant

in the first instance proceedings, informed the Court of Appeal that

he had been assigned as the applicant's lawyer and requested to be

provided with the applicant's case-file.

In the morning of 16 March 1993, the Court of Appeal started its

examination of the case. The applicant was not present but his lawyer

was. The lawyer stated that he did not know why the applicant had not

appeared. The Court of Appeal declared the applicant in default of

appearance (verstek) and started its examination. At the request of the

Procurator General (Procureur-Generaal), the Court of Appeal adjourned

its examination until 2.30 p.m. that same day in order to hear police

officers D. and T. as witnesses.

At 2.30 p.m., the Court of Appeal resumed its examination. The

applicant was still not present. The applicant's lawyer, who could not

provide the Court of Appeal with compelling reasons (klemmende redenen)

for the applicant's absence, asked for leave to conduct the defence in

the applicant's absence. The request was rejected. The Court of Appeal

subsequently heard the two witnesses. The applicant's lawyer was not

allowed to put any questions to them.

The Procurator General informed the Court of Appeal that the

applicant, in three different sets of criminal proceedings had been

previously convicted, by judgments of 30 October 1992, 24 November 1992

and 11 December 1992 respectively, by the Magistrate of the Regional

Court of Amsterdam and sentenced to terms of imprisonment of three

months, three months and two months, respectively.

On 30 March 1993, the Court of Appeal quashed the Magistrate's

judgment, and convicted the applicant in absentia of attempted

extortion committed together with one or more other persons, and

sentenced him to four months' imprisonment. The Court of Appeal used

in evidence a statement of the victim and the statements of police

officers D. and T. on what they had seen at the time of the applicant's

arrest on 6 July 1992. The applicant received notice of the Court of

Appeal's judgment in prison.

The applicant subsequently lodged an appeal in cassation with the

Supreme Court (Hoge Raad). At that time, he was detained in the prison

at Arnhem. During the proceedings in cassation, the applicant was

assisted by another lawyer than in the proceedings before the Regional

Court and the Court of Appeal.

The applicant argued that, in view of the fact that on 6 October

1992 he had been officially notified in the penitentiary of the appeal

lodged by the prosecution, and in view of the fact that he had been

sentenced to several prison terms at the end of 1992, it should have

been clear to the Court of Appeal that it was doubtful whether he was

actually living at his official place of residence at the time the

attempts to serve him with the summons were made. The applicant further

argued that the Court of Appeal should have declared the summons void

or should have adjourned its examination of the case in order to give

him the opportunity to appear and conduct his defence.

The applicant also complained that the Court of Appeal had not

allowed the lawyer who assisted him at the time to conduct the defence

in his absence, the consequence of which had been that, in violation

of the principle of equality of arms, the defence could not question

the witnesses, whereas the Procurator General could. He pointed out

that his conviction was based to a large extent on the statements of

the police officers D. and T.

On 29 March 1994, the Advocate General (Advocaat-Generaal) at the

Supreme Court submitted his written conclusions. He found that the

summons to appear before the Court of Appeal had been lawfully served.

In his opinion, it had not been obvious during the appeal proceedings

that the applicant was in detention. He further stated that he agreed

with the Court of Appeal's rejection of the request of the applicant's

lawyer to conduct his client's defence in his absence.

On 31 May 1994, the Supreme Court rejected the applicant's appeal

in cassation.

2. Relevant domestic law

Pursuant to Section 409 para. 1 of the Code of Criminal Procedure

(CCP), the Registrar of the Regional Court transmits, after an appeal

has been lodged against a judgment of the Regional Court, the case-file

in question to the Court of Appeal. When only the public prosecutor has

lodged an appeal, the Registrar does not send the case-file to the

Court of Appeal until after the defendant has been notified of the

public prosecutor's appeal (Section 409 para. 2 CCP). According to

Section 412 para. 1 CCP, the President of the Court of Appeal

determines, if possible within eight days after the transmission of the

case-file, the day of the hearing on appeal.

The notification of judicial communications (gerechtelijke

mededelingen) to natural persons is regulated in Sections 585-590 CCP.

In principle, a summons to appear in court is served on the defendant

in person at his place of residence, usually by the mail carrier. If

the defendant is not present, the summons may be delivered to another

person present at the address who declares his willingness to pass it

on to the defendant without delay (Section 588 para. 1b CCP).

If delivery of the summons to another person at the defendant's

place of residence is also not possible, a notice is left behind giving

the address at which the defendant, or someone authorised to act on his

behalf, can collect the summons (usually the post office). If nobody

claims the summons, it is returned to the public prosecutor's office

(Section 588 paras. 2 and 3 CCP).

The public prosecutor's office then verifies at the Registry

Office of the relevant municipality whether the defendant was in fact

registered at the address where the summons was served on the day on

which the summons was presented and five days afterwards. If this

proves to be the case, the summons is presented to the Registrar of the

Regional Court that will deal or has dealt with the case. The Registrar

of the Regional Court will then send the summons by normal mail to the

defendant's address (Section 588 para. 4 CCP).

If a defendant is detained in the Netherlands in connection with

the case to which the summons refers, the summons must be served on the

defendant in person (Section 588 para. 1a CCP).

According to Section 590 para. 1 CCP, the notification is null

when the statutory regulations concerning notification of judicial

communications have not been respected. However, this nullity will have

no effect, when the defendant appears voluntarily at the hearing, or

when a situation has occurred from which it ensues that the defendant

was aware of the day of the hearing before the statutory delay of

summoning (Section 590 para. 2 CCP).

Under Section 399 para. 1 CCP, an accused who has been convicted

in absentia in a final judgment (einduitspraak) by the first instance

court may file an objection (verzet). Such an objection entitles the

accused to a full retrial by the same court (Section 403 CCP). An

objection may not be filed by an accused who has, or has had, the

opportunity to appeal to a higher court with jurisdiction as to both

fact and law (Section 399 para. 2 CCP). It follows from Section 399

para. 1 CCP that no objection may be filed against a judgment in

absentia given on appeal.

Under Dutch law, an accused who has been declared in default of

appearance is not entitled to have his defence conducted by counsel,

unless the court finds that there are "compelling reasons" preventing

the accused from appearing (for further details see Eur. Court H.R.,

Lala judgment of 22 September 1994, Series A no. 297-A, pp. 9-11,

paras. 16-21).

COMPLAINTS

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

Convention that during the appeal proceedings he was not informed of

the accusations against him. He argues that the judicial authorities,

when trying to serve him with the summons to appear before the Court

of Appeal, only had regard to the information of the Registry Office

of Amsterdam, whilst they should have been aware of the fact that he

was in detention at that time.

2. He complains under Article 6 paras. 1 and 3 (c) of the Convention

that he was not given the opportunity to defend himself before the

Court of Appeal, although he had not waived the right to defend himself

and although it was not necessary in the interest of the administration

of justice to examine his case in his absence.

3. The applicant further complains under Article 6 paras. 1 and 3

(c) of the Convention that at the Court of Appeal's hearing of 16 March

1993 his lawyer was not allowed to conduct his defence in his absence.

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

Convention that at the Court of Appeal's hearing of 16 March 1993 the

Procurator General could put questions to the witnesses, whereas the

defence could not.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 October 1994 and registered

on 2 November 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 11 July

1995, after an extension of the time-limit fixed for that purpose. The

applicant replied on 12 September 1995.

THE LAW

The applicant complains under Article 6 paras. 1 and 3 (a), (c)

and (d) (Art. 6-1 ; 6-3-a ; 6-3-c ; 6-3-d) of the Convention that in

the proceedings on appeal he was not informed of date of the hearing

before the Court of Appeal although the authorities should have been

aware that he was in detention, that he could therefore not defend

himself before the Court of Appeal, that at the Court of Appeal's

hearing of 16 March 1993 his lawyer was not allowed to conduct his

defence in his absence, including the questioning of witnesses heard

and questioned by the prosecution in the course of that hearing.

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

provides as follows:

"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:

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

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

accusation against him;

...

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;

d. to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him:

...."

The Government submit that the notification procedure followed

was in conformity with Dutch law. The applicant was informed in person

of the fact that the prosecution authorities had filed an appeal and

the subsequent summons to appear before the Court of Appeal was served

in accordance with the relevant domestic statutory rules.

According to the Government, there was nothing either in the

contents of the documents available to the prosecution authorities for

the hearing on appeal or in the points raised during the hearing on

appeal itself to arouse any suspicion that the applicant had been

lawfully detained at the moment of the delivery of the summons on

appeal. If this had become apparent, the Court of Appeal could have

decided to suspend its examination in order to allow the applicant

another opportunity to attend.

The fact that the prosecution informed the Court of Appeal on 16

March 1992 that the applicant, in three separate previous judgments,

had been sentenced to a total of eight months' imprisonment could not

lead to the conclusion that the applicant was in detention at that

moment in connection with the execution of these sentences. The

Government add that none of the documents in the applicant's case-file

makes it clear why the applicant was detained on 6 October 1992, when

in the Heerhugowaard prison he was personally notified of the

prosecution's appeal.

The Government further submit that the applicant's lawyer in the

proceedings before the Court of Appeal was likewise unaware of the

applicant's detention, given that he was unable to inform the Court of

Appeal of the reasons for the applicant's absence.

The Government also submit that about five months after the

hearing before the Court of Appeal in the present case, namely in

August 1993, the public prosecutor's office at the Regional Court in

Amsterdam introduced a computerised system for finding out who is in

detention and where. At the time the appeal summons in the present case

was issued, the only way to determine whether an accused was detained

was on the basis of the available documents in the case-file.

The Government finally submit that the applicant could have been

expected to have made more of an effort to exercise his right to a

defended action and that the applicant's lawyer fell short of his

responsibility as an accused person's counsel to inform his client of

the time at which the appeal hearing would take place. The applicant

and his lawyer could each from their side have contacted the other

prior to the hearing on appeal, which apparently each of them has

failed to do.

The applicant refutes the Government's arguments. He submits that

it is common knowledge that only judicial prison sentences are executed

in the prison at Heerhugowaard and that all final convictions are

registered in the general documentation register of which a summary was

made available to the prosecution and the Court of Appeal at the

hearing held on 16 March 1993.

The applicant further submits that it is evident from para. 9ff

of the conclusions which the Advocate General to the Supreme Court

submitted in recent proceedings in cassation in another case (Hoge

Raad, 14 February 1995, Nederlandse Jurisprudentie 1995, no. 536) that

since 1985 it has been possible to trace where convicted persons are

being detained by way of a computerised information system ("MITRA").

It may be assumed that the prosecution authorities therefore were able

to discover by means of this system that the applicant was detained on

other grounds on 6 October 1992.

The applicant maintains that the prosecution authorities made

insufficient effort in his case to inform him of the hearing before the

Court of Appeal and thereby violated his rights under Article 6 paras.

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

Insofar as the applicant relies on Article 6 para. 3 (a)

(Art. 6-3-a) of the Convention, the Commission notes that the applicant

was arrested in flagrante delicto and subsequently summoned to appear

before the Magistrate of the Amsterdam Regional Court on charges of

attempted extortion committed in association with one or more other

persons. The Commission further notes that the applicant was informed

in person of the fact that the prosecution authorities had filed an

appeal against his acquittal by the Magistrate and that it has not been

argued nor appeared that these charges were modified in the proceedings

on appeal.

The applicant has not complained that the charges contained in

the summons ordering him to appear before the Magistrate fell short of

the requirements of Article 6 para. 3 (a) (Art. 6-3-a) of the

Convention.

In these circumstances, the Commission finds no indication that

the applicant's rights under Article 6 para. 3 (a) (Art. 6-3-a) of the

Convention have been violated in the proceedings at issue.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

As regards the applicant's complaints under Article 6 paras. 1

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

Commission is of the opinion, after a preliminary examination of the

substance of these complaints in the light of the parties' submissions,

that they raise important issues of fact and law requiring an

examination on the merits. These complaints cannot, therefore, be

declared inadmissible as being manifestly ill-founded. No other grounds

for inadmissibility have been established.

For these reasons, the Commission, unanimously,

DECLARES INADMISSIBLE the applicant's complaint under Article 6

para. 3 (a) (Art. 6-3-a) of the Convention that during the appeal

proceedings he was not informed of the accusations against him;

DECLARES ADMISSIBLE, without prejudging the merits, the remainder

of the application.

Secretary to the Second Chamber President of the Second Chamber

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

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MENCKEBERG v. THE NETHERLANDS

MENCKEBERG v. THE NETHERLANDS

LEXI