Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23699/94

by S.D.R.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 4 July 1995, 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

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 4 March 1994 by

S.D.R. against the Netherlands and registered on 17 March 1994 under

file No. 23699/94 ;

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

16 February 1995 and the observations in reply submitted by the

applicant on 15 March 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1944, and resides at

The Hague. Before the Commission he is represented by Mr. B.R. Angad

Gaur, a lawyer practising in The Hague.

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

summarised as follows.

A. The particular circumstances of the case

By summons of 23 September 1991 the applicant was summoned to

appear before the Magistrate (Politierechter) at the Regional Court

(Arrondissementsrechtbank) of The Hague on the charge of driving under

the influence of alcohol. On 20 December 1991, following a hearing at

which neither the applicant nor his lawyer had appeared, the Magistrate

convicted the applicant of driving under the influence of alcohol and

sentenced him to two weeks' imprisonment and twelve months'

disqualification from driving a motor vehicle.

On 3 January 1992, the applicant filed an appeal against the

Magistrate's judgment with the Court of Appeal (Gerechtshof) of The

Hague. He was summoned to appear before the Court of Appeal on

13 January 1993.

On 13 January 1993, the applicant did not appear before the Court

of Appeal. His lawyer, however, was present. The Court of Appeal

declared the applicant in default of appearance. The applicant alleges

that his lawyer was fully robed and, although the minutes of the

hearing do not state this, asked for the Court of Appeal's permission

to conduct the applicant's defence.

On 13 January 1993, the Court of Appeal quashed the Regional

Court's judgment on technical grounds, convicted the applicant of

driving under the influence of alcohol and sentenced him to two weeks'

imprisonment and twelve months' disqualification from driving a motor

vehicle.

In his appeal in cassation to the Supreme Court (Hoge Raad), the

applicant complained that the Court of Appeal had not allowed his

lawyer to conduct his defence in his absence. He invoked Article 6 of

the Convention.

In its judgment of 30 November 1993, the Supreme Court rejected

the applicant's appeal in cassation. It held, inter alia:

"In cases where the accused has not appeared but his lawyer is

present at the beginning of the court hearing, the court may

proceed on the assumption that if the lawyer of the accused

wishes to act as such despite the absence of his client, he will

make this known to the court. As the record of the hearing of the

Court of Appeal contains nothing which might indicate that the

lawyer made it known to the Court of Appeal that he wished to act

in that capacity - his own presence cannot serve this purpose -

it must be assumed that he has failed to do so. Under these

circumstances the Court of Appeal - notwithstanding the quoted

treaty provisions and national law - was not obliged to allow the

lawyer to conduct the defence."

The applicant has not referred to any reason for his absence at

the hearing of his case before the Court of Appeal, either before the

domestic courts or before the Commission.

B. Relevant domestic law and practice

The Netherlands Code of Criminal Procedure (Wetboek van

Strafvordering) does not ensure the right 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 of the Convention that

at the hearing before the Hague Court of Appeal, his lawyer was not

allowed to conduct his defence in his absence and that he was thus

deprived of a fair trial in the determination of the criminal charges

against him.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 March 1994 and registered on

17 March 1994.

On 30 November 1994 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on its admissibility and merits.

The Government's written observations were submitted on

16 February 1995. The applicant replied on 15 March 1995.

THE LAW

The applicant complains that in the determination of the criminal

charges against him he did not receive a fair hearing 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 facts in the case at issue 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 (Eur. Court H.R., Lala and Pelladoah judgments of

22 September 1994, Series A nos. 297-A and 297-B respectively).

Following these judgments, counsel for an accused who has not appeared

in court is now always given the opportunity to speak in his client's

defence. The Government are also considering amending the law on this

point.

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

Commission.

The applicant reiterates that it was obvious that the aim of his

lawyer's fully robed presence at the hearing before the Court of Appeal

was to conduct his defence. He maintains that the Court of Appeal

unjustly did not allow his lawyer to do so.

The Commission notes that this application raises the same issues

as the cases of Lala and Pelladoah (above-mentioned judgments of

22 September 1994, Series A nos. 297-A and 297-B).

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.

Secretary to the Second Chamber President of the Second Chamber

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

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S.D.R. v. the NETHERLANDS

S.D.R. v. the NETHERLANDS

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