AS TO THE ADMISSIBILITY OF

                      Application No. 15553/89

                      by Jean Helena Jacobus NICOL

                      against the Netherlands

      The European Commission of Human Rights (Second Chamber) sitting in

private on 11 May 1994, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 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

           Mr.   K. ROGGE, 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 23 May 1989 by Jean

Helena Jacobus NICOL against the Netherlands and registered on

28 September 1989 under file No. 15553/89;

      Having regard to the report provided for in Rule 47 of the Rules of

Procedure of the Commission;

      Having regard to:

-     reports provided for in Rule 47 of the Rules of Procedure of the

      Commission;

-     the observations submitted by the respondent Government on

      26 November 1992 and the observations in reply submitted by the

      applicant on 25 February 1993;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is a Dutch citizen, born in 1944 and residing in

Klimmen, the Netherlands.  He is working as a parole officer.

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

summarised as follows.

      On 16 June 1984 the National Police stopped the applicant on the

highway.  An official report was drawn up as it appeared that the

applicant's car with the number plate 74-92-UE was uninsured and

technically unfit for use on the public road.

      By summons (dagvaarding) of 4 October 1985, served on the applicant

in person on 5 October 1985, he was ordered to appear on 11 October 1985

before the District Court (kantongerecht) of Maastricht on charges of

having driven a technically unfit and uninsured car on a public road.

      The applicant states that his request to consult his complete case-

file at the District Court was refused. He was only allowed to consult

his case-file after some documents had been taken out on the instructions

of the public prosecutor (Officier van Justitie). The applicant states

that he objected against the removal of certain documents from the file,

but that he was informed that his protests were meaningless, since the

public prosecutor could not be reached anymore. According to the

Government the applicant's case-file contains no indication that he has

made such an objection.

      On 11 October 1985 the District Court judge (kantonrechter),

following adversarial proceedings in which the applicant confirmed that

he had driven his car with the number plate 74-92-UE on the public road

on 16 June 1984, convicted and sentenced him for having driven a

technically unfit car on the public road. In respect of the charge of

having driven an uninsured car the District Court judge suspended the

examination of this charge for an indefinite period pending a further

investigation into the insurance of the car.

      On 20 January 1987 the District Court judge resumed the examination

of the charge of having driven an uninsured car. After having heard the

applicant, who then informed the District Court judge that he had been

refused access to his case-file, the District Court judge convicted and

sentenced the applicant for having driven an uninsured car on the public

road.

      The applicant filed an appeal against both convictions with the

Regional Court (Arrondissementsrechtbank) of Maastricht. The Registry of

the District Court sent the applicant's two case-files to the Registry

of the Regional Court on 16 January 1986 and 16 June 1987 respectively,

where they were received on 17 January 1986 and 17 June 1987

respectively.

      By summonses of 24 July 1987, served on the applicant in person on

17 August 1987, he was ordered to appear on 22 September 1987 before the

Regional Court.

      The applicant states that on 17 August 1987 he requested the

Regional Court's Registry to allow him to consult his complete case-file,

but that this was refused.  He was given access after certain documents

had been removed from the file. Following his protests he was informed

that he could not consult certain documents since they were not for him.

According to the Government there is no evidence in the applicant's file

that he has requested access to his case-file.

      On the same day the applicant subsequently submitted an objection

in writing (bezwaarschrift) against the respective summonses to the

Regional Court and requested the Court to dismiss the charges against him

on the ground that he had been denied access to his case-file and

therefore could not prepare his defence.

      By letter of 21 August 1987 the public prosecutor informed the

applicant that, according to Sections 415 and 425 of the Code of Criminal

Procedure (Wetboek van Strafvordering), the procedure of objecting

against a summons is not applicable to summonses to appear before an

appeal court and, since the applicant's objection was thus inadmissible

and the summons would not be cancelled, advised him to appear at the

hearing on 22 September 1987.  The public prosecutor also informed the

applicant that a certain letter by the applicant's insurance agent about

the applicant's car insurance had been joined to the applicant's file and

that this agent had been summoned to testify at the hearing.

      The applicant did not appear at the hearing before the Regional

Court on 22 September 1987. After having declared the applicant in

default of appearance, the Regional Court quashed both judgments by the

District Court judge on formal grounds.  After a full new examination of

the facts and evidence, including the statement made by the applicant's

insurance agent before the Regional Court, the police reports and the

applicant's statement before the District Court judge, the Regional

Court, on 22 September 1987, convicted the applicant in absentia of

having driven a technically unfit car on the public road and sentenced

him to a fine of one hundred Dutch guilders. In a further judgment it

convicted the applicant in absentia of having driven an uninsured car on

the public road and sentenced him to a suspended fine of two hundred

Dutch guilders with two years' probation.

      The applicant states that he contacted the Registry of the Regional

Court on 2 October 1987, assuming that the hearing of 22 September 1987

had been postponed following his objections against the summonses.

According to the Government there are no documents in the applicant's

file showing that he did contact the Registry on that date. According to

the applicant, he then learnt that, on 22 September 1987, he had been

convicted and sentenced in absentia in both proceedings.  When he

requested a copy of both judgments he was informed that they were not yet

available.  On the same date the applicant filed appeals in cassation

against both judgments with the Supreme Court (Hoge Raad).

      The applicant states that on 2 December 1987 he contacted the

Regional Court's Registry again and was told that the judgments were not

yet available as they were circulating for signature. He was also

informed that requests of this kind must be addressed to the Registry in

writing. The Government state there is no record of the applicant having

contacted the Court on 2 December 1987.

      The applicant further states that he asked the Regional Court's

Registry by letters of 22 December 1987 and 25 March 1988 for copies of

the judgments of 22 September 1987. In telephone conversations of

4 July 1988 and 23 September 1988 with the Registry he was informed that

his requests for copies of the judgments had been noted. According to the

Government the letters the applicant alleges to have sent on

22 December 1987 and 25 March 1988 are not in his file, nor is there any

record of the telephone conversations the applicant claims to have had

with the Registry on 4 July 1988 and 23 September 1988.

      The Registry of the Regional Court sent the applicant's two case-

files to the Supreme Court's Registry on 28 July 1988, where they were

received on 29 July 1988.

      By letter of 18 October 1988 the applicant submitted his written

means of cassation in respect of both convictions to the Supreme Court.

In these submissions he complained, inter alia, that Article 6 of the

Convention had been violated in that he had not received a fair hearing.

The principle of equality of arms had been violated by the refusal of

access to his case-file and the fact that, until that day, he had never

been provided with a copy of the judgments of 22 September 1987.

      On 3 January 1989 the Supreme Court rejected the applicant's appeals

in cassation, and the applicant was informed of this decision by the

Supreme Court's Registry by way of a notification (aanzegging).

      The applicant states that by letter of 14 April 1989 he requested

the Registry of the Supreme Court to provide him with copies of the

conclusions of the advocate-general and the Supreme Court judgments in

his case. According to the Government there is no such letter in the

applicant's case-file.

      When the applicant submitted his application to the Commission, he

stated that he had still not received the texts of the judgments of the

Regional Court and the Supreme Court.

RELEVANT DOMESTIC LAW

a.    Access to documents

      Pursuant to Sections 30 - 34 and 51 of the Code of Criminal

Procedure the accused or his lawyer is entitled to have access to the

file in the accused's case as from the start of the preliminary

investigation until the proceedings have ended.

      There are, however, certain restrictions of this right during the

preliminary investigation. Under Section 30 para. 2 of the Code of

Criminal Procedure the investigating judge (rechter-commissaris) or the

prosecution authorities (openbaar ministerie) can refuse an accused or

his lawyer access to certain documents in the case-file, if they consider

this to be in the interest of the investigation of the case. In such a

case the accused or his lawyer will be informed in writing that the file

is not complete (Section 30 para. 2). There is no obligation to indicate

to the accused or his lawyer which documents have been taken out. However

as soon as the summons to appear before the court has been served, the

accused or his lawyer is entitled to have access to the complete case-

file. The failure to inform an accused or his lawyer in writing that the

case-file is not complete may entail nullity. If it is the public

prosecutor, who fails to provide the accused or his lawyer with a

statement in writing that the case-file is incomplete, the latter two can

also request the Procurator-General (Procureur-Generaal) to order that

the accused or his lawyer be provided with a statement in writing within

the meaning of Section 30 para. 2 of the Code of Criminal Procedure.

      When full access to a case-file is refused the accused can, pursuant

to Section 32 of the Code of Criminal Procedure, file an objection

(bezwaarschrift) within a time-limit of fourteen days with the competent

court and pursuant to Section 35 of the Code of Criminal Procedure

request the court to be heard. The absence of a written statement does

not necessarily lead to inadmissibility of an objection against a refusal

to grant access to a complete case-file.

b.    Objection against a summons

      In order to protect persons from being prosecuted too readily and

unnecessarily having to stand trial in public and where no notification

of the decision to continue the prosecution (kennisgeving van verdere

vervolging) has been issued, Section 262 of the Code of Criminal

Procedure enables an accused to file an objection (bezwaarschrift) with

the Regional Court against a summons to appear before a court within a

time-limit of eight days following the serving (betekening) of the

summons. The judge's Chamber (Raadkamer) of the Regional Court will then

as soon as possible rule on the objection, i.e whether or not it is

competent to examine it, whether or not it is admissible and, if so,

whether or not the case should go to trial.

      However, according to Section 398 para. 3 of the Code of Criminal

Procedure no objection lies against a summons to appear before a District

Court judge. Furthermore, no objection lies against a summons to appear

before an appeal court.

c.    Notification of judgment

      Pursuant to Section 362 of the Code of Criminal Procedure judgment

must be pronounced in public. Where the accused is present, the President

of the court shall inform him in accordance with Section 364 of the Code

of Criminal Procedure of the possibilities for appeal and the time-limit

for filing an appeal.

      Section 365 of the Code of Criminal Procedure provides that the

judgment shall be signed within forty-eight hours by the judges who have

rendered it and the Registrar to the court. Failure to do so does not

entail nullity (cf. Hoge Raad, judgment of 12 April 1949, N.J. 1949, no.

429). As soon as the judgment has been signed and, in any

event, after the expiry of the forty-eight hours stipulated in Section

365, the accused or his lawyer can consult the judgment and the procès-

verbal of the hearing.

      According to Section 366 of the Code of Criminal Procedure the

judgment must be served on the accused as soon as possible, where he has

been convicted in absentia. If, however, the summons to appear before the

court has been served on the accused in person, it is not required to

serve the judgment on him, since in that case he is aware of the

proceedings against him.

      Under Section 433 of the Code of Criminal Procedure the accused, who

has filed an appeal on points of law, may file his written grounds of

appeal with the Supreme Court not later than the day of the hearing

before the Supreme Court.

COMPLAINTS

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

Convention that he did not receive a fair trial in that the principle of

equality of arms has been violated, as he was denied access to his case-

file and was not provided with copies of the judgments of the Regional

Court of 22 September 1987 and therefore could not prepare his defence

satisfactorily.

2.    The applicant complains under Article 6 para. 1 of the Convention

that the public prosecutor declared his objections against the summonses

inadmissible.  The applicant submits that the public prosecutor, in this

respect, cannot be considered as an independent and impartial judge.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 23 May 1989 and registered on 28

September 1989.

      On 7 November 1990 the Commission decided to bring the application

to the notice of the respondent Government and to invite them pursuant

to Rule 48 para. 2 (a) of its Rules of Procedure to submit certain

documents.

      On 11 January 1991 the Government submitted the documents, which

were communicated to the applicant for comments. His comments in reply

were submitted on 30 March 1991.

      On 27 August 1991 the President of the Commission requested the

Government to submit certain additional documents. On 20 September 1991

the Government submitted additional documents, which were sent to the

applicant for information.

      On 3 September 1992 the Commission decided to invite the respondent

Government pursuant to Rule 48 para. 2 (b) of its Rules of Procedure to

submit written observations on the admissibility and merits of the

application and to refer the application to the Second Chamber of the

Commission.

      The Government submitted their observations on 26 November 1992 and

the applicant's observations in reply were submitted on 25 February 1993.

      On 8 September 1993 the Commission (Second Chamber) requested the

Government to submit additional information and a copy of the applicant's

complete case-file concerning the two proceedings at issue. The requested

information and the original case-file were submitted by the Government

on 5 November 1993 and a copy was communicated to the applicant.

THE LAW

1.    The applicant complains under Article 6 paras. 1 and 3 (b)

(Art. 6-1, 6-3-b) of the Convention that he did not receive a fair trial

as he was denied access to his case-file and was not provided with texts

of the judgments of the Regional Court and therefore could not prepare

his defence satisfactorily and that the public prosecutor declared his

objections against the summonses inadmissible.

      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 and public hearing within a

      reasonable time 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;

      (...)."

      The Commission recalls at the outset that the right of the accused

to have adequate facilities for the preparation of his defence is a

particular aspect of the notion of a fair trial (Eur. Court H.R., Melin

judgment of 22 June 1993, to be published in Series A no. 261-A, para.

21). It will therefore examine the applicant's complaints under paras.

1 and 3 (b) of Article 6 (Art. 6-1+6-3-b) taken together.

a.    Refusal of access to the case-file

      The applicant submits that when he requested access to his case-file

at the District Court, a number of documents were taken out of the file

in his presence and he could then consult the rest of the file. When he

objected to the removal of those documents he was informed that this was

done on the public prosecutor's instructions and that it was pointless

to protest, since the public prosecutor could not be reached.

      The applicant further states that when he requested access to his

file at the Registry of the Regional Court for the proceedings on appeal,

again certain documents were removed from the file. He protested again

and was informed that those documents were not for him. The public

prosecutor failed to provide him with a written statement that the file

was not complete as required by Section 32 of the Code of Criminal

Procedure.

      The applicant finally submits that he did not attend the hearing of

22 September 1987 before the Regional Court since he presumed that

pursuant to Section 262 of the Code of Criminal Procedure this hearing

would not take place until his objections against the summonses had been

decided upon.

      The Government submit that, as a rule, access to a case-file is

allowed to a suspect if the file is present and the date of the hearing

is known. In principle no documents are removed from the file. However,

erroneously filed documents belonging to an unrelated other case or

marked documents intended for internal use such as draft judgments may

be removed. The Government state that they cannot verify whether or not

such documents were removed from the applicant's file, but find that it

is unlikely since the case involved offences of a minor nature, in

respect of which the files seldom contain documents which should be

removed.

      The Government argue that, apart from the applicant's statement

before the District Court judge on 20 January 1987 that he had not been

able to see the entire case-file and his written objections of

17 August 1987 against the summonses to appear before the Regional Court,

there is no evidence in his case-file in support of his alleged attempts

to consult his case-file at the Registry of the District Court or the

Regional Court. Moreover, the applicant failed to appear at the hearing

before the Regional Court on 22 September 1987, where he could have made

his objections known, and the procès-verbal of this hearing does not

refer to any complaint by him that he had not been able to consult the

file. Furthermore, since the applicant had not invoked this argument

before the Regional Court, the Supreme Court could not deal with this

complaint when he raised it in the cassation proceedings as the Supreme

Court cannot take new facts into consideration, but bases its decision

on the facts as established and assessed by the trial court.

      The Government finally submit that the applicant has failed to lodge

an objection under Section 32 of the Code of Criminal Procedure against

the alleged refusal of access to his complete case-file. This remedy

applies even where there is no written statement by the public prosecutor

or the investigating judge. The applicant has therefore failed to exhaust

domestic remedies within the meaning of Article 26 (Art. 26) of the

Convention.

      In respect of the proceedings before the District Court, the

Commission notes that the District Court's judgments of 11 October 1985

and 20 January 1987 respectively were quashed on appeal. In these

circumstances the Commission considers that in respect of the proceedings

before the District Court the applicant can no longer claim to be a

victim within the meaning of Article 25 (Art. 25) of the Convention.

      It follows that this part of the application must be rejected under

Article 27 para. 2 (Art. 27-2) of the Convention.

      As regards the alleged refusal of access to the complete case-file

at the Regional Court's Registry on 17 August 1987, the Commission is not

required to decide whether or not it discloses any appearance of a

violation of Article 6 (Art. 6) of the Convention as, under Article 26

(Art. 26) of the Convention, it may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law.

      The applicant failed to file an objection within the meaning of

Section 32 of the Code of Criminal Procedure against the removal of

certain documents from his case-file before he was allowed to consult it,

and has, therefore, not exhausted the remedies available to him under

Dutch law. An examination of the case as it has been submitted does not

disclose the existence of any special circumstances which might have

absolved the applicant, according to the generally recognised rules of

international law, from exhausting the domestic remedies at his disposal.

Moreover, the Commission does not find that the applicant's objections

of 17 August 1987 against the summonses to appear before the Regional

Court constituted an effective remedy in respect of the present

complaint.

      It follows that in this respect the applicant has not complied with

the condition as to the exhaustion of domestic remedies and that this

part of the application must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

b.    The objections against the summonses to appear before the Regional

Court

      The Commission observes that the public prosecutor informed the

applicant by letter of 21 August 1987 that the procedure of objecting

against a summons is not applicable to summonses to appear before an

appeal court and, as the applicant's objections were therefore

inadmissible, advised him to appear at the hearing on 22 September 1987.

      The Commission finds that the information given to the applicant by

the public prosecutor did not affect the fairness of the criminal

proceedings and that the charges against the applicant were determined

by independent and impartial courts.

      It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

c.    Failure to provide the applicant with copies of the Regional Court

judgments of 22 September 1987

      The applicant considers it "rather strange" that between 1984 and

1988 requests for copies of judgments against which an appeal had been

lodged were apparently referred to the appeal court dealing with the

case. He submits that in any event he was never informed, not even after

his written requests for copies of the judgments of the Regional Court,

that he should address such a request to the Supreme Court. He was only

informed that copies of the judgments would become available for him when

the judges had signed them.

      The Government submit that between 1984 and 1988 it was a practice

at the Registry of the Maastricht Regional Court not to provide copies

of judgments, which were being appealed against, but to refer such

requests to the court where the appeal had been lodged and to add such

written requests to the case-file. The Government consider it possible

that the applicant did request copies of both judgments of

22 September 1987 and that he was referred to the Supreme Court, but

submit that there is no evidence in the case-file in support of his

alleged attempts to obtain copies of the two judgments of

22 September 1987.

      The Government add that, as a rule, the Supreme Court allows access

to case-files to convicted persons making a request to that end. However,

there is no record in the file of a request by the applicant, either to

the Regional Court Registry or to the Supreme Court. The applicant was

notified of the Supreme Court's decisions of 3 January 1989 to reject his

appeals in cassation.

      The Commission recalls that a State which institutes courts of

appeal or cassation is required to ensure that persons amenable to the

law shall enjoy when before these courts the fundamental guarantees

contained in Article 6 (Art. 6) of the Convention (Eur. Court H.R.,

Delcourt judgment of 6 May 1985, Series A no. 11, p. 14, para. 25).

      Having regard to the parties' submissions and the above-mentioned

jurisprudence, the Commission considers that the failure to provide the

applicant with a copy of the judgments of 22 September 1987 while his

appeal in cassation was pending raises issues of fact and law which can

only be resolved by an examination of the merits. This part of the

application cannot, therefore, be regarded as manifestly ill-founded

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

and must be declared admissible, no other grounds for inadmissibility

having been established.

      For these reasons, the Commission, by a majority,

      DECLARES ADMISSIBLE, without prejudging the merits of the

      case, the applicant's complaint that he did not receive copies

      of the Regional Court's judgments of 22 September 1987;

      DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber      President of the Second Chamber

        (K. ROGGE)                           (S. TRECHSEL)