Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16737/90

by S.P.

against the Netherlands

The European Commission of Human Rights sitting in private on 11

Janury 1993, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

Mr. M. de SALVIA, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 April 1990 by

S.P. against the Netherlands and registered on 18 June 1990 under file

No. 16737/90;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Mauritian national, born in 1947 and currently

residing in Quatre Bornes, Mauritius. Before the Commission he is

represented by Mr. V. Kraal, a lawyer practising in Amsterdam.

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

summarised as follows.

On 27 December 1985 the applicant was arrested at Schiphol

airport when entering the Netherlands, as about 20 kilogrammes of

heroin and methaqualon had been found in his luggage.

The applicant was primarily charged with, either intentional or

unintentional, importation of heroin into the Netherlands and,

alternatively, with either intentional or unintentional possession of

heroin.

On 21 August 1986 the Regional Court (Arrondissementsrechtbank)

of Haarlem, after hearing the applicant, convicted him of unintentional

importation of heroin into the Netherlands, sentenced him to six

months' imprisonment with deduction of the time spent in custody,

lifted the order for his detention on remand and ordered his immediate

release. The applicant was subsequently expelled from the Netherlands.

Both the public prosecutor and the applicant filed an appeal

against this judgment.

At the hearing of 10 February 1987, the Court of Appeal

(Gerechtshof) of Amsterdam declared the applicant in default of

appearance and started the examination of the case.

The applicant's lawyer requested the Court's permission to

address the Court in order to conduct the applicant's defence, as, in

view of his place of residence, the applicant was unable to appear at

the hearing. The Court rejected this request, considering that no

compelling reasons (dringende redenen) for the applicant's absence had

become apparent, and continued its examination of the case.

On 20 November 1987 the Court of Appeal resumed the proceedings.

In view of the Court's different composition, the Court fully

recommenced its examination of the case. At the beginning of the

hearing the applicant's lawyer requested permission to represent

(vertegenwoordigen) the applicant within the meaning of Article 270 of

the Netherlands Code of Criminal Procedure (Wetboek van Strafvordering)

in respect of the alternative charge of possession of heroin. The

Court rejected the request, considering that it had neither been stated

nor appeared that the applicant had authorised the lawyer to represent

him and as, in any event, it would first examine the principal charge

of importation of heroin for which representation within the meaning

of Article 270 of the Code of Criminal Procedure is not allowed, this

being a criminal offence punishable by a prison sentence.

Following an adjournment, the Court of Appeal resumed its hearing

on 22 January 1988, when Mr. Kraal submitted a written authorisation

to represent the applicant. The Court, however, again rejected the

request for representation as it would first consider the principal

charge for which representation is not allowed.

By judgment of 5 February 1988 the Court of Appeal convicted the

applicant in absentia of intentional importation of heroin into the

Netherlands and sentenced him to nine years' imprisonment with

deduction of the time spent in custody.

The applicant's subsequent appeal in cassation was rejected by

the Supreme Court (Hoge Raad) on 24 October 1989. In respect of the

applicant's complaint that his lawyer's request of 10 February 1987 had

been unjustly rejected the Supreme Court held that, as the Court of

Appeal had recommenced its examination of the applicant's appeal on 20

November 1987 due to its changed composition, the rejection of this

request could not entail the nullity of the judgment of 5 February 1988

which was the result of this new examination. In respect of the

complaint that Mr. Kraal's request to represent the applicant within

the meaning of Article 270 of the Code of Criminal Procedure had been

unjustly rejected, the Supreme Court considered that, as the first

charge to be heard was the principal charge, which is punishable by a

prison sentence, the Court of Appeal's decision to reject the request

for representation was justified and well-founded.

COMPLAINT

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

Convention that at the hearings before the 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 as he was convicted without having had the

opportunity to defend himself.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 April 1990 and registered

on 18 June 1990.

On 9 November 1990 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

The Government submitted their observations on 31 January 1991.

The applicant's observations in reply were submitted on 17 May 1991.

THE LAW

The applicant complains that in the determination of the criminal

charges against him he did not receive a fair trial as the Court of

Appeal did not allow his lawyer to conduct the defence in his absence.

He complains that as a result he was convicted without having had the

opportunity to defend himself.

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 subscribe to the Supreme Court's finding that

representation within the meaning of Article 270 of the Code of

Criminal Procedure was not possible under Dutch law since the offence

at issue was punishable by a prison sentence. The Government add that

the applicant's lawyer did not argue that compelling reasons prevented

the applicant from attending his trial before the Court of Appeal and

that no such compelling reasons had appeared. The Government are of

the opinion that they did not place any impediment in the applicant's

way preventing him to attend his trial in the Netherlands.

The applicant submits that the distance between an accused's

place of residence and the place in which the court sits may very well

be a compelling reason preventing an accused's appearance before the

court and consequently a reason to allow an accused to defend himself

through the assistance of a lawyer.

The applicant is of the opinion that, considering that he resides

in Mauritius, whereas the trial took place in Amsterdam, his lawyer

should have been given the opportunity to conduct his defence on his

behalf.

The Commission recalls that the Court has held on several

occasions that, although this is not expressly mentioned in Article 6

para. 1 (Art. 6-1) of the Convention, the object and purpose of the

Article taken as a whole show that a person charged with a criminal

offence is entitled to take part in the proceedings against him and

that Contracting States must exercise diligence in ensuring the

effective enjoyment of the rights guaranteed under Article 6 (Art. 6)

of the Convention (cf. Eur. Court H.R., T. v. Italy judgment of 12

October 1992, to be published in Series A no. 245-C, paras. 26 and 29).

The Commission notes that the applicant was convicted without

having had the opportunity to defend himself in person or through the

assistance of a lawyer, despite his lawyer's presence and repeatedly

expressed willingness to conduct the applicant's defence at the

hearings before the Court of Appeal.

The Commission, having regard to the parties' submissions,

considers that the application raises issues of fact and law which can

only be resolved by an examination of the merits. The application can,

therefore, not be declared 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.

Deputy Secretary to the Commission President of the Commission

(M. de Salvia) (C.A. Nørgaard)

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S.P. v. THE NETHERLANDS

S.P. v. THE NETHERLANDS

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