Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14861/89

by Radjinderpersad Roy LALA

against the Netherlands

The European Commission of Human Rights sitting in private on 12

October 1992, the following members being present:

MM. S. TRECHSEL, Acting President

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. K. ROGGE, Deputy to the 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 8 March 1989 by

Radjinderpersad Roy LALA against the Netherlands and registered on 3

April 1989 under file No. 14861/89;

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 Dutch citizen, born in 1961, and residing at

The Hague, the Netherlands. 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.

By summons of 17 September 1986 the applicant was ordered to

appear before the Magistrate (politierechter) of the Regional Court

(Arrondissementsrechtbank) of The Hague on charges of fraud concerning

social security benefits.

On 19 November 1986 the Magistrate convicted the applicant in

absentia and sentenced him to four weeks' imprisonment, of which two

weeks suspended with three years' probation. The Magistrate added as

a special condition that the applicant should repay the unlawfully

received benefits.

The applicant filed an appeal against this decision with the

Court of Appeal (Gerechtshof) of The Hague and by summons of 13 July

1987 was ordered to appear before the Court of Appeal on 7 September

1987. At the hearing of 7 September 1987, immediately following the

calling of the case, the applicant's lawyer informed the court that the

applicant would not appear at the hearing, as, for financial reasons,

he had failed to comply with a prior sentence, i.e. the payment of a

fine, and now feared to be arrested in order to serve the alternatively

imposed prison sentence.

The Court of Appeal subsequently declared the applicant in

default of appearance and started its examination of the case.

On 21 September 1987 the Court of Appeal quashed the Magistrate's

decision on a technical point and, after a new examination of the facts

and evidence, inter alia the applicant's full confession of 24 April

1986 before the police, convicted the applicant in absentia for having

committed fraud and sentenced him to two weeks' imprisonment.

The applicant's appeal in cassation was rejected by the Supreme

Court (Hoge Raad) on 27 September 1988. The Supreme Court found that

the minutes of the hearing before the Court of Appeal did not indicate

that the applicant's lawyer had submitted a request to the Court of

Appeal to conduct the applicant's defence in the latter's absence, and

it held that neither the lawyer's presence nor the information the

lawyer provided on the applicant's absence at the Court of Appeal's

hearing of 7 September 1987 could be considered as a request to be

allowed to conduct the applicant's defence in his absence.

The Supreme Court concluded that under these circumstances the

Court of Appeal was under no obligation to allow the applicant's lawyer

to conduct the defence at the hearing before the Court.

RELEVANT DOMESTIC LAW

The Netherlands Code on Criminal Procedure 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 EC 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 1980, N.J. 1980 nr. 246 and

judgment of 16 February 1988, N.J. 1988 nr. 794) and where a lawyer has

submitted 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).

Concerning the second category the Supreme Court has held that

fear of arrest is no compelling reason (Hoge Raad, judgment of 24

November 1987, nr. 81 798).

COMPLAINTS

The applicant complains under Article 6 para. 3 (c) of the

Convention that at the hearing before the Court of Appeal his lawyer

was not allowed to conduct his defence in his absence.

He also complains that he did not receive a fair hearing before

the Court of Appeal. He complains in particular that as he could not

conduct his defence he was placed at a substantial disadvantage vis-à-

vis the Public Prosecutor, which according to the applicant violates

the principle of equality of arms as guaranteed by Article 6 para. 1

of the Convention.

Finally, the applicant complains under Article 6 para. 2 of the

Convention that his conviction was exclusively based on evidence

submitted by the prosecution.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 March 1989 and registered on

3 April 1989.

On 7 October 1991 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 16 December 1991.

The applicant's observations in reply were submitted on 20 April 1992.

THE LAW

The applicant complains that in the determination of the criminal

charges against him he did not receive a fair hearing and that the

principles of equality of arms and presumption of innocence have been

violated 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 placed

at a substantial disadvantage vis-à-vis the public prosecutor and that

his conviction was exclusively based on evidence submitted by the

prosecutor.

The applicant invokes Article 6 paras. 1, 2 and 3 (c)

(Art. 6-1 ; 6-2 ; 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 (...).

2. Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to 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 subscribe to the Supreme Court's finding that, as

the applicant's lawyer failed to inform the Court of Appeal that he was

present in the capacity of defence counsel, the applicant is not

entitled retroactively to invoke his right to be defended. The

Government are therefore of the opinion that the application should be

rejected for non-exhaustion of domestic remedies or, alternatively for

being manifestly ill-founded.

The applicant submits in reply that it is obvious that the aim

of his lawyer's presence at the hearing before the Court of Appeal was

to conduct his defence. The applicant maintains that the Court of

Appeal, having regard to the reasons for his absence given by his

lawyer, declared him in default of appearance and unjustly did not

allow his lawyer to conduct his defence.

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 hearing 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 declared in default

of appearance in spite of the presence of his lawyer and that he was

convicted without having had the opportunity to defend himself in

person or through the assistance of a lawyer.

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, by a majority

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Deputy to the Secretary Acting President

to the Commission of the Commission

(K. ROGGE) (S. TRECHSEL)

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LALA v. THE NETHERLANDS

LALA v. THE NETHERLANDS

LEXI