Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18091/91

by F.W.

against the Netherlands

The European Commission of Human Rights sitting in private on 11

May 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, 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 4 March 1991 by

F.W. against the Netherlands and registered on 16 April 1991 under file

No. 18091/91;

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 facts of the case as submitted by the applicant are as

follows.

The applicant is a Dutch citizen, born in 1949 and residing in

Amsterdam. He is represented by Mr. G.P. Hamer, a lawyer in Amsterdam.

On or about 29 September 1988, the applicant was arrested as

suspected of theft. On 6 October 1988, the police judge

(politierechter) of Amsterdam found him guilty of one theft and

acquitted him of another theft with which he had also been charged.

The judge sentenced him to two months' imprisonment. On the same day,

the applicant was released from detention on remand.

Both the applicant and the public prosecutor appealed to the

Court of Appeal (Gerechtshof) of Amsterdam. On 20 November 1989, the

Court of Appeal quashed the judgment of the police judge, found the

applicant guilty of both thefts and sentenced him to five months'

imprisonment from which should be deducted the time he had spent in

detention on remand.

On the applicant's behalf, his lawyer appealed to the Supreme

Court (Hoge Raad). The lawyer also informed the registry of the

Supreme Court that he was the applicant's lawyer, although this

information was not strictly necessary, since he had already

represented the applicant before both the police judge and the Court

of Appeal.

As a reply, the registry of the Supreme Court informed the lawyer

that the applicant's case had not yet arrived at the Court.

Subsequently, the lawyer was not informed either of the introduction

of the case or of the date of the hearing in the case.

As from 13 June 1990, the applicant was detained on remand in

connection with another criminal case. During his detention a letter

was sent to his home address requesting him to appear at the hearing

before the Supreme Court. Because of his involuntary absence, he did

not receive this letter, and it was not until about 15 February 1991

that he was informed that he would not be released at that time,

because he had to serve a sentence of five months' imprisonment as the

Supreme Court had rejected his appeal on 9 October 1990.

COMPLAINTS

The applicant complains of

a) a violation of Article 5 of the Convention in that his detention

had not been ordered "in accordance with a procedure prescribed by

law",

b) violations of his right to a fair and public trial and his rights

under Article 6 para. 3 (a) - (c) of the Convention to be informed of

the accusation, to have adequate time and facilities for the

preparation of his defence and to defend himself in person or through

legal assistance.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 March 1991 and registered on

16 April 1991.

On 4 July 1991 the Commission decided to give notice of the

application to the Netherlands Government and to invite them to submit

observations in writing on the admissibility and merits of the

application.

The Government submitted their observations on 28 October 1991

and the applicant submitted his observations in reply on 3 January

1992.THE LAW

The applicant complains of violations of Articles 5 and 6

(Art. 5, 6) of the Convention in that, on the one hand, his detention

had not been ordered "in accordance with a procedure prescribed by law"

and, on the other hand, his right to a fair trial and his right to

defend himself had not been respected. He bases his complaints on the

fact that neither his lawyer nor himself were informed of the date of

the hearing before the Supreme Court.

Article 5 para. 1 (Art. 5-1) of the Convention provides, inter

alia, that:

"No one shall be deprived of his liberty save in the

following cases and in accordance with a procedure

prescribed by law:

a. the lawful detention of a person after conviction by a

competent court".

Article 6 para. 1 (Art. 6-1) of the Convention provides, inter

alia, that

"In the determination ... of any criminal charge against

him, everyone is entitled to a fair ... hearing ... by an

independent and impartial tribunal".

Para. 3 of the same Article gives everyone charged with a

criminal charge certain minimum rights, inter alia, the right 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 (sub-para. c).

The Government confirm that the applicant's lawyer, by letter of

26 March 1990, informed the Supreme Corut that he was representing the

applicant. However, as a result of a clerical error, the file in the

applicant's case could not be found, and it was therefore wrongly

concluded that the file had not yet arrived at the Supreme Court and

the lawyer was so informed. Administrative measures have been taken

to prevent similar incidents in the future. As a result of the

mistake, the lawyer was not informed of the date of the hearing before

the Supreme Court.

The applicant notes that his lawyer indicated on two occasions

that he was representing the applicant, namely at the hearing before

the Court of Appeal and when he appealed to the Supreme Court. It

would therefore have been logical that he would be informed of the date

on which the case would be heard by the Supreme Court.

The Government further state that attempts were made to inform

the applicant in person of the date of the hearing. A message was left

at his permanent address, but as no one presented himself to receive

the communication about the hearing, it was returned to the Advocate

General at the Supreme Court. After he had checked that the address

was correct, he forwarded the communication to the registrar at the

Regional Court of The Hague who sent it by ordinary mail to the

applicant's address. In order to establish whether the applicant was

in detention, the Advocate General also sent a request to the Central

Research Information Service, which keeps computerised information

about detained persons. However, it takes a few days before a person

is registered under this system, and in the present case the request

arrived at a time when the applicant's detention had not yet been

registered. As a result, information about the hearing was not handed

over to the applicant at the house of detention, but there was in Dutch

law no requirement that this should be done in a situation where he was

detained in a different case. On the contrary, the applicant should

have seen to it that, not being available at his normal address, he

would nevertheless receive his mail.

The applicant states, in this regard, that he had intended to

submit written observations to the Supreme Court and that he also

wished to be informed of the date of the hearing before that Court.

For this reason, he had instructed his lawyer to get in touch with the

Supreme Court, and the lawyer had done so. It was incomprehensible

that the Central Research Information Service had not been able to give

information about his detention, since he had been detained since 13

June 1990 and the declaration that it had not been possible to

communicate the letter at the applicant's home address is dated 10 July

1990. The Government further submit that the applicant's right to a

fair trial under Article 6 para. 1 (Art. 6-1) and his right to defend

himself under Article 6 para. 3 (Art. 6-3) of the Convention have been

respected. The Government point out that at the hearing before the

Supreme Court the presence of the accused is much less important than

in the lower courts. The accused may be present but may not personally

defend himself or be heard. He may submit his observations in writing,

although this is normally done by his lawyer, and it is the lawyer who

may also orally present the grounds for cassation at the hearing. In

the present case, the lawyer had not submitted any written statement,

but this did not mean that the applicant's right to a fair trial had

been violated, particularly in view of the Supreme Court's duty to make

an examination ex officio of the legality of the judgment appealed

against. Moreover, the applicant had been present, together with his

lawyer, at the hearings both before the police judge and in the Court

of Appeal.

The applicant replies that, as his sentence had been increased

by the Court of Appeal, it was important for him to attack the Court

of Appeal's judgment. However, he had been prevented from presenting,

in person or through his lawyer, his views to the Supreme Court, and

the Supreme Court's examination ex officio is obviously much more

limited than an examination of specific matters drawn to the Court's

attention by the appellant.

The Commission considers that the applicant's complaints about

the failure to inform him and his lawyer of the time of the hearing

before the Supreme Court raise questions, which in particular concern

the observance of Article 6 (Art. 6) of the Convention and which are

of such complexity that the determination requires an examination of

the merits. The application is therefore not manifestly ill-founded

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

and no other grounds for declaring it inadmissible have been

established.

For these reasons, the Commission, unanimously

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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W. v. THE NETHERLANDS

W. v. THE NETHERLANDS

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