Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13535/88

by Catharina Geertruida Maria VAN DUNGEN

against the Netherlands

The European Commission of Human Rights sitting in private on 7

April 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. 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 December 1987

by Catharina Geertruida Maria VAN DUNGEN against the Netherlands and

registered on 15 January 1988 under file No. 13535/88;

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 1953 and residing in

Amsterdam. Before the Commission the applicant is represented by Mr.

G.P. Hamer, a lawyer practising in Amsterdam.

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

summarised as follows.

On 18 November and 17 December 1983, when driving her car in

Amsterdam, the applicant was stopped by the police. Following her

consent thereto, she underwent an alcohol blood test on both occasions.

By letter of 27 December 1983 the Amsterdam Municipal Police

informed the applicant that the analysis of the blood sample taken on

18 November 1983 had shown the alcohol level in her blood to be 2.70

mg per ml and that in view of this high level an official report would

be drawn up for the punishable offence of driving under the influence

of alcohol within the meaning of Article 26 of the Road and Traffic Act

(Wegenverkeerswet) and that the report would be sent to the public

prosecutor. Article 26 of the Dutch Road and Traffic Act prohibits

driving a vehicle when the blood contains more than 0,50 mg alcohol per

ml blood.

On 26 April 1984 the public prosecutor issued a summons ordering

the applicant to appear before the Magistrate (Politierechter) in

Amsterdam on 30 May 1984 on three charges, namely driving a car on or

about 18 November 1983 with an alcohol level of 2.70 mg per ml in her

blood, at least more than 0,5 mg per ml, driving a car on or about 17

December 1983 with an alcohol level of 3.46 mg per ml in her blood, at

least more than 0,5 mg per ml, and driving a car on or about 17

December 1983 with a registration certificate (kentekenbewijs Deel III)

of another car.

The facts as set out in the first following paragraph are

disputed between the parties.

According to the Government, the summons was presented to the

applicant's verified home address on 4 May 1984. As the applicant was

not at home on that occasion, it was impossible to serve the summons

to her in person. A notification (kennisgeving) was left behind at the

applicant's home address, stating where she should collect the judicial

document from the public prosecutor. The Government contend that the

applicant failed to respond to the notification, whereas the applicant

claims that she never saw or received the notification.

In accordance with the applicable provisions under Dutch law, the

summons was served on 25 May 1984 by presenting it to a municipal civil

servant, especially appointed for these matters by the head of the

local authorities. The civil servant subsequently forwarded the

summons by mail to the applicant who states that she received it after

30 May 1984.

By decision of 30 May 1984 the Magistrate of Amsterdam convicted

the applicant in absentia for, inter alia, driving under the influence

of alcohol and sentenced her to two weeks' imprisonment and a

suspension of her driving licence for one year. This judgment was

served on the applicant in person on 3 October 1984.

On 8 October 1984 the applicant filed an appeal with the Court

of Appeal (Gerechtshof) of Amsterdam, invoking Article 6 para. 3 (b)

of the Convention.

Following a hearing on 3 March 1986, at which the applicant and

her legal counsel were present, the Court of Appeal in its judgment of

17 March 1986 rejected the applicant's complaint that the period of

time between the serving of the summons on 25 May 1984 and the hearing

before the Magistrate on 30 May 1984 was unreasonably short for a

proper preparation of her defence.

The Court of Appeal held, inter alia, that the summons was served

in accordance with Dutch law and that the applicant, who was informed

by letter of 27 December 1983 that the official police reports

concerning the applicant's breach of Article 26 of the Road and Traffic

Act would be sent to the public prosecutor, deprived herself of the

possibility to prepare her defence in time by failing to respond to the

notification left behind at her address. The Court considered that the

relevant Articles of the Code of Penal Procedure on indictments do not

contravene the invoked provision of the Convention.

The Court of Appeal, however, quashed the Magistrate's decisions

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

evidence and after having heard the parties, convicted and sentenced

the applicant to two weeks' imprisonment, a suspension for one year of

her driving licence and ordered the confiscation of the car

registration certificate.

The applicant subsequently filed an appeal in cassation to the

Supreme Court (Hoge Raad), complaining, inter alia, under Article 6

paras. 1 and 3 of the Convention that the Court of Appeal had unjustly

and insufficiently motivated the rejection of the applicant's argument

that the initial summons before the Magistrate was null and void as the

period of time between the serving of the summons on 25 May 1984 and

the hearing on 30 May 1984 was unreasonably short for a proper

preparation of her defence, thereby denying her a fair trial.

In its judgment of 16 June 1987 the Supreme Court rejected this

complaint. It upheld the Court of Appeal's consideration that the

relevant Articles of the Code of Penal Procedure on indictments do not

contravene the invoked provision of the Convention.

DOMESTIC LAW AND PRACTICE

The procedure for serving, inter alia, a summons was, at the time

the events in the present case took place, provided for in Article 588

of the Code of Penal Procedure, which reads, insofar as relevant, as

follows:

"Art. 588-1. De uitreiking geschiedt:

(...)

b. aan alle anderen: in persoon of, indien betekening niet

in persoon is toegelaten en het stuk wordt aangeboden in

Nederland aan hun woon- of verblijfplaats en zij daar niet

worden aangetroffen, aan degene die zich in het huis

bevindt en die zich bereid verklaart om het stuk onverwijld

aan hem voor wie het bestemd is te doen toekomen.

(...)

-3. Wordt in het geval bedoeld in het eerste lid, onder b,

niemand aangetroffen, of is niemand bereid het schrijven in

ontvangst te nemen, dan geschiedt, onder achterlating van

een kennisgeving, de uitreiking, tenzij de persoon voor wie

het bestemd is het voordien heeft afgehaald of doen

afhalen, aan het hoofd van het plaatselijk bestuur of een

door deze aangewezen ambtenaar. Deze doet het schrijven zo

mogelijk alsnog toekomen aan de persoon voor wie het

bestemd is, zonder dat van dit laatste echter in rechte zal

behoeven te blijken."

"Art. 588.-1 The serving takes place:

(...)

b. upon all others: in person or, in case the serving in

person is not permitted and the document is presented in

the Netherlands to their permanent or temporary domicile

and they are not found there, upon the person who finds

himself in the house and who declares himself willing to

pass the documents without delay on to the person whom the

document is intended for.

(...)

-3. If, in the case referred to in the first paragraph,

under b, no one is found, or no one is willing to accept

the document, then the serving, while leaving behind a

notification, is made upon the head of the local

authorities or a civil servant appointed by the latter,

unless the person for whom it (the document) is intended or

someone acting on his behalf has collected it in the

meantime. This person (the head of the local authorities or

the appointed civil servant), if possible, forwards the

document to the person for whom it is intended, however

without it being necessary that the latter be proven in

court."

Concerning the procedure before the Magistrate, Article 370 para.

1 of the Code of Penal Procedure stipulates:

"Art.370.1. De termijn van de dagvaarding is ten minste

drie dagen."

"Art. 370.1. The summons must be served giving at least

three days' notice."

The rules governing the procedure of the serving of judicial

documents have been slightly amended by the Act of Parliament of 24

April 1985. According to the present rules a summons is returned to

the authority which issued it, when it is impossible to serve it on the

accused in person, or on someone present at the home address of the

accused willing to pass it on to the accused without delay, and when

neither the accused nor someone else, authorised to act on his behalf,

has responded to the notification which has been left behind.

The serving of the summons then takes place by presenting the

summons to the Registrar of the Regional Court, before which or in

whose judiciary district the case will be heard or has been heard

previously. The Registrar will then forward the summons by normal mail

to the home address of the accused.

COMPLAINT

The applicant complains that she did not receive a fair hearing,

because she was not present at the trial before the Magistrate and in

particular that she did not have adequate time for the preparation of

her defence. She invokes Article 6 para. 1 and para. 3 (b) and (c) of

the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 December 1987 and registered

on 15 January 1988.

On 14 December 1989 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's observations were submitted on 22 February 1990

and the applicant's reply thereto on 26 March 1990.

On 26 August 1991 the respondent Government were requested to

submit relevant documents in support of the Government's observations.

The documents were submitted on 20 September 1991 and

subsequently communicated to the applicant.

THE LAW

The applicant complains that she did not receive a fair hearing

because she was not present at the trial before the Magistrate and in

particular that she did not have adequate time for the preparation of

her defence, even if the summons, forwarded by the municipal

authorities, would have reached her before the hearing on 30 May 1984.

The applicant invokes Article 6 para. 1 and para. 3 (b) and (c)

(Art. 6-1, 6-3-b, 6-3-c) of the Convention, which reads insofar as

relevant:

"1. In the determination of (...) any criminal charge

against him, everyone in entitled to a fair (...) hearing

(...) by a(n) (...) tribunal (...).

(...)

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;

c. to defend himself in person or through legal assistance

of his own choosing (...)."

The Government submit that the serving of the summons in first

instance to the applicant's duly verified home address took place in

accordance with the prescribed procedure under Dutch law, which is

meant to ensure as far as possible that a suspect does not remain

ignorant, through no fault of his own, of the fact that legal

proceedings have been instituted against him. The Government state

that in the present case the applicant's own actions caused her to have

too little time to prepare her defence. The Government note in this

respect that the applicant would have been able to deduce from the

letter of 27 December 1983 by the Municipal Police that criminal

proceedings might be instituted considering that the registered alcohol

level in her blood was well above the legal limit. The Government

furthermore submit that the applicant must have received the

notification as in the initial application the applicant stated that

"since the letter left at (applicant's home address) made no mention

of the fact that criminal proceedings would be instituted, nor did it

contain anything from which this might have been inferred" and that in

any event the Court of Appeal, after a new consideration of all the

facts and circumstances, heard the case once more and that in these and

the subsequent proceedings before the Supreme Court the applicant

availed herself of legal assistance for her defence.

The applicant in reply states that she could not deduce from the

letter of 27 December 1983 that a criminal case was to be brought, as

in the Netherlands the public prosecutor has discretionary power to

determine whether or not criminal proceedings will be initiated.

Furthermore, the applicant maintains her statement that she never

received the notification of 4 May 1984 and that the remark in the

initial application was made by the applicant's lawyer, who is well

acquainted with this type of document and knows that it cannot serve

as a basis for an assumption that a criminal case has been brought.

The applicant also submits that serving the summons to the municipal

civil servant on Friday 25 May 1984, though in accordance with the

statutory periods of notice, implied that the applicant would hardly

have been given two days' notice, viz. Monday 28 and Tuesday 29 May

1984 to prepare her case, if the municipal civil servant had forwarded

the summons immediately.

The Commission has first examined the applicant's complaint under

Article 6 para. 3 (b) and (c) (Art. 6-3-b, 6-3-c) of the Convention.

Insofar as the applicant complains that she could not defend

herself in the proceedings before the Magistrate, the Commission

recalls that the rights guaranteed by Article 6 (Art. 6) of the

Convention are indeed secured to any accused person, whether at liberty

or in custody. However, if an accused person is sentenced in absentia

without his express consent and is later able, on learning of the

sentence, to have the proceedings on the merits re-opened, the right

to a hearing and thus the concrete rights of the defence, have not been

weakened in a way that has the result of depriving such rights of any

practical effects (cf. No. 10291/83, Dec. 12.5.86, D.R. 47 p. 59).

The Commission considers that an issue could arise if it were

shown, in the circumstances of the case, that the accused, convicted

and sentenced in absentia, had at no stage been aware of the

proceedings against him and had thus been prevented from participating

in those proceedings. However, the Commission observes in the present

case that the applicant filed an appeal against the Magistrate's

judgment on 8 October 1984, which resulted in a full review of the

applicant's case by the Court of Appeal. During the Court of Appeal's

hearing of 3 March 1986, both the applicant and her legal

representative were present and were given the opportunity to defend

the applicant's case.

The Commission further observes that the applicant was also

represented in the subsequent proceedings before the Supreme Court.

In these circumstances the Commission considers that the

applicant had ample time to prepare her defence and to seek the

assistance of a legal counsel, which the applicant in fact has done.

Therefore the Commission is of the opinion that the present application

does not raise an issue under Article 6 para. 3 (b) and (c)

(Art. 6-3-b, 6-3-c).

As to the applicant's complaint under Article 6 para. 1

(Art. 6-1) of the Convention, the Commission recalls that the

relationship between paras. 1 and 3 of Article 6 (Art. 6-1, 6-3) is

that of the general to the particular. Article 6 (Art. 6) does not

define the notion of a fair trial in criminal cases. Paragraph 3 of

that Article lists certain specific rights which constitute essential

elements of that general notion. The term "minimum" clearly shows that

the list of rights in para. 3 is not exhaustive and that a trial could

well not fulfil the general conditions of a fair trial even if the

minimum rights guaranteed by para. 3 were respected (cf. Jespers v.

Belgium, Comm. Report 14.12.81, para. 54, D.R. 27 p. 86).

It therefore remains for the Commission to consider whether,

nevertheless, the applicant was not guaranteed a fair hearing within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

As pointed out above, as a result of the applicant's appeal, a

full review of the facts and evidence took place during the hearing

before the Court of Appeal on 3 March 1986, on which occasion both the

applicant and her legal counsel were present and were given an

opportunity to state the applicant's case and develop her points of

view. The Commission also notes that the applicant was represented in

the subsequent proceedings before the Supreme Court.

The Commission therefore considers that, in the present

circumstances, there is no indication that the applicant did not have

a fair hearing in the determination of the criminal charges against

her.

It follows that the application is manifestly ill-founded within

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

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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VAN DUNGEN v. THE NETHERLANDS

VAN DUNGEN v. THE NETHERLANDS

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