Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13536/88

by A.H.

against the Netherlands

The European Commission of Human Rights sitting in private on 8

January 1992, the following members being present:

MM.C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs.G. H. THUNE

SirBasil HALL

MM.F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÃœGER, 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 3 December 1987

by A.H. against the Netherlands and registered on 15 January 1988 under

file No. 13536/88;

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 1958 and residing in

Amsterdam. He is a merchant. Before the Commission he is represented

by Mr. H. Loonstein, a lawyer practising in Amsterdam.

The facts as submitted by the parties may be summarised as

follows. Some of the facts are disputed between the parties.

On 5 March 1984, the National Police stopped the applicant for

having exceeded the maximum speed limit with approximately 60 km. In

his presence the police drew up an official report, which was

subsequently sent to the public prosecutor.

According to the Government, the public prosecutor issued on 10

June 1984 a summons, ordering the applicant to appear before the

District Court (Kantongerecht) of Utrecht on 23 August 1984 on the

charge of speeding.

On 16 July 1984 the summons was presented to the applicant's

verified home address. It could not be served to the applicant as

nobody was at home. A notification (kennisgeving) was left behind,

stating where he should collect the judicial document from the public

prosecutor. According to the Government the applicant failed to

respond to this notification. The applicant states never to have

received this notification. In accordance with the procedural rules

under Dutch law, on 3 August 1984 the summons was served by being

presented to a municipal civil servant at the Amsterdam Town Hall,

especially appointed for these matters by the head of the local

authorities.

On 23 August 1984 the District Court convicted the applicant in

absentia and sentenced him to a fine of 750 guilders and a suspension

of his driving licence for a period of 4 months with a probationary

period of two years.

On 4 October 1984 the applicant authorised in writing a civil

servant at the District Court's Registry to file an appeal on his

behalf. The appeal was lodged the same day.

Three unsuccessful attempts to serve the above judgment on the

applicant were made on respectively 19 October 1984, at which occasion

a notification was left behind, and on 3 and 6 December 1984 with a

notice (oproep) to appear at the Court House left behind on the latter

date. As the applicant responded to the notice, the District Court's

judgment was served on the applicant in person on 18 December 1984.

According to the Government the summons to appear before the

Regional Court (Arrondissementsrechtbank) on appeal on 20 June 1985 was

unsuccessfully presented to the applicant's verified home address on

20 May 1985. A notice (oproep) stating that the applicant should

present himself at the Amsterdam Court House was left behind, to which

the applicant failed to respond. The applicant states never to have

received this notice.

On 22 May 1985 the summons was served by being presented to the

special appointed municipal civil servant at the Amsterdam Town Hall.

On 4 July 1985 the Regional Court quashed the District Court's

judgment, convicted the applicant in absentia and sentenced him to a

750 guilders fine and a suspension of his driving licence for a period

of 4 months with a probationary period of one year. According to the

Government, the applicant was placed on the list of wanted persons

after four unsuccessful attempts on respectively 27 August, 18

September, 10 October and 27 November 1985 to serve the Regional

Court's judgment on the applicant. On each of those occasions a notice

was left behind, to which the applicant failed to respond.

According to the applicant he was informed for the first time

about the Regional Court's judgment on 5 July 1986 by the police, when

passing through customs at Schiphol Airport.

By letter of 11 July 1986 the applicant's lawyer sent a written

authority signed by the applicant to the Registrar of the Regional

Court, authorising the latter to file an appeal in cassation, on the

applicant's behalf, which appeal was lodged on 14 July 1986. The

Supreme Court (Hoge Raad) rejected the appeal on 9 June 1987. The

Supreme Court held, inter alia, that there was no indication that the

Public Prosecution had failed in its due care concerning the timely

serving of the summons in first instance and on appeal. The Supreme

Court considered that the procedure followed was in accordance with the

applicable legal provisions, whereas no indication could be derived

from the documents concerning the applicant's trial of the existence

of facts and circumstances which might have harmed the applicant's

interests. These interests would have been the avoidance of a

situation, where the applicant was absent at his trial due to his

unawareness of the date and time of the court's handling of his case.

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. to 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, to the one who finds himself

in the house and who declares himself willing to pass the

documents without delay on to 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, takes place to the head of the local

authorities or to a civil servant appointed by the latter,

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

has collected it himself or someone acting on his behalf

has done so. 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 District Court Article 398

of the Code of Penal Procedure insofar as relevant, stipulates:

"Art.398. Op het rechtsgeding bij het kantongerecht zijn

(...) van overeenkomstige toepassing, behoudens de

navolgende uitzonderingen:

1. De termijn van dagvaarding is tenminste drie dagen

(...)."

"Art. 398. To the proceedings before the District Court

equally apply (...), save for the following exceptions:

1. The summons must be served giving at least three days

notice (...)."

Concerning the procedure before the Regional Court Article 265

para. 1 of the Code of Penal Procedure stipulates, insofar as relevant:

"Art.265.1. Op straffe van nietigheid moet tussen de dag

waarop de dagvaarding aan de verdachte is betekend, en die

der terchtzitting een termijn van ten minste tien dagen

(...) verlopen."

"Art. 265.1. On penalty of nullity a period of at least ten

days must have passed between the day on which the summons

has been served on the suspect and the day of the court

hearing (...)."

The rules governing the procedure of the serving of judicial

documents have been slightly changed 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,

have responded to the notification which is 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 he did not receive a fair hearing

within the meaning of Article 6 of the Convention, as he was not

properly informed of the nature and cause of the charges held against

him, and because he was not present at the hearings of his case in

first instance and on appeal, as the summonses to appear at these

hearings were not served on him in person.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 December 1987 and registered

on 15 January 1988.

On 14 December 1989 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them pursuant to Rule 42 para. 2 (b) of its Rules of Procedure (former

version) to submit written observations on its admissibility and

merits.

The respondent Government's observations were submitted on 2

March 1990 and the reply thereto by the applicant on 11 May 1990.

On 25 April 1991 the respondent Government was requested to

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

These documents were submitted on 14 May 1991 and communicated

to the applicant for comments.

The applicant's comments were submitted on 12 June 1991.

THE LAW

The applicant complains that he did not have a fair hearing as

he was not properly informed of the nature and cause of the charges

held against him, and because he was not present at the hearings of his

case in first instance and on appeal, as the summonses to appear were

not served on him in person. The applicant invokes Article 6 (Art. 6)

of the Convention, which, insofar as relevant, reads:

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

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

(...) by a (...) tribunal established by law. (...)

3. Everyone charged with a criminal offence has the

following minimum rights:

(a) to be informed promptly, (...) in detail, of the nature

and cause of the accusation against him; (...)

(c) to defend himself in person (...)."

The Government contend that there has been no violation of the

principle of fair hearing The judgments in first instance and on

appeal were given in absentia, as the applicant failed to appear in

court, whereas the summonses to appear at the respective hearings were

served with due care and in accordance with the procedural requirements

under Dutch law. The Government consider that since the applicant had

lodged an appeal against the judgment of the District Court, he could

have expected a hearing before the Regional Court and could have made

inquiries on the date of this hearing. Furthermore by disregarding the

notifications left behind at his home address he ran the risk that his

case would be heard in his absence.

The applicant submits that there is no duty, statutory or

otherwise, to ascertain for oneself the date and time of hearings and

that the procedural provisions concerning indictments were changed as

they did not provide sufficient guarantees that the summons would reach

an accused timely.

The Commission has first examined the applicant's complaint under

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

The Commission notes that on 5 March 1984 the applicant was

stopped by the police for having exceeded the maximum speed limit. On

that occasion, in his presence, an official report was drawn up against

the applicant for speeding, which in the present case can be considered

as meeting the requirements of Article 6 para. 3 (a) (Art. 6-3-a) of

the Convention.

The Commission recalls that the rights guaranteed by Article 6

(Art. 6) are indeed secured to any accused person, whether at liberty,

in custody or on the run and that, 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 effect (cf. No. 10291/83, Dec. 12.5.86, D.R. 47 p.

59).

The Commission considers that an issue of this kind would 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 the proceedings. However this question does not arise in the

present case, as the Commission notes that, on 4 October 1984, the

applicant filed an appeal against the judgment in first instance and

that, on 14 July 1986, he lodged an appeal in cassation against the

judgment on appeal.

The Commission therefore considers that the requirements of

Article 6 para. 3 (c) (Art. 6-3-c) have been met in the present case.

Having failed to discover a prima facie infringement of Article

6 para. 3 (a) and (c) (Art. 6-3-a, 6-3-c), it 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. The Commission recalls that the

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

Convention 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).

The Commission observes in this respect that the applicant was

not present at the hearings before the District Court and before the

Regional Court and that consequently he had no opportunity to state his

case and develop his points of view. According to the applicant, he

was never informed beforehand about the precise date of these hearings.

The Commission recalls that the object and purpose of Article 6

(Art. 6) taken as a whole show that a person "charged with a criminal

offence" is entitled to take part in the hearing of his case and that

the Contracting States must exercise diligence in order to ensure that

the rights guaranteed by this provision are enjoyed in an effective

manner (cf. Eur. Court H.R., Colozza judgment of 12 February 1985,

Series A, no. 89 paras. 27 and 28). The Commission further recalls

that an accused must be informed with sufficient notice about the date

and place of the trial (cf. No. 8231/78, Dec. 6.3.82, D.R. 28 p. 5).

The Commission notes that on 4 October 1984 the applicant filed

an appeal against the District Court's judgment of 14 February 1984.

After having examined the documents as submitted by the parties,

the Commission notes that the summons to appear before the District

Court on 23 August 1984 was unsuccessfully presented at the applicant's

verified home address, that after three unsuccessful attempts the

judgment of the District Court was served on the applicant in person

on 18 December 1984, that the summons to appear before the Regional

Court on 20 June 1985, following the applicant's appeal of 4 October

1984, was unsuccesfully presented at the applicant's home address on

20 May 1985, that the judgment of the Regional Court was presented

unsuccessfully on 27 August, 18 September, 10 October and 27 November

1985 to the applicant's home address, and that on these occasions

either a notification or a notice was left behind at the applicant's

address, which the applicant claims to have never received.

The Commission considers that in these circumstances the

applicant must have been aware of the criminal proceedings against him

and that he could expect a hearing of his case.

In view of the authorities' attempts to inform the applicant of

the hearings of his case and the applicant's apparent lack of diligence

in his case, the Commission is of the opinion that the authorities

cannot be held responsible for the applicant's absence at the hearings

of his case.

In the light of the parties' submissions, the Commission finds

no indication that the applicant's trial was otherwise unfair.

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, unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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H. v. THE NETHERLANDS

H. v. THE NETHERLANDS

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