Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12865/87

by Jean Helena Jacobus NICOL

against the Netherlands

The European Commission of Human Rights sitting in private on 6

December 1991, the following members being present:

MM.C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

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

A.V. ALMEIDA RIBEIRO

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 30 January 1987

by Jean Helena Jacobus NICOL against the Netherlands and registered on

16 April 1987 under file No. 12865/87;

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 1944, and is residing

in Klimmen within the municipality of Voerendaal, the Netherlands. He

is working as a parole officer.

The facts, as submitted by the parties, may be summarised as

follows.

Some of the facts, as set out below, are disputed between the

parties.

On 27 May 1983 an official report (proces-verbaal) was drawn up

against the applicant for a parking offence. The applicant informed

the police verbally on 5 August 1983 that he refused the proposed

settlement out of court by paying the customary fine of 35 guilders and

that he wanted the case to come before the court.

On 27 December 1983 the Public Prosecutor issued a summons

(dagvaarding) ordering the applicant to appear at a hearing before the

District Court (Kantongerecht) in Sittard on 14 February 1984.

According to the Government, it was impossible to serve this

summons on the applicant in person on 13 January 1984, when presented

at the applicant's home address, as he was not at home. Therefore, a

notification from the Public Prosecutor's Office (kennisgeving) was

left at his home address, where the applicant resides since April 1976

and which address had been verified at the municipality of Voerendaal,

indicating where he could collect the judicial document from the Public

Prosecutor. The summons was again unsuccessfully presented to the

applicant's home address on 27 January 1984 and a further notification

was left behind.

The applicant failed to react to both notifications. In

accordance with the provisions of the Code of Penal Procedure (Article

588 para. 3), on 9 February 1984 the summons was served on the official

of the municipality of Voerendaal especially designated for these

matters by the head of the local authorities.

On 14 February 1984 the District Court convicted the applicant

in absentia and sentenced him to payment of a 60 guilders fine or in

case of non-payment two days detention.

According to the applicant, he never received these notifications

and the summons to appear before the District Court on 14 February 1984

was received by him on 15 February 1984 by way of a letter sent by

ordinary mail by the Municipal Authorities (gemeentebestuur) of

Voerendaal. He requested the Registry of the District Court to inform

him of the matter and learnt that he had been convicted in absentia.

On 8 March 1984 the applicant appealed to the Regional Court

(Arrondissementrechtbank) of Maastricht. He also requested to be

permitted to consult the file on his case, but this was refused.

According to the Government, on 18 April 1984 the Public

Prosecutor issued a summons ordering the applicant to appear at a

hearing before the Regional Court in Maastricht on 20 March 1985.

On 5 February 1985 it was impossible to serve this summons on the

applicant in person at his home address. Again a notification from the

Public Prosecutor's Office, after verification of the applicant's

address at the municipality of Voerendaal, indicating where he could

collect the judicial document, was left at the applicant's home

address. As the applicant again failed to react to the notification,

on 22 February 1985 this summons was also served on the official from

the municipality of Voerendaal.

According to the applicant, he never received the summons nor the

notification concerning the hearing before the Regional Court.

On 3 April 1985 the Regional Court, also in proceedings in

absentia, quashed the decision of the District Court on formal grounds,

convicted the applicant and sentenced him to payment of a 60 guilders

fine or in case of non-payment two days detention.

According to the Government, the Regional Court's judgment was

served on the applicant in person at his home address on 2 June 1985.

According to the applicant, he discovered some time later, when

he received by normal mail a giro credit slip from the Public

Prosecutor requesting him to pay 60 guilders on the basis of a judgment

by the Regional Court of Maastricht of 3 April 1985, that apparently

a judgment on appeal had been given.

On 14 June 1985 the applicant appealed to the Supreme Court (Hoge

Raad).

On 15 April 1986 the applicant received a letter from the

Attorney-General (Procureur-Generaal) to the Supreme Court by which he

was informed that the hearing in his case would take place on 29 August

1986. He was furthermore informed that he was not allowed to defend

himself in person at the hearing but only through counsel, but that he

could submit written grounds for cassation, although only on points of

law and not on facts.

The applicant submitted to the Supreme Court that the Regional

Court had not examined whether and, if so, how the indictments had been

served on him and that the Regional Court had not given reasons for the

proceedings to be held in absentia. In its judgment of 9 September

1986 the Supreme Court rejected the appeal. It held, inter alia, that

the file did not contain any indication that should have induced the

Regional Court to examine the validity of the indictment since the

notification of the indictment had taken place in accordance with the

provisions of Dutch law as they were applicable at that time.

Furthermore, the Regional Court was not obliged, under Dutch law, to

give reasons for proceedings to be held in absentia, as the judge just

establishes the fact that the accused is not present, that the

regulations concerning the serving of the summons have been complied

with and that no facts or circumstances have appeared requiring an

adjournment of the hearing.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 30 January 1987 and registered

on 16 April 1987.

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 of the Rules of Procedure (former

version) to submit observations on its admissibility and merits, in

respect of the complaints under Article 6 para. 1 of the Convention

concerning the fairness of the applicant's criminal proceedings.

The respondent Government's observations were submitted on 28

February 1990 and the applicant's reply thereto was submitted on 29

April 1990.

On 25 April 1991 the parties were invited to submit additional

documentation. The applicant submitted the additional documentation

on 20 May 1991 and the respondent Government submitted the additional

documentation on 12 June 1991.

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 read, 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 if they are

not found there, to the person who finds himself in the

house and who declares to be willing to pass the document

without delay on to the person for whom the document is

intended. [...]

-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 him, unless

the document has been collected by the person for whom it

is intended or by someone acting on his behalf. This

person [the head of the local authorities or the appointed

civil servant] forwards the document, if possible, to the

person for whom it is intended, however without it being

necessary, to prove the forwarding of the document in

court."

Concerning the procedure before the District Court Article 398

of the Code of Penal Procedure stipulates:

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

[...] van overeenkomstige toepassing, behoudens de

navolgende uizonderingen: 1.De termijn van dagvaarding is

tenminste drie dagen [...]."

"Art. 398. On 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 terechtzitting 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 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, who is willing to pass it on to the accused without delay and

when neither the accused nor someone 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 judicial 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.

COMPLAINTS

1. The applicant complains that he did not receive a fair hearing,

because he was not present at the hearings of his case in first

instance and on appeal. In particular he complains that he was not

informed promptly of the nature and cause of the accusation against

him, that he did not have adequate time and facilities for the

preparation of his defence and that he could not defend himself in

person or through counsel. He invokes Article 6 paras. 1 and 3 (a),

(b) and (c) of the Convention.

2. He also complains that he was not allowed to look into his file

at the registry of the Regional Court contrary to Article 6 para. 3 (b)

of the Convention.

3. Furthermore, the applicant complains that he could not defend

himself in person at the hearing of the Supreme Court. He invokes

Article 6 para. 3 (c) of the Convention.

4. Finally, he complains that before the Supreme Court he could only

appeal on points of law. He invokes Article 6 para. 1 of the

Convention.

THE LAW

1. The applicant complains that he did not receive a fair hearing,

as he was not present at the hearings of his case in first instance and

on appeal. He complains in particular that he was not informed

promptly of the nature and cause of the accusation against him, that

he did not have adequate time and facilities for the preparation of his

defence and that he could not defend himself in person or through

counsel. He invokes Article 6 paras. 1 and 3 (a), (b) and (c)

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

as relevant, as follows:

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

against him, everyone is entitled to a fair and public

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;

(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 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 two summonses to appear at the respective hearings

were served in accordance with Dutch law.

The Government further submit that the applicant was well aware

that his case would be heard before the District Court at any time

after August 1983 as he himself wanted his case to come to court and

later, following the appeal the applicant lodged himself, before the

Regional Court. The Government conclude that the applicant chose to

ignore all notifications and therefore ran the risk of his case being

heard in absentia.

The Commission has first examined the applicant's complaints

under Article 6 paras. 3 (a), (b) and (c) (Art. 6-3-a, 6-3-b, 6-3-c)

of the Convention.

Article 6 para. 3 (a), (b) and (c) (Art. 6-3-a, 6-3-b, 6-3-c)

respectively guarantee a person charged with a criminal offence the

right "to be informed promptly [...] and in detail, of the nature and

cause of the accusation against him", "to have adequate time and

facilities for the preparation of his defence" and "to defend himself

in person or through legal assistance of his own choosing".

The Commission notes that on 27 May 1983 an official report was

drawn up against the applicant for a parking offence. The applicant

subsequently informed the police on 5 August 1983 that he refused to

pay the customary fine of 35 guilders as he wanted his case to come to

court.

In these circumstances, the Commission concludes that the

applicant was promptly informed in detail of the nature and cause of

the accusation against him, that he must have anticipated the trial,

and that he had ample time to prepare his case and to consult a lawyer

if he so wished.

In view of the above, the Commission fails to find an appearance

of an infringement of the applicant's rights under Article 6 para. 3

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

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) 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 might 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 the applicant was not guaranteed a fair hearing within the

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

The Commission observes in this respect that the applicant was

not present at the hearings before the District Court and 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 the applicant informed the authorities

on 5 August 1983 that he refused to pay the customary fine and wanted

his case to come to court and that on 8 March 1984 the applicant filed

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

After having examined the parties' submissions, the Commission

notes that the summons to appear before the District Court on 14

February 1984 was unsuccessfully presented at the applicant's verified

home address on 13 and 27 January 1984, that the summons to appear

before the Regional Court on 20 March 1985 was unsuccessfully presented

at the applicant's verified home address on 5 February 1985 and that

on each of these occasions a formal notification [kennisgeving] was

left behind at the applicant's home address, stating where he could

collect the judicial document that had arrived for him, which three

notifications the applicant claims never to have 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 this part of the application is manifestly

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

Convention.

2. The applicant also complains under Article 6 para. 3 (b)

(Art. 6-3-b) of the Convention that he was not allowed to consult his

file at the registry of the Regional Court.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of this provision as, under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law.

In the present case the applicant has not shown that he has filed

an objection against the refusal to grant him access to the file on his

case within the meaning of Article 32 of the Dutch Code of Penal

Procedure and has, therefore, not exhausted the remedies available to

him under Dutch law. Moreover, an examination of the case as it has

been submitted does not disclose the existence of any special

circumstances which might have absolved the applicant, according to the

generally recognised rules of international law, from exhausting the

domestic remedies at his disposal.

It follows that this complaint must be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

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

(Art. 6-3-c) of the Convention that he could not defend himself in

person at the hearing before the Supreme Court.

Article 6 para. 3 (c) (Art. 6-3-c) provides that:

"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 Commission notes that it was possible for the applicant to

state his case and develop his points of view before the Supreme Court

by making written submissions, and that he availed himself of this

possibility.

The Commission is of the opinion that the issues presented by the

applicant before the Supreme Court did not necessarily call for oral

submissions by the applicant in person in addition to the written

submissions and material already before the Supreme Court. If,

however, additional oral submissions were to be considered

indispensable, the applicant could have sought the assistance of a

lawyer, whether or not under the Dutch Legal Aid Act, in order to

represent him before the Supreme Court. However, the applicant chose

not to do so.

It follows that this complaint is manifestly ill-founded within

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

4. Finally, the applicant complains that he could only appeal to the

Supreme Court on points of law. He invokes Article 6 para. 1

(Art. 6-1) of the Convention which reads insofar as relevant:

"1. In the determination [...] of any criminal charge

against him, everyone is entitled to a fair and public

hearing [...] by a [...] tribunal established by law."

The Commission recalls its established case-law according to

which Article 6 (Art. 6) of the Convention is applicable to proceedings

in cassation (cf. No. 10938/84, Dec. 9.12.86, D.R. 50 p. 98). However,

the Commission also recalls that if a High Contracting Party makes

provisions for an appeal it is entitled to lay down the provisions by

which this appeal shall be governed and fix the conditions under which

it may be brought (cf. No. 10515/83, Dec. 2.10.84, D.R. 40 p. 258).

Therefore the fact that the applicant's appeal was of limited scope in

that only points of law could be invoked does not imply any breach of

the rights guaranteed by Article 6 para. 1 (Art. 6-1) of the

Convention.

It follows that this complaint must be rejected as being

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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NICOL v. THE NETHERLANDS

NICOL v. THE NETHERLANDS

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