Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12128/86

by Theodora Kathleen DIJKSTRA

against the Netherlands

The European Commission of Human Rights sitting in private

on 8 April 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

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. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

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 30 November

1985 by Theodora Kathleen DIJKSTRA against the Netherlands and

registered on 29 April 1986 under file No. 12128/86;

Having regard to the Government's observations dated 20 January 1989

and the applicants' replies dated 6 April 1989;

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 as submitted by the parties may be summarised as

follows.

The applicant, born in 1945, is of Dutch nationality and lives

in Maastricht, the Netherlands.

On 20 October 1983, the applicant was stopped for having

committed a traffic offence in Willemstad, Curaçao, in the Netherlands

Antilles. As she disagreed with the accusation, the policeman handed

out to her a summons to appear in court on 2 December 1983.

On 23 November 1983, the applicant wrote to the Registry of

the Regional Court (Gerecht in Eerste Aanleg) of Curaçao, requesting

an adjournment of the case in view of her imminent hospitalisation,

which was likely to prevent her from being present at the hearing.

The Public Prosecution Department informed the applicant on

28 November 1983 that her request would be submitted to the judge and

that, should the judge comply with her request, she would be notified

of the new date of the hearing. On the same date, an officer in the

Public Prosecution Department annexed a short note to the case-file,

requesting the judge to adjourn the case.

However, on 2 December 1983 the Regional Court nevertheless

gave judgment in the presence of an officer of the Public Prosecution

Department. The applicant was convicted by default and sentenced to a

fine of 50 N.A. guilders, or, as a subsidiary punishment, to two days

imprisonment.

It appears that the applicant only learned of her conviction

on 25 May 1984, when she received a notification thereof. On 1 June

1984, the applicant, after payment of 25 N.A. guilders registry fees,

lodged an objection (verzet) against the judgment with the Regional

Court of Curaçao.

The Court on 15 June 1984 declared the objection inadmissible,

since, contrary to Section 213 d juncto 239 g of the Netherlands

Antilles' Code of Penal Procedure, it had not been introduced within

fourteen days after the judgment of 2 December 1983. The Court

considered that an accused, who has requested an adjournment of the

hearing, might reasonably be expected to inform himself of the

judicial decision on his request. Furthermore, the Court considered

that the judge who convicted the applicant was under no obligation to

grant the requested adjournment: Article 6 paras. 1 and 3 (c) of the

Convention merely obliged him to weigh the interest of an accused in

attending the hearing in person against other interests of a proper

administration of criminal justice, such as the determination of a

criminal charge within a reasonable time.

The Court finally considered that the Public Prosecution

Department had made no promise to the applicant that her case would be

adjourned, but, indeed, had reserved itself on this issue.

On 26 June 1984, the applicant appealed to the Court of Appeal

of the Netherlands Antilles (Hof van Justitie van de Nederlandse

Antillen). On 11 September 1984, the Court upheld the judgment of

15 June 1984. It agreed with the applicant that the court of first

instance should have granted, under the circumstances of the case, the

requested adjournment. However, the applicant had no reason to assume

that her request would be granted. Since she had made her request in

writing and not, e.g. by means of a representative, at the hearing

itself, it was for her to bear the risk that her request would not

reach the competent authority or would not be given sufficient

consideration. It had not been shown that it was impossible for the

applicant or a representative to inform herself after the hearing of

the outcome of the proceedings.

The applicant's appeal to the Supreme Court of the Netherlands

(Hoge Raad) was rejected on 11 June 1985. The Supreme Court's

reasoning was similar to that of the Regional Court and of the Court

of Appeal.

COMPLAINTS

The applicant complains that the summons which was handed out

to her on 20 October 1983 did not satisfy the requirement of Article 6

para. 3 (a) of the Convention that everyone charged with a criminal

offence shall be informed in detail of the nature and cause of the

accusation against him.

The applicant further alleges that the Public Prosecution

Department intercepted her letter to the registry of the Curaçao

Regional Court as a result of which the judge was unable to properly

consider her request for an adjournment. Consequently, there was,

according to the applicant, no opportunity for her to defend herself

in person. She invokes Article 6 para. 3 (c) of the Convention in

this respect.

As a third complaint, the applicant states that the courts

have wrongly assumed that the fact that the time-limit for lodging an

objection against her conviction by default had lapsed by the time she

filed her objection was to be attributed to herself. In support of

this, the applicant contends that she was, at the time, certain that

the European Convention obliged the judge to comply with her request,

the reason for which was properly founded and easily verifiable, and

which would have caused no unreasonable delay in the proceedings. She

further contends that she could reasonably have believed that the

Public Prosecution Department had transferred her motivated request to

the judge, as this was promised to her, and that she had no reason,

let alone obligation, to inform herself after the hearing of

2 December 1983 whether the judge had indeed adjourned the case. The

applicant concludes that the Regional Court should have declared her

objection admissible instead of rejecting it for being out of time.

In doing the latter, the court has, according to the applicant,

violated Article 6 para. 3 (c) of the Convention, since she could not

defend herself in person.

Finally, the applicant alleges that the obligation to pay the

sum of 25 N.A. guilders for registry fees when lodging an objection

against a conviction by default constitutes a violation of her right

of access to a court, guaranteed by Article 6 para. 1 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 30 November 1985 and

registered on 29 April 1986.

On 11 October 1988, the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and the merits of the

application.

The Government's observations were received by letter dated

20 January 1989 and the applicant's observations were dated 6 April

1989.THE LAW

1. The applicant has first complained that the summons which was

handed out to her on 20 October 1983 did not satisfy the requirement

of Article 6 para. 3 (a) (Art. 6-3-a) of the Convention that everyone

charged with a criminal charge shall be informed in detail of the

nature and cause of the accusation against him. She has also

complained that the registry fees she had to pay in order to lodge an

objection against her conviction by default violated her right of

access to a court, guaranteed by Article 6 para. 1 (Art. 6-1) of the

Convention.

Article 6 (Art. 6) states insofar as relevant:

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

against him, everyone is entitled to a fair and public

hearing ... by an independent and impartial tribunal

established by law.

...

3. Everyone charged with a criminal offence has the

following minimum rights:

(a) to be informed promptly, in a language which he

understands and in detail, of the nature and cause of the

accusation against him;

...

(c) 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;..."

Under Article 26 (Art. 26) of the Convention the Commission

may only deal with a matter after all domestic remedies have been

exhausted according to the generally recognised rules of internationl

law.

The Commission has first examined the applicant's complaints

about the summons and the registry fees.

The Commission recalls that the mere fact that the applicant

has submitted her case to the various competent courts does not of

itself constitute compliance with the rule of exhaustion of domestic

remedies. It is also required that the substance of any complaint

made before the Commission should have been raised during the

proceedings concerned. In this respect the Commission refers to its

constant jurisprudence (see e.g. No. 10307/83, Dec. 6.3.84, D.R. 37 p.

113).

In the present case the applicant did not raise either in form

or in substance, in the proceedings before the Netherlands Antilles'

courts or the Supreme Court of the Netherlands the complaints which

she now makes before the Commission. Moreover, an examination of the

case 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 raising her complaints in

the proceedings referred to.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies within the meaning

of Article 26 (Art. 26) of the Convention and that her application

must in this respect be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

2. The applicant has further complained that she has had no

opportunity to defend herself in person in the criminal proceedings

before the Curaçao Regional Court. She invokes Article 6 para. 3 (c)

(Art. 6-3-c) of the Convention.

The applicant argues in particular that she had a right to

have her case adjourned since her absence from the hearing was due to

specific circumstances beyond her control. Moreover, the Public

Prosecution Department had promised her to submit her request to the

Court which gave her the impression that she had proceeded correctly.

The Government observe that the applicant could have arranged

for a representative to represent her at the hearing.

The applicant further submits that the Public Prosecution

Department was responsible for her objection being dismissed for non

respect of the time limits. Since the Public Prosecutor, and not she,

should have ascertained the Court's decision, she cannot be blamed for

lodging an objection beyond the time-limits.

The Government contend that, since the applicant knew that

criminal proceedings had been instituted, it was her responsibility to

find out what decision had been taken. Moreover, the applicant should

not have assumed from the Public Prosecutor's reply that the requested

adjournment would be granted, as such a decision can only be taken by

the Court.

The Commission, having regard to the parties' submissions in

this respect considers that this complaint raises complex issues of

fact and law which can only be resolved by an examination of the

merits. This complaint cannot, therefore, be declared 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 ADMISSIBLE, without prejudging

the merits of the case, the applicant's complaint that

the proceedings before the Curaçao Regional Court took place

in her absence;

unanimously DECLARES INADMISSIBLE the remainder of

the application.

Secretary to the Commission President to the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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DIJKSTRA v. THE NETHERLANDS

DIJKSTRA v. THE NETHERLANDS

LEXI