THIRD SECTION

DECISION

Application no . 21496/10 Franciscus VAN VELZEN against the Netherlands

The European Court of Human Rights ( Third Section), sitting on 17 May 2016 as a Chamber composed of:

Luis López Guerra, President, Helena Jäderblom, Helen Keller, Johannes Silvis, Branko Lubarda, Alena Poláčková, Georgios A. Serghides, judges,

and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 1 April 2010,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Franciscus van Velzen, is a Netherlands national, who was born in 1966 and lives in Delft. He is represented before the Court by Mr J.M. Lintz, a lawyer practising in The Hague.

A. The circumstances of the case

2. The relevant facts, as submitted by the applicant and apparent from information submitted by the Government at the request of the Judge Rapporteur (Rule 49 § 3 (a) of the Rules of Court), may be summarised as follows.

3. The applicant lives on a caravan site. He is not married.

4. On 3 March 2008 a post office official handed a summons addressed to the applicant to another inhabitant of the caravan site, one Ms D. The official record of delivery states that the summons was handed to “Ms D., wife ( echtgenote )”.

5. Ms D. lives together with the applicant ’ s brother, on the same caravan site but in a different caravan. Her postal address, which applies to the site as a whole, is the same as the applicant ’ s.

6. On 23 April 2008 the limited jurisdiction judge ( kantonrechter ) of Delft (a local dependency of the Regional Court ( rechtbank ) of The Hague whose jurisdiction includes minor offences ( overtredingen ) and small claims) convicted the applicant in absentia of “being the person in whose name a motor vehicle is registered for which a vehicle registration certificate has been issued, failing to subscribe to and maintain in force insurance in accordance with the Motor Vehicles (Third Party Liability Insurance) Act” ( als degene aan wie het kenteken is opgegeven voor een motorrijtuig waarvoor een kentekenbewijs is afgegeven niet een verzekering overeenkomstig de Wet aansprakelijkheidsverzekering motorrijtuigen sluiten en in stand houden ). The applicant w as ordered to pay a fine of 380 euros (EUR) or undergo seven days ’ detention in lieu.

7. The applicant appealed against the judgment on 28 May 2009 by setting out his grounds of appeal on a pre-printed form. The form states the following:

“I did not attend the hearing because:

[in handwriting] I did not know that the case was to be heard.

I would have liked to make the following submission:

[in handwriting] I do not even know which case it is.”

8. On 16 October 2009 the president of the Court of Appeal ( gerechtshof ) of The Hague gave a decision refusing the applicant leave to appeal. The decision was in the following terms:

“The President notes that the appellant did not appear at the first-instance hearing, although the summons was handed to a member of his household on 3 March 2008. The mere fact that the appellant has not made use of the opportunity offered for stating his defence does not justify a hearing on appeal. There is no appearance of any special circumstances that might justify offering him this possibility.

The President further notes that the appellant essentially wants nothing more than a rehearing of the case. An examination of the case based on the case file has not led the President to expect that a rehearing will lead to any other ruling than that given at first instance.

The President is not aware of any other reasons for which the interests of the proper administration of justice require the case to be heard in appeal.”

9. The judgment here in issue has not been executed; the Government have informed the Court that it will not be, pending the Court ’ s decision on the present application.

B. Relevant domestic law and practice

The Code of Criminal Procedure ( Wetboek van Strafvordering )

( a ) Trial in absentia

10. In its relevant part, Article 278 of the Code of Criminal Procedure provides as follows:

“1. The Regional Court shall determine whether the summons was validly delivered to the suspect who has failed to appear. If it is apparent that it has not been validly delivered, it shall declare the summons null and void. ...”

11. In its relevant parts, Article 588 of the Code of Criminal Procedure provides as follows:

“1. Delivery [sc. of a judicial notification] shall take place:

a. to the person who has been lawfully deprived of his liberty in the Netherlands in connection with the criminal proceedings to which the judicial notification relates and to the person who has been otherwise lawfully deprived of his liberty in the Netherlands in other cases determined by or pursuant to delegated legislation: in person;

b. to all others: in person or, if service otherwise than in person is allowed and the notification is presented in the Netherlands,

i. at the address where the addressee ( geadresseerde ) is registered as resident in the Personal Records Database ( basisadministratie persoonsgegevens ), or as the case may be,

ii. if the addressee is not registered as a resident in the Personal Records Database, at the permanent or temporary domicile ( woon- of verblijfplaats ) of the addressee, or as the case may be,

iii. if the addressee is not registered as a resident, to the Registrar of the Regional Court before which or within whose jurisdiction the case will be heard or was last heard.

2. ...

3. If, in the situation referred to in paragraph 1, sub-paragraph b, under i or ii,

a. the addressee is not found, delivery shall be to any person present at that address who declares that he is prepared to forward the document to the addressee without delay;

b. no one is found, delivery shall be to the addressee or a person authorised by the addressee [to take delivery of it] at the place mentioned in a written message that shall be left at the address mentioned in the notification. Delivery to a person so authorised by the addressee shall count as service in person;

c. no delivery has proved possible, the notification shall be returned to the authority that sent it. If it is found that the addressee was, on the day of attempted delivery and at least five days thereafter, registered in the Personal Records Database as resident at the address mentioned in the notification, the notification shall then be delivered to the Registrar of the Regional Court before which or within whose jurisdiction the case will be heard or was last heard. The Public Prosecution Service shall then send a copy of the notification to that address without delay, which act shall be noted in the official record of delivery ...”

( b ) The leave-to-appeal system

12. In its relevant part, Article 410a of the Code of Criminal Procedure provides as follows:

“1. If an appeal is possible and has been lodged against a judgment concerning only one or more minor offences or indictable offences ( misdrijven ) which, according to the statutory description, carry a sentence of imprisonment not exceeding four years, and no other sentence o r measure has been imposed than a fine not exceeding – or, if two or more fines have been imposed in a single judgment, not exceeding a combined maximum – of EUR 500, the appeal lodged shall only be heard and considered if, in the considered opinion of the President, such is required in the interests of the proper administration of justice. ...”

COMPLAINT

13. The applicant complains under Article 6 §§ 1 and 3 of the Convention that he was denied the right to defend himself in person or through legal assistance.

THE LAW

Alleged violation of Article 6 §§ 1 and 3 of the Convention

14. The applicant ’ s complaint is that he was convicted in absentia after having been kept in ignorance of the hearing of the limited jurisdiction judge. He relies on Article 6 §§ 1 and 3 of the Convention, which in its relevant parts provides as follows:

“1. In the determination of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

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;

(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 or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”

15. The applicant acknowledges that the failure to enable a suspect to take part in the hearing in his case owing to incorrect service of a judgment can be cured by an appeal. In his submission, however, the decision of the President of the Court of Appeal denied him that possibility.

16. The Court reiterates that it is not its task to act as an appeal court of “fourth instance” by calling into question the outcome of the domestic proceedings. The domestic courts are best placed to interpret and apply rules of substantive and procedural law (see, among many other authorities, Kemmache v. France (no. 3) , 24 November 1994, § 44, Series A no. 296 ‑ C; most recently, Portyanko v. Ukraine (dec.), no. 24686/12, 6 October 2015).

17. According to Article 588 § 3 (a) of the Code of Criminal Procedure, “[if] the addressee is not found, delivery shall be to any person present at that address who declares that he is prepared to forward the document to the addressee without delay” (see paragraph 11 above). Such delivery constitutes valid service of a judicial notification under domestic law.

18. The applicant does not deny that the summons was handed to Ms D., who was the cohabiting partner of the applicant ’ s brother and registered as a resident at the same postal address as he himself was.

19. The circumstances of the present case are distinct from those in cases where the failure to hear the applicant led the Court to the finding of a violation of Article 6 § 1, applying its general principles. In Yavuz v. Austria , no. 46549/99, § 49, 27 May 2004) there had not been any summons sent to the address of the applicant, whereas the judicial authority dealing with the case (the Independent Administrative Panel) had not verified that the applicant was aware of the date of the hearing in a situation in which counsel had specifically requested before the hearing that the applicant be heard in person. In those circumstances the Court found a violation of Article 6 § 1. In Somogyi v. Italy , no. 67972/01, § 66, ECHR 2004 ‑ IV, the applicant was sentenced to eight years ’ imprisonment, although the obligation of the judicial authorities to check whether the defendant ha d had the opportunity to apprise himself of the proceedings against him had not been fulfilled. In Sejdovic v. Italy [GC], no. 56581/00, §§ 81-88, ECHR 2006 ‑ II the applicant had been convicted and sentenced in absentia to fifteen years and eight months ’ imprisonment without having had the opportunity of presenting his defence before the Italian courts.

20. In the present case the summons for the hearing was duly served at the address of the applicant, which he shared with family members, one of whom, Ms. D., appears to have accepted personally the request to hand the notification to the applicant. However, it cannot be established whether or not Ms D. failed to ensure that the summons reached the applicant in time. It was found by the President of the Court of Appeal that the applicant had not made use of an opportunity offered to him to attend the hearing of the court.

21. The Court has allowed for the absence of an oral hearing in cases concerning offences of a minor nature ( Suhadolc v. Slovenia (dec.), 57655/08, 17 May 2011). The Convention leaves Contracting States wide discretion as regards the choice of the means calculated to ensure that their legal systems are in compliance with the requirements of Article 6. In the circumstances of the present case, which are characterised by the minor nature of the offence in issue and the pecuniary sanction imposed, the absence of an oral hearing on appeal is not in violation of Article 6 § 1. The Court finds that in these circumstances the President of the Court of Appeal was under no obligation to vouchsafe the applicant a hearing in appeal.

22. Accordingly, the application is manifestly ill-founded and must be rejected with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 June 2016 .

             Stephen Phillips Luis López Guerra Registrar President