FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33258/96 by Robby R. HOLDER against the Netherlands

The European Court of Human Rights (First Section) , sitting on 10 October 2000 as a Chamber composed of

Mrs E. Palm, President , Mrs W. Thomassen, Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mr J. Casadevall, Mr R. Maruste, judges , and Mr M. O’Boyle, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 29 July 1996 and registered on 1 October 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Netherlands national born in 1956 and, as far as the Court is aware, resident in Groningen.  He is represented by Ms T.B. Trotman, a lawyer practising in The Hague.

A. The circumstances of the case

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

On 14 May 1993, a person was assaulted in Groningen. At some unspecified later time the applicant was charged with this offence and summoned to appear on 8 April 1994 before the single-judge chamber ( politierechter ) of the Regional Court ( Arrondissementsrechtbank ) of Groningen.

On 15 February 1994, pursuant to Article 588 of the Code of Criminal Procedure ( Wetboek van Strafvordering ), an attempt was made to serve the summons on the applicant at his place of residence as it was then known to the authorities, i.e. the address at P. street in Groningen where he was registered according to the Registry Office ( Bevolkingsregister ) of Groningen. As nobody was found at that address and as nobody reacted to the notification left behind stating that a judicial letter had arrived and containing information where and until which date this letter could be collected, pursuant to Article 588 § 4 of the Code of Criminal Procedure the summons was served on 24 March 1994 at the Registry of the Regional Court of Groningen after it had been verified that the applicant’s registered address on 15 February 1994 and for five days thereafter was in fact the P. street address, the address where the attempt to serve the summons on him was made. On the same day, the summons was sent to that address by regular mail.

Also on 24 March 1994 the applicant’s registered address was changed to an address at J. Avenue.

By judgment of 8 April 1994, following proceedings in absentia as the applicant had failed to appear, the single-judge chamber of the Regional Court convicted the applicant of assault and sentenced him to a fine of 750 NLG (Netherlands guilders) or, alternatively, eight days' imprisonment.  The official records of the hearing and of the oral delivery of the judgment state that the applicant was then resident at J. Avenue in Groningen.

On 2 May 1994, this judgment was served on the applicant in person.  The applicant lodged an appeal with the Court of Appeal ( Gerechtshof ) of Leeuwarden the same day. In his notification of the lodging of his appeal, the applicant indicated that he was resident at J. Avenue in Groningen.

On 9 November 1994, the applicant was arrested in on suspicion of drugs offences unrelated to the present case and placed in detention on remand in the police station. He was transferred to the remand centre in Groningen on 15 November 1994. On 21 November 1994, he was transferred to the prison in Hoogeveen. Until 13 October 1995, the date on which a judgment of the Court of Appeal of Leeuwarden of 23 May 1995 sentencing the applicant to six years' imprisonment for other offences obtained the force of res iudicata , the applicant was considered to be in detention on remand.

According to a notarial deed dated 14 December 1994, the house on J. Avenue was sold empty and free of any occupants.  The applicant states that by 23 December 1994 the house had been abandoned by all its occupants and suggests, without providing proof, that it might have been boarded up.

On 23 December 1994, an attempt was made to serve the summons to appear before the Court of Appeal in connection with the applicant's appeal against his conviction of 8 April 1994 on the applicant at the address at J. Avenue in Groningen. As nobody was found at that address and as nobody reacted to the notification left behind stating that a judicial letter had arrived and containing information where and until which date this letter could be collected, the Procurator General at the Leeuwarden Court of Appeal on 9 January 1995 wrote to the Registry Office inquiring after the applicant’s registered address.  After verification of the address, the appeal summons was served on 16 January 1995 at the Registry of the Court of Appeal. On the same day, the summons was sent to the applicant's verified official address at J. Avenue by regular mail.

The Court of Appeal held a hearing on 10 February 1995.  The applicant did not appear.  The Court of Appeal proceeded to hear the case in the applicant’s absence.  Contained in the Court of Appeal’s case-file was an extract from his criminal record dated 14 December 1994 from which it appeared that he was suspected of importing drugs and taking part in a criminal organisation.

The applicant’s trial on the drugs charges took place before the Regional Court of Groningen, apparently also on 10 February 1995.

On 23 February 1995 the Court of Appeal quashed the judgment of 8 April 1994 for technical reasons unrelated to the present application, convicted the applicant of assault and sentenced him to a fine of NLG 750 or, alternatively, eight days' imprisonment.

The very same day the Regional Court of Groningen convicted the applicant of the drugs charges and sentenced him to six years’ imprisonment.  The applicant had been in detention continuously since 9 November 1994 in connection with these other charges.

The applicant lodged an appeal on point of law with the Supreme Court ( Hoge Raad ).

By judgment of 30 January 1996, the Supreme Court rejected the applicant's appeal on points of law. Insofar as the applicant had complained under Article 6 §§ 1 and 3 (c) of the Convention that his defence rights had been violated in that, at the time the appeal summons was served, he was detained and was unaware of the date and time of the hearing on appeal whereas he had equally been unaware of the hearing in first instance, the Supreme Court held that both the summons for the first-instance hearing and the appeal summons had been served in accordance with the relevant provisions of the Code of Criminal Procedure.

As to the applicant's submissions that he had been detained at the time of the appeal summons, the Supreme Court further held that only in a situation where a person was not formally registered and thus had no known address in civil society, the judicial authorities had to indicate that they had made investigations as to whether and, if so, where a suspect was detained at the time of the serving of a summons, since in this situation the detention facility concerned was this person's known domicile within the meaning of Article 588 § 1, sub b under 3°. In the applicant's case the appeal summons had been sent to his formal address. The Supreme Court added that, where a person lodged an appeal and wished to be heard in adversarial proceedings, it could reasonably be expected that he would take those measures which were normal in civil society in order to prevent the possibility that the summons presented at or sent to the address indicated by him might not reach him. The Supreme Court did not find that the Court of Appeal had acted in violation of Article 6 of the Convention by declaring the applicant in default of appearance and proceeding in absentia .

B. Relevant domestic law and practice

The rules governing the procedure of the serving of judicial notifications are set out in Articles 585 - 590 of the Code of Criminal Procedure.

According to Article 585 § 3 of the Code of Criminal Procedure summonses and notifications ( dagvaardingen en aanzeggingen ) must be served ( betekening ). Pursuant to Article 587 § 1 of the Code of Criminal Procedure, a serving takes place by the delivery ( uitreiking ) of a judicial notification ( gerechtelijke mededeling ) by the postal services.

At the relevant time Article 588 of the Code of Criminal Procedure, insofar as relevant, provided as follows:

"1. Service [sc. lic. of a judicial notification, such as a summons] shall take place:

a. upon 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: in person;

b. upon all others: in person or, in case service otherwise than in person is allowed and the notification is presented in the Netherlands, at their permanent or temporary domicile and they are not found there, to the person present in the house and who states that he is prepared to forward the document to the person for whom it is intended without delay.  The expression “permanent or temporary domicile” shall also include the address at which the person for whom the notification is intended, was entered in the register of addresses ( bevolkingsregister ) on the day on which the notification was presented and for up to five days  thereafter.

2 If, in the case referred to in the first paragraph under b., no one is found, the notification shall be presented to the person for whom it is intended, or another person authorised by them, at the place stated in a communication which shall be left at the address mentioned in the notification.  This communication shall also refer to the provisions of the fourth paragraph of this Article.  The notification shall be deemed to have been served in person if it has been presented to another person who has been authorised in writing [to receive it].

3. If it has proved impossible to effect the notification in accordance with the preceding paragraphs, the notification shall be returned to the authority that sent it.

4. If it appears that the person for whom the notification is intended was entered in the register of addresses on the day on which the notification was presented and up to five days  thereafter, the document shall subsequently be  presented to the Registrar of the Regional Court before which or within whose jurisdiction the case will be heard or was last heard.  The Registrar shall then send the notification without delay by post as a normal letter to that address and make mention of that fact on the official record of notification …

5. …

6. …"

At the relevant time Article 590 of the Code of Criminal Procedure, insofar as relevant, provided as follows:

"1. The service is null and void in all cases where the delivery has not taken place in accordance with the conditions set out in Articles 588 §§ 1 and 3, and 589.

2. ...”

On 1 October 1994 a third paragraph was added to Article 590.  It provided:

“3. Where the addressee is registered as resident in the basic personal data administration, whereas at the trial it appears that he resides in fact at another address, the judge may order the suspect who has not appeared to be called up."

Under Article 399 § 1 of the Code of Criminal Procedure, an accused who has been convicted in absentia in a final judgment ( einduitspraak ) by the first instance court may file an objection ( verzet ). Such an objection entitles the accused to a full retrial by the same court (Article 403 of the Code of Criminal Procedure). An objection may not be filed by an accused who has the opportunity to appeal to a higher court with jurisdiction as to both fact and law (Article 399 § 2 of the Code of Criminal Procedure). It follows from Article 399 § 1 of the Code of Criminal Procedure that no objection may be filed against a judgment in absentia given on appeal.

There is a data base, known as Verwijs Index Personen Strafrechtshandhaving (Referral Index of Persons for Maintaining Criminal Law) or VIPS, which has been operational since 1994.  It stores the particulars of detainees held in a penal institution for adults.  The particulars of detained psychiatric patients, persons placed at the Government’s disposal ( terbeschikkingstelling, “TBS” ), persons held in prison hospitals, police cells or juvenile prisons are not stored in VIPS.  This means that the particulars of persons detained on remand are stored in VIPS only if they are detained in a penal institution for adults – in other words, in a prison, as distinct from a police station or a remand centre.  The prisoner’s information is entered by the authorities of the respective prison.

COMPLAINT

The applicant complains under Article 6 §§ 1 and 3 (c) of the Convention that he was harmed in his defence rights in that the judicial authorities fell short of their obligation under the Convention to secure that he was informed of the hearings of his case and thus provide him with the opportunity to be present at the hearings and defend himself.

THE LAW

Article 6 of the Convention, in so far as it is relevant, provides as follows:

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

2. …

3. Everyone charged with a criminal offence has the following minimum rights:

(a) …

(b) …

(c) to defend himself in person …

(d) …

(e) …”

1. The Government points out in the first place that when the summons for the first-instance hearing was delivered at the registry of the Regional Court, on 24 March 1994, the applicant was still registered at the old address in the P. Street and was not in detention.  It was therefore not the fault of the Public Prosecution Service that the summons never reached the applicant.

As regards the summons for the appeal hearing, the Government recalled that it was served at the applicant’s new address, as it appeared from the official registers, which was also the address given by the applicant when lodging his appeal and at which the judgment of the single-judge chamber of the Regional Court had been served without any problem.  In these circumstances it was understandable that the public prosecution service had not stopped to inquire whether the applicant might be detained.

Echoing the judgment of the Supreme Court, the Government further expressed the opinion that anyone lodging an appeal had a responsibility of his own to ensure that a summons presented at an address he had himself supplied reached him.

The applicant noted that as of 24 March 1994, the day on which the registry of the Regional Court sent the summons to the applicant by mail, the applicant’s registered address had been on J. Avenue.  It was unclear why the registry had not sent the summons to the new address.  Furthermore, as appeared from the official record of its hearing, the single-judge chamber of the Regional Court had apparently been well aware of the applicant’s new address on J. Avenue but had failed to have him called to the hearing.

As regards the service of the summons of the appeal hearing, the applicant suggested that the authorities might reasonably have been aware that the house on J. Avenue had by then been abandoned, given that according to the notarial deed of 14 December 1994 it had been sold empty.  More importantly, the Court of Appeal had at its disposal an extract of the applicant’s criminal record, also dated 14 December 1994, from which it appeared that he was suspected of crimes so serious that the Court of Appeal might reasonably have been expected to undertake an investigation into his whereabouts.

Finally, the applicant expressed the opinion that a person lawfully deprived of his liberty might reasonably expect the authorities to be aware of this fact and to be able to ascertain his place of detention.

Having regard to the parties’ submissions and to its case-law, the Court considers that the applicant’s complaints raise complex questions of fact and of law which require an examination of the merits. They cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Michael O’Boyle Elisabeth Palm Registrar President