FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38055/97 by Gerson G.C. ELIAZER against the Netherlands

The European Court of Human Rights ( First Section ) sitting on 8 February 2000 as a Chamber composed of

Mrs E. Palm, President , Mr J. Casadevall, Mr L. Ferrari Bravo, Mr R. Türmen, Mr C. Bîrsan, Mrs W. Thomassen , Mr R. Maruste, judges ,

and Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 July 1997 by Gerson G.C. Eliazer against the Netherlands and registered on 6 October 1997 under file no. 38055/97;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 7 January 1999 and the observations in reply submitted by the applicant on 25 February 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1968, and at the time of the introduction of the application was detained in Curaçao (the Netherlands Antilles ). He is represented by Mr G. Spong, a lawyer practising in The Hague .

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

By summons of 5 June 1995, the applicant was ordered to appear on 14 June 1995 before the First Instance Court ( Gerecht in Eerste Aanleg ) of the Netherlands Antilles on charges of possession of about one kilogram of cocaine.

By judgment of 28 June 1995, the First Instance Court acquitted the applicant. The prosecution filed an appeal with the Joint Court of Justice ( Gemeenschappelijk Hof van Justitie ) of the Netherlands Antilles and Aruba .

As the applicant had failed to appear before the Joint Court of Justice at its first hearing on appeal on 2 January 1996, he was declared in default of appearance ( verstek ). The Joint Court of Justice adjourned the proceedings until 9 January 1996. The applicant also failed to appear on 9 January 1996. On that date, the Joint Court of Justice resumed the proceedings and examined the appeal. The applicant’s lawyer attended this hearing and conducted the applicant’s defence.

By judgment of 23 January 1996, following proceedings in absentia , the Joint Court of Justice quashed the judgment of 28 June 1995, convicted the applicant of having violated Article 3 § 1 of the 1960 Opium Act of the Netherlands Antilles ( Opiumlandsverordening 1960) and sentenced him to two years’ imprisonment. In accordance with the Cassation Regulation for the Netherlands Antilles ( Cassatieregeling voor de Nederlandse Antillen ), the applicant filed an appeal in cassation with the Netherlands Supreme Court ( Hoge Raad ), which appeal is limited to points of law and procedural conformity.

In its judgment of 27 May 1997, the Supreme Court noted that, pursuant to Article 10 § 2 of the Cassation Regulation for the Netherlands Antilles, no appeal in cassation lies against judgments pronounced following proceedings in absentia .

It rejected the argument advanced by the defence, that the appeal in cassation should nevertheless be declared admissible on the ground that this provision of the Cassation Regulation is contrary to Article 14 of the Convention and Article 26 of the International Covenant on Civil and Political Rights in that it constitutes an unjustified difference in treatment between persons tried in adversarial proceedings and persons tried in proceedings in absentia . The Supreme Court noted that, according to Article 239 of the Code of Criminal Procedure of the Netherlands Antilles ( Wetboek van Strafvordering van de Nederlandse Antillen ), a person convicted on appeal following proceedings in absentia may file an objection ( verzet ) against this conviction.

If the accused then appears before the trial court, the case will, pursuant to Article 240 § 2 of the Code of Criminal Procedure of the Netherlands Antilles, be fully retried by the same court in the course of adversarial proceedings and an appeal in cassation lies against the resulting judgment. If however, the accused fails to appear following the filing of an objection, the objection will be declared defunct and, consequently, the judgment handed down in absentia may be executed. The Supreme Court held that the fact that, pursuant to Article 240 of the Code of Criminal Procedure of the Netherlands Antilles , no appeal in cassation lies against a decision declaring an objection defunct does not constitute a unjustifiable difference in treatment.

The Supreme Court recalled that, according to the Explanatory Memorandum to the Cassation Regulation for the Netherlands Antilles and Aruba ( Memorie van Toelichting , Kamerstukken II, Zitting 1959-1960 - 5959 (R 1945), nr. 3, p. 5), Article 10 of this Regulation was based on the following considerations:

"that, given the great distance between the seat of the Supreme Court and the Netherlands Antilles, it is not to be recommended to provide for an appeal in cassation in Antillean cases in all cases, where this is possible for cases in the Netherlands ... In general the suspect himself will be to blame that his case has been dealt with in absentia . In these circumstances, there is no cause to attach more weight to his interests than to the inconveniences which are attached to proceedings in cassation in respect of overseas cases."

According to the Supreme Court this indicates that there is and why, in the opinion of the legislator of the Netherlands Antilles, a justified difference between the legal system in the Netherlands and the legal system in the Netherlands Antilles . It held that it would go beyond its judicial tasks if it would disregard this statutory provision.

Noting that a new Code of Criminal Procedure of the Netherlands Antilles had recently been established and would enter into force, albeit without the change of the Cassation Regulation as suggested in the applicant’s appeal in cassation, the Supreme Court considered that there are various solutions for a possible change to Article 10 § 2 of the Cassation Regulation. However, it held that this falls within the competence of the legislator after agreement has been reached between the Governments of the countries concerned as to the correct choice from these solutions.

The Supreme Court concluded that no appeal in cassation lies against the judgment of 23 January 1996. However, on the basis of the contents of a statement made on 29 January 1996 on behalf of the applicant, the Supreme Court interpreted the applicant’s appeal in cassation as being an objection against his conviction in absentia and ordered the transmission of the applicant’s case-file to the Joint Court of Justice for a determination of the applicant’s objection.

COMPLAINTS

The applicant complains that the arrangement as regards access to the Supreme Court under Article 10 of the Cassation Regulation for the Netherlands Antilles and Aruba is contrary to Article 6 §§ 1 and 3 (c) and Article 14 of the Convention. He complains in particular that the difference in treatment as regards access to the Supreme Court between accused who were present at their trial and accused who were not has no objective justification. He further complains that through the conversion of his appeal in cassation into an objection, a situation has now been created that, in order to obtain an examination of his case by the Supreme Court, he is obliged to appear at the hearing on this objection before the Joint Court of Justice where he risks to be taken into detention.

PROCEEDINGS BEFORE THE COURT

The application was introduced on 9 July 1997 and registered on 6 October 1997. As the authority for the applicant’s representation by Mr Spong did not contain the particulars of the applicant’s representative, the form was returned to Mr Spong on 6 October 1997 with the request to ensure the authority form was duly completed.

On 21 October 1998, the Commission decided to communicate the application to the respondent Government.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

On 4 December 1998, the Registry of the Court reminded Mr Spong that still no duly completed authority for the applicant’s representation had been submitted. On 7 December 1998, Mr Spong submitted the completed authority form.

The Government’s written observations were submitted on 7 January 1999. The applicant replied on 25 February 1999.

THE LAW

The applicant complains that the arrangement as regards access to the Supreme Court under Article 10 of the Cassation Regulation for the Netherlands Antilles and Aruba is contrary to Article 6 §§ 1 and 3 (c) and Article 14 of the Convention.

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

"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 ...”

Article 14 of the Convention reads:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

The Government submit that the applicant has not exhausted domestic remedies as required by Article 35 § 1 of the Convention in that, in accordance with Article 239 of the Code of Criminal Proceedings of the Netherlands Antilles it was possible for him to file an objection to the judgment of 23 January 1996 of the Joint Court of Justice.

The applicant rejects the Government’s argument on this point. He submits that objection proceedings cannot be regarded as effective. In his opinion the Netherlands Supreme Court is highest competent criminal court in the Netherlands Antilles .

The Court reiterates that the purpose of the requirement that domestic remedies must be exhausted is to afford the Contracting States the opportunity of preventing or putting right - normally through the courts - the violations alleged against them before those allegations are submitted to the Court. This means that the complaint which is intended to be brought before the Court must first be raised, either in form or in substance, before the appropriate national courts (see, inter alia , the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, §§ 65-66).

The Court notes that, in the proceedings before the Netherlands Supreme Court, the applicant did complain that the rule set out in Article 10 § 2 of the Cassation Regulation for the Netherlands Antilles is contrary to Article 14 of the Convention and that the Supreme Court, after having examined it, rejected this argument. Although, it does not appear that the applicant has explicitly relied on Article 6 of the Convention, the Court considers that the substance of his appeal in cassation did in fact concern the right of access to a court of cassation and, therefore, finds that the applicant can be regarded as having raised this complaint in substance in the proceedings in cassation.

The Court further considers that the applicant’s possibility to file an objection to the judgment of 23 January 1996 cannot be regarded as an effective remedy within the meaning of Article 35 § 1 of the Convention for the purposes of the complaints under the Convention as raised by the applicant, since these complaints are directly based on a statutory procedural rule. Moreover, the applicant has raised a complaint on the compatibility of this rule with Convention requirements before the highest competent domestic court, which has examined and rejected this complaint.

The Court is therefore of the opinion that the applicant has complied with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention.

As to the substance of the applicant’s complaint under Article 6 §§ 1 and 3 (c) of the Convention, the Government submit that the applicant has had access to two courts and is basically claiming a right of access - on his own terms - to a further court. Arguing that, according to the Court’s case-law under Article 6, the right of access to court is not absolute but may be subject to certain limitation, the Government are of the opinion that the system at issue is not contrary to Article 6 of the Convention in that it does not constitute a disproportionate means of ensuring that the accused is present at his own trial.

The applicant refutes the Government’s arguments and submits that the right to a fair trial in which a lawyer can defend the accused in his or her absence - and therefore without fear of arrest - is an integral part of the right to a fair hearing guaranteed by Article 6 of the Convention.

As regards the substance of the applicant’s complaints under Article 14 of the Convention, the Government submit that accused persons who have attended their trial and accused who have not are not analogous situations in that only for the latter category a special remedy of lodging an objection to the judgment given in absentia is made available.

The Government further submit that there is an objective and reasonable justification for making the difference in treatment at issue in the present case, namely - apart from the reasons set out in the Explanatory Memorandum to the Cassation Regulation for the Netherlands Antilles and Aruba - the purpose pursued by the Antillean justice system to ensure that as many cases as possible are tried in the presence of the accused. The means used to this end cannot, according to the Government, be regarded as disproportionate. To accept the applicant’s arguments would tie the authorities’ hands to an undesirable extent in their efforts to ensure an accused person’s presence at a criminal trial. It would also means that suspects would derive an unacceptable advantage by ensuring that the police or judicial authorities could not find them.

The applicant submits that the historical reasons for making a difference in treatment between present and absent accused as regards the right of access to the Netherlands Supreme Court, as set out in the Explanatory Memorandum to the Cassation Regulation for the Netherlands Antilles and Aruba, can no longer be considered as acceptable given the development in communication technology since 1959. He further submits that it follows from the Court’s case-law as regards defence rights under Article 6 of the Convention, that an absent defendant’s right to be defended by a legal representative prevails over a State’s interest in trying him in his presence. The applicant considers it unacceptable for a State to differentiate between available remedies and thus coerce and influence in his choice of procedural position and method of defence.

The Court considers, in the light of the parties’ submissions, that the cases raises complex issues of law and fact under the Convention, the determination of which depends on an examination of merits of the application as a whole. The Court concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

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

Michael O’Boyle Elisabeth Palm Registrar President