FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31716/96

by August Frederik SUART

against the Netherlands

The European Court of Human Rights ( First Section) sitting on 6 July 1999 as a Chamber composed of

Mr J. Casadevall , President ,

Mr L. Ferrari Bravo,

Mr Gaukur Jörundsson ,

Mr C. Bîrsan ,

Mr B. Zupančič ,

Mrs W. Thomassen ,

Mr T. Pantiru , Judges ,

with 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 27 March 1996 by August Frederik Suart against the Netherlands and registered on 4 June 1996 under file no. 31716/96;

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

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Netherlands national, born in 1962 and resident on Curaçao (Netherlands Antilles).

He is represented before the Court by Mr G.P. Hamer , a lawyer practising in Amsterdam.

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

A. Particular circumstances of the case

The applicant hails originally from Curaçao (Netherlands Antilles).  It appears that at some time before the events complained of he was convicted of drugs dealing there and spent fourteen months in prison.  He subsequently moved to the Netherlands.

In the spring of 1993 the applicant went to visit his native Curaçao .  He returned to the Netherlands on 13 April 1993, arriving at Schiphol (Amsterdam) Airport on 14 April.

Passing through customs the applicant stated that he had nothing to declare.  Nonetheless his luggage was inspected by customs officials.  A clock was found which had a wooden casing decorated with a picture of a typical Curaçao house.  It appears from an official record subsequently drawn up by the customs officials concerned that they had felt the clock body to be “rather thick” and that, when they tapped it, it had sounded hollow.  They had drilled a hole into it and some white powder had come out on the drill.  When opened the clock was found to contain 620 grams of a substance identified as cocaine.

The cocaine and the clock were seized.  The applicant was arrested and questioned by a police officer and a customs officer.  He stated that he had not known that the clock contained cocaine.  The police officer placed him in police custody ( inverzekeringstelling ).

The applicant was questioned by the police officer and the customs officer on 16 April 1993.  According to his statement on this occasion, he had met a young woman, one D., on Curaçao , with whom he had entered into an intimate relationship.  The applicant and D. had planned to travel to the Netherlands together.  For this reason he had postponed his departure for a few days.  His airline ticket, which had cost 1,900 guilders, had been bought for him by a friend.  He had given this friend 1,200 guilders and the friend had paid the balance himself.  He declined to give the name of the friend.  On the day of the applicant’s and D.’s planned departure, 13 April 1993, D. had told the applicant that she would not accompany him.  She had given him a souvenir clock.  The applicant had travelled to the Netherlands alone. The applicant stated that he was not prepared to relinquish title ( afstand doen ) to the clock and the cocaine because they were not his.

An unsigned document which was apparently appended to a receipt dated 14 April 1993 and delivered to the applicant by the police officer and the customs officer states that the applicant had in fact relinquished title to the clock and the cocaine.  This document further states that the clock and the cocaine would be kept by the police at Schiphol Airport pending a decision of the public prosecutor.

The applicant was questioned by an investigating judge on 16 April 1993.  He made a brief statement confirming the statement made earlier the same day to the police officer and the customs officer.  The investigating judge placed him in detention on remand ( voorlopige hechtenis ).

On 19 May 1993 the applicant was released pending trial by order of the Haarlem Regional Court after a brief hearing in camera.  According to the applicant’s counsel the clock was present at that hearing.  The Regional Court’s order, however, does not refer to it.

Proceedings in the Regional Court

On 19 July 1993 the public prosecutor ( officier van justitie ) sent the applicant a notification that he would be prosecuted for importing or, in the alternative, possessing a quantity of cocaine.

The applicant was summoned to appear before the Regional Court ( arrondissementsrechtbank ) of Haarlem on 29 November 1993.  The summons was served at the applicant’s registered address in Lelystad on 28 October 1993.  As the applicant was not at home at the time, the summons was handed to his sister, who agreed to take charge of it and ensure that it reached the applicant without delay.

On 24 November 1993 the applicant’s lawyer sent two fax messages, one to the Regional Court’s registrar and one to the public prosecutor, both asking for the clock to be produced at the hearing.  Two days later the applicant’s lawyer received a message by telephone from the secretary of the public prosecutor to the effect that the clock had not been deposited at the registry of the Regional Court and could not be traced.

The applicant did not appear at the hearing on 29 November 1993.  His counsel, who was present, stated that the applicant was apparently living in Amsterdam and that he had the impression that the summons had reached the applicant.  He did not seek an adjournment for lack of any arguments on which to base such a request.  The Regional Court proceeded with the trial in the applicant’s absence.

Invoking the report of the European Commission of Human Rights in the case of Lala v. the Netherlands (4 May 1993, no. 14861/89, Series A no. 297-A), the applicant’s counsel asked to be allowed to address the court in the applicant’s defence.  The prosecution objected on the ground that no compelling reasons were apparent which prevented the applicant from attending the hearing.  This objection was accepted by the Regional Court, which accordingly proceeded to a judgment without hearing any defence argument.

On 13 December 1993 the Regional Court gave its judgment.  It found the applicant guilty of having intentionally imported 620 grams of cocaine into the Netherlands and sentenced him to twelve months’ imprisonment.  It withdrew the clock and the cocaine from circulation.

Proceedings in the Court of Appeal

The applicant appealed to the Court of Appeal ( gerechtshof ) of Amsterdam.

A summons to appear before the Court of Appeal on 1 September 1994 was addressed to the applicant at his address in Lelystad .  However, it appeared that the applicant had in the meanwhile returned to Curaçao , and so the Court of Appeal declared the summons null and void.  The applicant was summoned anew, this time to appear before the Court of Appeal on 4 January 1995.

The applicant’s counsel – not the same lawyer who had tried to defend the applicant before the Regional Court – submitted grounds of appeal in writing.

Relying on the European Court’s Lala v. the Netherlands judgment of 22 September 1994 (Series A no. 297-A) he argued that the first-instance proceedings had not been fair because the defence had not been heard. He asked for the case to be referred back to the Regional Court for rehearing in the applicant’s presence.

Relying on, inter alia , the judgment of the European Court of Human Rights in the case of Salabiaku v. France (7 October 1988, Series A no. 141-A), he argued that criminal intent on the part of the applicant could not be proved.  The clock which D. had given the applicant had appeared perfectly normal and there had been nothing to suggest that it might contain any illicit substance.  He asked for the clock to be produced at the hearing.

The Procurator General ( procureur-generaal ) of the Court of Appeal wrote to the applicant’s counsel on 22 December 1994 informing him that the clock could not be produced because it had been destroyed.

The applicant and his counsel were present at the hearing on 4 January 1995.  Counsel asked the Court of Appeal first to rule on the preliminary objections contained in his statement of grounds of appeal.

The Court of Appeal withdrew to consider these objections.  After deliberating in private it rejected the objection that the summons to the first-instance hearing had been served at the wrong address, noting that the address to which it had been served had been the address at which the applicant was registered and that it did not appear that the applicant had not been resident there.  It further found that Article 6 of the Convention did not oblige it to refer the case back to the Regional Court on the ground that the applicant’s counsel had not had the opportunity to address that court in the applicant’s absence.

The hearing was resumed.  The applicant availed himself of his right to remain silent.

The applicant’s lawyer again asked for the clock to be produced.  The Procurator General again stated that it had been destroyed.

The lawyer then argued that the prosecution ought to be declared inadmissible because what it considered to be the most essential item of prosecution evidence, the clock, had been destroyed; in the alternative, since the clock could not be produced, it should be assumed that the applicant had not had any real reason to examine it when it was given to him, and so the clock could not be relied upon to ground a conviction.

The Court of Appeal gave its judgment on 18 January 1995.  It found the applicant guilty of having intentionally imported cocaine into the Netherlands and sentenced him to twelve months’ imprisonment.

The Court of Appeal noted that although the applicant had not formally relinquished title to the clock, it could be inferred from his “procedural attitude” ( proceshouding ) at the relevant time that he had not been interested in having the clock re-examined at a later stage.  There was therefore no need to declare the prosecution inadmissible merely because the clock had been destroyed by mistake.  Moreover, the clock was not so important an item of prosecution evidence as the defence claimed.  In any event, sufficient information about it was available in the form of descriptions and photographs, and to that extent the rights of the defence were not impaired to any material extent.

In so far as the defence claimed that it had not been apparent that there had been anything unusual about the clock, the Court of Appeal referred to the official report by the customs officers who had arrested the applicant, from which it appeared that the applicant had been found in possession of a clock comprising a wooden body which had appeared “rather thick” and which, when tapped on, had sounded hollow.

Proceedings in the Supreme Court

The applicant, through his lawyer, lodged an appeal on points of law to the Supreme Court ( Hoge Raad ) on 29 May 1995.

He complained, as his first ground of appeal, that since the prosecution had been responsible for the destruction of the clock, the prosecution ought to have been declared inadmissible or, in the alternative, all evidence based on the clock ought to have been rejected.  It was of essential importance whether or not the appearance of the clock had been such as to justify any reasonable suspicion that it might contain cocaine – which in his contention was not the case.  Moreover, even if the applicant should be considered to have relinquished title to the clock – which in his contention was not so either – he had not waived the right to base a defence on it.  Finally, the photographs contained in the file were not adequate substitutes for the clock itself.

He claimed, as his second ground of appeal, that since he had consistently denied all knowledge of the fact that the clock contained cocaine, it could not be proved that he had intentionally imported that substance into the Netherlands.  In his contention the finding of intent had been based solely on the presence of the cocaine in his luggage.

As his third ground of appeal, relying on the European Court’s above-mentioned Lala judgment, he complained about the refusal by the Court of Appeal to refer the case back to the Regional Court for a rehearing at first instance, given that the Regional Court had refused to allow his counsel to address it in his defence.

Finally, should the above grounds of appeal in themselves not constitute sufficient reason to overturn the judgment of the Court of Appeal, he argued that, taken together, they reflected a general lack of fairness of the proceedings.

The Supreme Court gave its judgment on 7 November 1995.  It rejected the appeal in its entirety.

With regard to the first ground of appeal, it found that the clock had been destroyed by mistake and contrary to the order given by the Public Prosecutor that it should be deposited at the registry of the Regional Court.  In these circumstances there was no reason to declare the prosecution inadmissible.  Nor, in the circumstances of the case, was there any reason to refuse to admit prosecution evidence based on the clock.  In any event the applicant had not claimed before the Court of Appeal that the photographs of the clock were inadequate to form an idea of its appearance; such an allegation, being of a factual nature, could not be put forward for the first time in an appeal on points of law.

With regard to the second ground of appeal, the Supreme Court found that the circumstances of the case (including the fact that a large part of the applicant’s airfare had been paid for by a friend, and that the applicant had put a clock given to him at the airport into his luggage without further examination), seen in the context of the fact – which was common knowledge – that narcotics were often smuggled into the Netherlands by air from the Netherlands Antilles, were sufficient to justify the Court of Appeal’s finding that the applicant had knowingly taken the risk that the clock might contain cocaine which he would then be smuggling into the Netherlands.

With regard to the third ground of appeal, the Supreme Court referred to its own case-law according to which the failure by the first-instance court to allow counsel to plead in the absence of the accused, although unlawful per se, did not entail any obligation on the part of the Court of Appeal to refer the case back to the Regional Court for a rehearing at first instance.

The fourth ground of appeal was rejected in view of what had been held with regard to the other three points.

COMPLAINTS

The applicant makes three complaints under Article 6 of the Convention.

Firstly, he complains that his counsel was not allowed to conduct the defence in his absence when he was tried at first instance.   He relies on Article 6 §§ 1, 3 (b) and 3 (c).

Secondly, he complains that the destruction of the clock made it impossible for him to show at the trial that he had had no reason to suspect when it was given to him that it contained any illicit substance, which meant that he was deprived of an opportunity to present evidence that would disculpate him.  He relies on Article 6 §§ 1 and 3 (b), (c) and (d).

Thirdly, he complains of a violation of the presumption of innocence in that he was convicted of illegally importing cocaine without “criminal intent” having been proved.  He relies on Article 6 §§ 1, 2 and 3.

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

“Article 6 – Right to a fair trial

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

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

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

…

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;

d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

…”

1. The applicant, relying on the Court’s Lala v. the Netherlands judgment of 22 September 1994 (Series A no. 297-A), argued that the Court of Appeal ought to have referred the case back to the Regional Court for a rehearing at first instance.  He argued that a person suspected of a criminal act had a right to a fair hearing in two separate instances, as was in fact recognised in principle by Netherlands law.  He had, however, nonetheless been deprived of one instance.  This was unfair, especially in view of the fact that unlike the defence the prosecution had had the opportunity to address both the Regional Court and the Court of Appeal.

In the Court’s view, an important distinction between the present case and those of Lala and Pelladoah ( judgments of 22 September 1994, Series A nos. 297-A and 297-B respectively) is that in the latter cases the applicants were deprived of the possibility to defend themselves on appeal, that being the last instance where they could put forward arguments going to both the facts of their cases and the law.  In the present case, the applicant had the benefit of a complete rehearing.

In its De Cubber v. Belgium judgment of 26 October 1984 (Series A no. 86), the Court held:

“The possibility certainly exists that a higher or the highest court might, in some circumstances, make reparation for an initial violation of one of the Convention’s provisions …” (loc. cit., § 33).

In the circumstances of the present case the Court finds that the defect complained about in the first-instance proceedings was sufficiently redressed by the rehearing before the Court of Appeal.  This finding is not affected by the fact that the prosecution was heard by the Regional Court, even if the defence was not; it has not been alleged, nor is it apparent, that the submissions of the prosecution at first instance had any influence on the appeal proceedings.

The Court does not accept the applicant’s submission that the Convention guaranteed the applicant the right to defend his case twice. The right to an appeal against conviction or sentence, as such, is not guaranteed by Article 6 of the Convention.  It is to be found in Article 2 of Protocol No. 7, which the Netherlands signed on 22 November 1984 but have not yet ratified.

There has accordingly been no violation of Article 6 of the Convention on the point here at issue and the applicant’s first complaint is therefore manifestly ill-founded.

2. The applicant argues that it was essential for the clock to have been presented at the hearing.  He had wished to demonstrate to the Court of Appeal that there had been no reason for him to assume that the clock contained cocaine.  He had, however, been deprived of this possibility because the clock had been destroyed by mistake; nevertheless, the Court of Appeal had held in its judgment, on the basis of the official record drawn up by the police officer and the customs officer on 14 April 1993 that the wooden body of the clock had been “rather thick” and come to the conclusion on that basis that the applicant was, or ought to have been, aware that it contained cocaine.

The Court notes that the case-file of the domestic proceedings contained photographs of the clock and that the applicant did not state before the Court of Appeal that these photographs were insufficient to convey a good impression of the clock’s appearance.  True, he did so state before the Supreme Court; the Supreme Court held, however, that it was not possible to raise such a complaint for the first time in an appeal on points of law.  Moreover, the applicant’s conviction was not based to a decisive extent on the appearance of the clock, but on other evidence as well – including the Court of Appeal’s assessment of statements made by the applicant himself.  The Court is of the opinion that in these circumstances the failure to produce the clock at the hearing did not unduly prejudice the rights of the defence.

It follows that, in this respect, no violation of Article 6 can be found on the facts of the present case and that the applicant’s second complaint is likewise manifestly ill-founded.

3. The applicant alleges a violation of the presumption of innocence in that his criminal intent was assumed without proof.  In his submission the Court of Appeal had made no reasoned finding on this point.  The Supreme Court had itself made findings of fact, which the applicant had not had the opportunity to contest, so as to find that the applicant’s criminal intent could be established on the basis of the evidence used by the Court of Appeal. In particular, the Supreme Court had based itself on the finding that it was “common knowledge” that drugs were frequently smuggled into the Netherlands from the Netherlands Antilles by air, which had never been stated before the Court of Appeal; it had found that the surcharge on the applicant’s airline ticket had been paid by “a certain D.”, whereas the applicant had consistently called D. his “girlfriend”; and it had found that the applicant had put the clock into his suitcase “without further examination”, which was also not to be found in the evidence relied on by the Court of Appeal.

The Court recalls that the presumption of innocence will be violated if, without the accused’s having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising the rights of the defence, a judicial decision reflects

an opinion that he is guilty (see the Minelli v. Switzerland judgment of 25 March 1983, Series A no. 62, § 37).  Such is not the case here.  The Court of Appeal in adversarial proceedings found on the basis of the evidence available to it that the applicant had intentionally imported cocaine.

What the applicant is apparently seeking is in effect a review of the Supreme Court’s rejection of his complaints against the Court of Appeal’s findings of fact.  The Court recalls that it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed the rights and freedoms protected by the Convention and its Protocols (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, § 45).  No such violation being apparent here it follows that the Court cannot consider the applicant’s allegations.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Michael O’Boyle Josep Casadevall Registrar President