FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34966/97

by Cornelis Robertus DE GROOT

against the Netherlands

The European Court of Human Rights ( First Section) sitting on 23 February 1999 as a Chamber composed of

Mrs E. Palm, President ,

Mr J. Casadevall,

Mr L. Ferrari Bravo,

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 17 December 1996 by Cornelis Robertus De Groot against the Netherlands and registered on 18 February 1997 under file no. 34966/97;

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

Having regard to the observations submitted by the respondent Government on 19 August 1998 and the observations in reply submitted by the applicant on 1 December 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1959, and resides in Amsterdam. He is represented by Mr G. Meijers , a lawyer practising in Amsterdam.

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

On 29 March 1993, the applicant’s data were deleted from the Population Register ( Gemeentelijke Basisadministratie ) of the Municipality of Amsterdam under the mention "left for unknown destination" ( vertrokken onbekend waarheen ).

On 9 December 1993 , the applicant was arrested on suspicion of counterfeiting and, at some unspecified point in time, was charged and summoned to appear before the Regional Court ( Arrondissementsrechtbank ) of Alkmaar .

On 15 March 1994 , a hearing was held before the Regional Court in the presence of the applicant and his lawyer. The Regional Court granted requests by both the defence and the prosecution to take further evidence. It referred the case back to the investigating judge for the hearing of five identified witnesses and an unspecified number of other witnesses, i.e. all those who had been involved in communications between the deputy public prosecutor and three identified police officers.

In the course of a hearing before the investigating judge ( rechter-commissaris ) in May 1994, the applicant stated that he resided at N. street 28 in Amsterdam.

On 25 May 1994 , a further hearing took place before the Regional Court in the presence of the applicant and his lawyer. As the composition of the Regional Court had changed in the meantime, it fully recommenced its examination. The Regional Court heard the applicant, considered the evidence and heard the parties’ final pleadings.

By judgment of 7 June 1994 , the Regional Court convicted the applicant of possession of materials knowing that these materials were intended for counterfeiting purposes and sentenced him to one year’s imprisonment with deduction of the time spent in pre-trial detention. The applicant was released on 7 August 1994 .

On 8 June 1994 , the public prosecutor filed an appeal against the Regional Court’s judgment with the Court of Appeal ( Gerechtshof ) of Amsterdam. On 13 July 1994 , in accordance with Article 409 para. 2 of the Code of Criminal Procedure ( Wetboek van Strafvordering , hereinafter referred to as "CCP"), notification of the public prosecutor’s appeal was served upon the applicant in person in the remand centre where at that time he was detained.

On 23 November 1994 , an unsuccessful attempt was made to serve the judicial notification ( gerechtelijke mededeling ), i.e. the summons containing the date and hour on which the applicant should appear before the Court of Appeal of Amsterdam, on the applicant at the address N. street 28 in Amsterdam. This was the address where the applicant had stated that he resided when he had been heard by the investigating judge in May 1994. The notification was subsequently deposited at the post office, but was not collected by anyone.

On 1 December 1994 , the judicial notification was returned to the sender and, on 8 December 1994 , was served in accordance with the procedure set out in Article 588 para. 1 (b) under 3 o of the CCP. The applicant was not detained during this period.

On 19 December 1994 , a hearing took place before the Court of Appeal. Since the applicant had not appeared, the Court of Appeal declared him in default of appearance ( verstek ) and continued its examination in absentia .

The applicant’s lawyer, who had appeared, presented the applicant’s defence. In his pleadings, the applicant’s lawyer argued that on the basis of the evidence available the applicant could not be found guilty of the charges brought against him.

In its judgment of 28 December 1994, following proceedings in absentia , the Court of Appeal quashed the judgment of 7 June 1994, convicted the applicant of counterfeiting activities and possession of materials intended for counterfeiting purposes and sentenced him to three years’ imprisonment. On 6 January 1995 , the applicant filed an appeal in cassation with the Supreme Court ( Hoge Raad ).

The applicant’s case-file was received at the Supreme Court on 23 October 1995 and the Supreme Court scheduled the case for 6 February 1996 . The Procurator General ( Procureur-Generaal ) to the Supreme Court submitted his conclusions on 21 May 1996 to which the applicant replied on 5 June 1996 .

Referring to Article 101a of the Judicial Organisation Act ( Wet op de Rechterlijke Organisatie ), the Supreme Court rejected the applicant’s appeal in cassation in its judgment of 10 September 1996, including the applicant’s complaint of the delay between the judgment on appeal and the first consideration of the case by the Supreme Court.

b. Relevant domestic law and practice

Pursuant to Section 409 para. 1 CCP, the Registrar of the Regional Court, after an appeal has been lodged against a judgment of the Regional Court, transmits the case-file in question to the Court of Appeal.

When only the public prosecutor has lodged an appeal, the Registrar does not send the case-file to the Court of Appeal until the defendant has been notified of the public prosecutor’s appeal (Section 409 para. 2 CCP). According to Section 412 para. 1 CCP, the President of the Court of Appeal determines, if possible within eight days after transmission of the case-file, the day of the hearing on appeal.

The notification of judicial communications ( gerechtelijke mededelingen ) to natural persons is regulated in Sections 585-590 CCP. According to Article 585 para. 3 CCP summonses and notifications ( dagvaardingen en aanzeggingen ) must be served ( betekening ). Pursuant to Article 587 para. 1 CCP, serving takes place by the delivery ( uitreiking ) of a judicial communication ( gerechtelijke mededeling ) by the postal services.

Article 588 CCP, insofar as relevant, reads as follows:

"1. The serving takes 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 the serving in person is not prescribed and the communication is presented in the Netherlands:

1 o to the address where the addressee is registered in the population register ( basisadministratie persoonsgegevens ), or

2 o if the addressee is not registered in the population register, to the permanent or temporary domicile of the addressee, or

3 o if the address is not registered in the population register and a permanent or temporary domicile is not known, to the Registrar of the Regional Court before which or in whose judicial district the case will be heard or has been heard previously.

2. ...

3. Where in a situation referred to in paragraph 1, section b. under 1 o or 2 o ,

a. the addressee is not found, the serving takes place by delivery to the person present at that address who declares to be willing to transmit the document without delay to the addressee;

b. nobody is found, the serving takes place by delivery to the addressee or a person authorised by the addressee at a place the address of which is indicated in a written message which must be left behind;

c. the delivery has not taken place, the communication is returned to the authority which issued it. When it appears that the addressee on the day of presentation and at least five days thereafter has been registered in the population register as residing at the address indicated on the communication, the communication shall subsequently be delivered to the Registrar of the Regional Court before which or in whose judicial district the case will be heard or has been heard previously. The Registrar will then send the communication without delay by regular mail to that address and annotates this on the act of delivery referred to in Article 589 .

4. ..."

Article 590 CCP, insofar as relevant, provides:

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

2. ...

3. Where the addressee is registered as resident in the population register, whereas at the trial it appears that he resides in fact at another address, the judge may order the appearance of the suspect who has not appeared."

Under Article 399 para. 1 CCP, 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 CCP). An objection may not be filed by an accused who has had the opportunity to appeal to a higher court with jurisdiction as to both fact and law (Article 399 para. 2 CCP). It follows from Article 399 para. 1 CCP that no objection may be filed against a judgment in absentia given on appeal.

Pursuant to Section 359 para. 1 CCP, a judgment must contain the means of evidence on which a conviction is based. However, since - pursuant to Section 345 para. 3 CCP - the court has to deliver the judgment within fourteen days following the closure of the trial, it was not unusual at the relevant time that initially an abridged judgment ( verkort vonnis ) would be drafted in cases where the accused was convicted. Such an abridged judgment does not account for the means of evidence on which the conviction is based.

A complete version of the judgment is not prepared unless the convicted person or the public prosecutor lodges an appeal against the judgment. In that case the full text of the means of evidence are included in the judgment and the case-file, including the complete judgment, is transmitted to the appeal court. This practice has been enacted in Sections 138 (b) and 365 (a) CCP which have entered into force on 1 November 1996 . If no appeal is lodged a complete judgment will be made available upon request of the prosecutor or the accused or his lawyer within three months after delivery of the judgment, unless this request is devoid of reasonable interest (Section 365 (c) paras. 1 and 2 CCP, which also entered into force on 1 November 1996).

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him have exceeded a reasonable time, in particular given the delay between the judgment of the Court of Appeal and the first consideration of his case by the Supreme Court.

2. The applicant further complains under Article 6 §§ 1 and 3(c) of the Convention that, in the proceedings before the Court of Appeal, he was deprived of his right to defend himself in person whereas he had not unequivocally waived this right and it has not appeared that the interests of the administration of justice justified a determination of the charges against him in absentia .

PROCEEDINGS BEFORE THE COURT

The application was introduced on 17 December 1996 and registered on 18 February 1997 .

On 20 May 1998 , the Commission decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 19 August 1998 . The applicant was invited to submit his observations on reply before 22 October 1998 .

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.

By letter of 1 December 1998 , the applicant’s representative informed the Court that he did not find it necessary to reply to the Government’s observations.

THE LAW

1. The applicant complains under Article 6 para. 1 of the Convention that the criminal charges against him have not been determined within a reasonable time, in particular in view of the period of time which elapsed between the date of the judgment of the Court of Appeal and the date on which the Supreme Court considered the applicant’s appeal in cassation for the first time.

Article 6 of the Convention, insofar as relevant, reads:

"In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by a ... tribunal ..."

The Government submit that the proceedings at issue, in the course of which three different courts examined the applicant’s case, lasted in total two years, nine months and one day. Although the Government admit that it took an undesirably long time for the applicant’s case-file to be transmitted from the Court of Appeal to the Supreme Court, which delay was caused by the fact that a large number of witness statements and twenty-six other exhibits had to be processed for inclusion in the full text of the judgment of the Court of Appeal, the Government is of the opinion that this delay, in itself, is insufficient for a finding that the proceedings exceeded a reasonable time. In this respect the Government consider that, as the applicant was not detained pending the proceedings before the Supreme Court, he did not belong to the category of persons who are entitled to “special diligence”.

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of each case and having regard in particular to the following criteria: the complexity of the case, the conduct of the applicant and that of the competent authorities (cf. Eur. Court HR, Reinhardt and Slimane-Kaïd v. France judgment of 31 March 1998, Reports of Judgments and Decisions 1998-II, No. 68, p. 662, § 97). Persons held in detention are further entitled to special diligence (cf. Eur. Court HR, Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, p. 35, § 84).

The Court notes that the proceedings at issue started on 9 December 1993 , when the applicant was arrested, and ended on 10 September 1996 , when the Supreme Court handed down its judgment. The proceedings thus lasted in total two years, nine months and one day.

As regards the complexity of the case, the Court observes that several witnesses were heard in which connection the case was referred back to the investigating judge.

As regards the conduct of the competent authorities, the Court observes that the case was examined at three levels of jurisdiction within two years, nine months and one day. It cannot find this period to be unreasonably long for the purposes of Article 6 § 1 of the Convention.

The Court further notes that a period of slightly less than ten months elapsed between the date on which the Court of Appeal handed down its judgment and the date on which the applicant’s case-file was received at the Supreme Court and that the Supreme Court considered the applicant’s case for the first time three months and two weeks after having received the applicant’s case-file.

In these circumstances, and having regard in particular to the fact that - unlike the situation in the case of Abdoella v. the Netherlands (Eur. Court HR, judgment of 25 November 1992, Series A no. 248) - the applicant was released two months after his conviction by the first instance court, the Court cannot find that the delay between the appeal proceedings and the proceedings in cassation exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant further complains under Article 6 §§ 1 and 3(c) of the Convention that, in the proceedings before the Court of Appeal, he was deprived of his right to defend himself in person whereas he had not waived this right.

Article 6 of the Convention, insofar 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:

...

c. to defend himself in person or through legal assistance of his own choosing ..."

The Government submit that, on 13 July 1994 , the applicant was notified in person of the public prosecutor’s appeal against the Regional Court’s judgment of 7 June 1994 and was, therefore, aware of the fact that he could expect a summons to appear before the Court of Appeal. The Government further submit that the public prosecutor’s office did everything within its power to inform the applicant of the date of the hearing and consequently to ensure his presence there and that the procedure followed in the present case as regards the appeal summons is in accordance with the provisions of the Code of Criminal Procedure.

The Government emphasise that the address given by the applicant in the documents submitted to the Court is the same address as he gave to the investigating judge in May 1994. According to the Government, only the applicant can answer the question why the appeal summons was not collected. Moreover, although the applicant did not appear before the Court of Appeal, his lawyer was present and was given ample opportunity to conduct the applicant’s defence. The lawyer argued that, on the basis of the evidence available, the applicant could not be found guilty of the charges against him.

The Government are, therefore, of the opinion that the proceedings before the Court of Appeal did not compromise the applicant’s right to a fair trial under Article 6 of the Convention. His lawyer was allowed to conduct the applicant’s defence exactly as he would have, had the applicant been present. The Government find nothing in the documents submitted to the Court suggesting that the outcome of the proceedings would have been different had the applicant been present.

As the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1 of this provision, the Court will examine the present complaint under both provisions taken together (cf. Eur. Court HR, Lala v. the Netherlands judgment of 22 September 1994, Series A no. 297-A, p. 12, para. 26).

The Court recalls that the right of an accused person to participate in person in the trial is a fundamental element of a fair trial (cf. Eur. Court HR, Colozza v. Italy judgment of 12 February 1985, Series A no. 89, p. 14, para. 27; and T. v. Italy judgment of 12 October 1992, Series A no. 245-C, p. 41, para. 26). An accused may waive the exercise of this right, but to do so he must have received notification in person and his decision not to appear or not to defend himself must be established in a unequivocal manner (Eur. Court HR, Colozza v. Italy judgment, loc. cit., p. 14, § 28). Furthermore, even where an appeal court has full jurisdiction to review a case on questions of fact and law, Article 6 of the Convention does not always require an absolute right for the accused to be present in person. In assessing this question regard must be had, inter alia , to the special features of the proceedings involved and the manner in which the defence’s interests were presented and protected before the appellate court, particularly in the light of the issues to be decided by it (cf. (Eur. Court HR, Belziuk v. Poland judgment of 25 March 1998, Reports of Judgments and Decisions 1998-II, No. 67, p. 570, § 37) .

The Court considers that informing a person of the date on which criminal charges against him or her are to be examined is a legal act of such importance that it must be carried out in accordance with procedural and substantive requirements capable of guaranteeing the effective exercise of the rights of the accused (cf., mutatis mutandis , T. v. Italy judgment, loc. cit., p. 42, § 28).

The Court observes that, unlike the situation in the case of Colozza v. Italy (Eur. Court HR, judgment of 12 February 1985, loc.cit ), the applicant was convicted in first instance following adversarial proceedings conducted in his presence and was notified in person of the public prosecutor’s appeal. He was thus aware of the fact that appeal proceedings had been instituted.

The Court further observes that the applicant was not detained at the time the authorities issued and attempted to serve the appeal summons. The summons was presented at his last known address and, as it could not be delivered there, subsequently served in accordance with Article 588 para. 1 (b) under 3 of the Code of Criminal Procedure.

In these circumstances and taking into account that the applicant has not disputed the Government’s argument that the address he has stated in the documents submitted to the Court is the same address as the address he gave to the investigating judge in May 1994, the Court is of the opinion that the applicant was aware of the fact that appeal proceedings had been instituted and thus could reasonably expect to receive the summons to appear before the Court of Appeal at some point in time. In the particular circumstances of the present case, the Court is satisfied that the Netherlands authorities, as regards the attempts to inform the applicant of the appeal summons, exercised sufficient diligence to ensure the effective enjoyment of the applicant’s rights guaranteed under Article 6 of the Convention.

As regards the question whether the applicant’s absence in the proceedings before the Court of Appeal affected the fairness of these proceedings within the meaning of Article 6 of the Convention, the Court notes that the applicant’s lawyer was allowed to conduct the applicant’s defence before the Court of Appeal in the applicant’s absence.

It does not appear from the case-file that, in the proceedings before the Court of Appeal, the applicant’s lawyer objected to the decision to continue the proceedings in absentia, sought an adjournment on the basis of the applicant’s absence or raised any arguments to the effect that the applicant’s absence would constitute a handicap for the defence in regard, for instance, to the taking of further evidence. The applicant’s lawyer merely defended the applicant in relation to the substance of the charges brought on the basis of the evidence available to the Court of Appeal.

The Court is, therefore, of the opinion that it cannot be said that the proceedings at issue fell short of the requirements of Article 6 of the Convention as to fairness of proceedings.

It follows that this part of the application must also be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Michael O’Boyle Elisabeth Palm Registrar President