Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11884/85

by D.

against the Netherlands

The European Commission of Human Rights sitting in private

on 7 May 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 June 1985 by

D. against the Netherlands and registered on 6 December 1985 under

file No. 11884/85;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts as submitted by the applicant may be summarised as

follows.

The applicant is a Moroccan national, born in 1952 in

Issoufian, Morocco, and currently residing in Utrecht, the

Netherlands. He works in a hospital in a non-professional capacity.

In the proceedings before the Commission he is represented by

Mr. E. Hummels, a lawyer practising in Utrecht.

On 18 June 1985, the applicant was arrested and put into

detention on suspicion of murder. His brother was also detained on

suspicion of the same murder. Mr. Hummels presented himself as both

brothers' lawyer.

That same day the lawyer was denied access to the applicant by

Order of the Public Prosecutor, who based himself on Section 50

para. 2 of the Dutch Code of Criminal Procedure (Wetboek van

Strafvordering), which provides, inter alia:

"If specific circumstances lead to a serious suspicion that

free consultation between counsel and the accused will

either be used to acquaint the accused with certain

circumstances which, in the interest of the investigation,

he should temporarily not be informed of, or will be

abused to attempt to impede the discovery of the truth,

<.....> during the preliminary investigation the public

prosecutor may repeatedly order that counsel shall not have

access to the accused or that they shall not be allowed to

consult alone and that letters or other documents exchanged

between counsel and the accused shall not be handed over.

The order shall describe the specific circumstances as in

the preceding sentences; it shall only limit the free

consultation between counsel and the accused to the extent,

and for the time period, that the circumstances require,

and is at any rate only valid during six days at most <.....>."

In accordance with para. 3 of Section 50, this Order was

immediately brought before the Regional Court (Arrondissementsrechtbank)

of Utrecht for review. The Public Prosecutor stated that he had reason

to suspect that the applicant and his brother were attempting to cover

up the truth. Therefore, to avoid them being able to align their

statements, they should not be allowed to consult with the same

lawyer. He invoked the first reason stated in Section 50 para. 2.

The applicant's counsel (Mr. Hummels) claimed before the

Regional Court a violation of Article 6 para. 3 (c) of the Convention,

because the accused was being denied the counsel of his choice.

The Regional Court, on 19 June 1985, ratified the Public

Prosecutor's Order, confirming the "serious suspicion that free

consultation between counsel and will be used to

acquaint with certain circumstances which, in the

interest of the investigation, he should temporarily not be

informed of".

As regards the argument under Article 6 para. 3 (c) of the

Convention, the Regional Court held that it did not apply, as the

applicant had not yet been formally charged.

No appeal is possible against this decision by the Regional

Court. The applicant was allowed to see a lawyer appointed by the

Court.

On 25 June 1985 the applicant was released following a request

by his counsel (Mr. Hummels). The Regional Court of Utrecht considered

in their release order that the reasons for his detention no longer

existed.

No subsequent criminal proceedings were brought against the

applicant and he was awarded monetary compensation by the Court of

Appeal (Gerechtshof) of Amsterdam on 1 May 1987 for having been put

in detention without sufficient reason.

COMPLAINT

The applicant complains of having been denied the right

to consult with the lawyer of his choice during his detention. He

invokes Article 6 para. 3 (c) of the Convention in this respect.

THE LAW

The applicant has complained that he was denied the right to

defence counsel of his own choice. He has alleged a violation of

Article 6 para. 3 (c) (Art. 6-3-c) of the Convention in this respect.

This Article provides as follows:

"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 or, if he has not

sufficient means to pay for legal assistance to be

given it free when the interests of justice so

require;"

The Commission does not find it necessary to determine the

question whether Article 6 para. 3 (c) (Art. 6-3-c) of the Convention

applies in cases where a person is detained but not subsequently

charged and brought to trial because, in any event, it finds the

applicant's complaints manifestly ill-founded for the reasons set out

below.

In the present case the applicant was detained for seven days

and then released. No subsequent criminal proceedings were instituted

against him. The applicant was not allowed to see his personal lawyer

because that lawyer was also representing the applicant's brother, who

had been arrested at the same time on the same charge. The Public

Prosecution wished to eliminate the risk of collusion between the two

brothers. The Regional Court approved the Public Prosecutor's decision

on 19 June 1985. Under Dutch law the applicant's counsel may be

denied access to his client during the preliminary investigation for

specific purposes and for a limited period of time. The applicant was

allowed unlimited access to another lawyer appointed by the Court.

The restrictions placed on the applicant's contact with his

personal lawyer were limited in time, in accordance with Dutch law,

and all the necessary functions of defence counsel at this stage of

the proceedings which the personal lawyer was unable to perform could

be fulfilled by the lawyer appointed by the Court.

In these circumstances, the Commission concludes that there is

no indication that Article 6 para. 3 (c) (Art. 6-3-c) of the

Convention, even if applicable, was violated in the present case.

It follows that the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

&_DECLARES THE APPLICATION INADMISSIBLE.&S

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Menu

D. v. THE NETHERLANDS

D. v. THE NETHERLANDS

LEXI