Information Note on the Court’s case-law 35

October 2001

Eliazer v. the Netherlands - 38055/97

Judgment 16.10.2001 [Section I]

Article 6

Criminal proceedings

Article 6-1

Access to court

Exclusion of cassation appeal following conviction in absentia in Netherlands Antilles: no violation

Facts : The applicant, charged with possession of drugs, was acquitted by the First Instance Court of the Netherlands Antilles a fter adversarial proceedings. The prosecution appealed to the Joint Court of Justice of the Netherlands Antilles and Aruba. The applicant failed to appear and the appeal was examined in absentia , although the applicant's lawyer attended the hearing and con ducted his defence. The court quashed the acquittal and convicted the applicant, who then lodged a cassation appeal to the Supreme Court. The Cassation Regulation for the Netherlands Antilles and Aruba provides that no such appeal lies against a conviction in absentia , although an objection may be lodged and, if the accused then appears before the trial court, a full retrial is held and a cassation appeal lies against the resulting judgment. The Supreme Court regarded the applicant's appeal as an objection and remitted the case to the Joint Court of Justice for a determination of the objection.

Law : Article 6 § 1 and § 3 (c) – Unlike in the cases of Poitrimol, Omar and Khalfaoui, the applicant was under no obligation to surrender into custody as a preconditi on to objection proceedings taking place;  it was his choice not to appear because of the risk of being arrested. Moreover, unlike in those cases, a cassation appeal would have become open to him once he appeared in objection proceedings. Against that back ground, the State's interest in ensuring that as many cases as possible are tried in the presence of the accused before allowing access to cassation proceedings outweighed the accused's concern to avoid the risk of being arrested. In reaching that conclusi on, account was taken of the entirety of the proceedings, in particular the fact that the applicant's lawyer had been heard in the appeal proceedings before the Joint Court of Justice and the fact that it was open to the applicant to secure access to the S upreme Court by lodging an objection which would have led to a retrial. Such a system, which sought to balance the interests involved, could not be said to be unfair and the Supreme Court's decision could not be considered a disproportionate limitation on the applicant's right of access to court.

Conclusion : no violation (5 votes to 2).

Article 14 in cojunction with Article 6 – In the light of the foregoing, the situation of a person convicted in absentia was not comparable to that of a person convicted fol lowing adversarial proceedings.

Conclusion : no violation (5 votes to 2).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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