Final Resolution ResDH (2002)68 Human Rights Application No. 25514/94 Menckeberg against the Netherlands

(Adopted by the Committee of Ministers on 24 June 2002 at the 798th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to its Interim Resolution DH (97) 358, adopted on 11 July 1997 in the case of Menckeberg against the Netherlands, in which the Committee of Ministers notably decided that there had been a violation of Article 6, paragraphs 1 and 3 .c , of the Convention on account of the unfairness of certain criminal proceedings before the Appeal Court in 1993, having resulted in the applicant’s conviction to a four-months prison sentence in spite of the fact that, on the one hand, the summons for the hearing had not reached him and, on the other hand, that his lawyer had not been allowed to conduct any defence or to question witnesses in his absence;

Whereas it examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicant, proposals supplemented by a letter of the President of the Commission dated 20 July 1998;

Whereas at the 647th meeting of the Ministers’ Deputies, the Committee of Ministers agreeing with the Commission’s proposals, held by a decision adopted on 12 November 1998, in accordance with former Article 32, paragraph 2, of the Convention, that no just satisfaction was to be awarded to the applicant since the latter had not submitted any claim in this respect;

Whereas the Committee of Ministers invited the government of the respondent state to inform it of the measures taken following its decision of 11 July 1997, having regard to the Netherlands’s obligation under former Article 32, paragraph 4, of the Convention to abide by them;

Whereas during the examination of the case, the government of the respondent state accordingly gave the Committee of Ministers information about the measures taken in consequence of the latter’s decisions taken to avoid new violations of the same kind as that found in this case (this information appears in the appendix to this resolution);

Declares, after having taken note of the measures taken by the Government of the Netherlands, that it has exercised its functions under former Article 32 of the Convention in this case.

Appendix to Final Resolution ResDH (2002)68

Information provided by the Government of the Netherlands during the examination of the Menckeberg case by the Committee of Ministers

In this case, the applicant did not receive the summons to attend the hearing before the Court of Appeal because, in conformity with the law applicable at that time, they were served at his official address while he was detained in connection with other criminal offences.

The introduction, since the end of 1998, of a computerised data base now enables public prosecutors to ensure that judicial documents, including summonses, are also effectively served to the concerned person when this person is detained.

As regards the possibility for the lawyer to plead, even in the absence of the accused, the Government recalls that the case law of the courts had already changed in 1995, the European Court’s judgments in the Lala and Pelladoah cases (see Resolutions DH (95) 240 and DH (99) 241) having a direct effect in Dutch legal order.

Subsequently, the new practice of the Courts was codified by the amendment of the Code of Criminal Procedure (Act of 15 January 1998 - Bulletin of Acts and Decrees No. 33) which entered into force on 1 February 1998. The present Article 279, paragraph 1, of the Code of Criminal Procedure provides that a defendant who is absent from the trial may be defended by a lawyer, provided that the lawyer has been duly authorised by his client to do so. A defendant who is absent and has authorised his lawyer to conduct his defence will not be declared in default of appearance (paragraph 2).

The Government considers that these measures prevent the risk of new violations similar to that found in this case and that the Netherlands have thus fulfilled their obligations under former Article 32 in this case.