THIRD SECTION

Application no. 21723/08 Rhamona Bertliesje ADAMS against the Netherlands lodged on 5 May 2008

STATEMENT OF FACTS

The applicant, Ms Rhamona Bertliesje Adams, is a Dutch national, who was born in 1954 and lives in ‘ s-Gravenhage. She is represented before the Court by Mr J.S. Spijkerman , a lawyer practising in ‘ s-Gravenhage.

A. The circumstances of the case

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

The applicant was arrested on 13 January 2004 on suspicion of drugs trafficking after a postal package, containing cocaine and addressed to her, had been seized by police on 6 November 2003. At 11.10 a.m. on 13 January 2004 the applicant was taken into police custody ( inverzekeringstelling ).

Shortly after she had been taken into police custody and in accordance with article 40 § 2 of the Code of Criminal Procedure ( Wetboek van Strafvordering , “CCP”), a fax was sent from the police station to the Legal Aid Duty Roster Service ( piketcentrale ) in order for a lawyer to be assigned to the applicant. Pursuant to the Model Regulations of the Legal Aid Council ( Raad voor Rechtsbijstand ) concerning the Legal Aid Duty Roster Service as in force at that time, a lawyer should be present at the police station within six hours from the time of the Legal Aid Duty Roster Service being notified.

At 2.21 p.m. and 3.55 p.m. on 13 January 2004, without a lawyer having reported to the police station to visit and assist her, the applicant was interrogated by police. At the beginning of each interrogation the applicant was reminded by the police investigators of her right to remain silent. During the interrogation which had started at 2.21 p.m. she denied the allegations of drugs trafficking, but in the course of the interrogation that had started at 3.55 p.m. she confessed that she had been asked and had consented to receive some cocaine, hidden in a tin, which would be sent to her address.

The next day, on 14 January 2004, it appeared that the applicant had still not been visited by a lawyer. The police then contacted the Legal Aid Duty Roster Service, after which it became apparent that the police had faxed the notification form with the wrong side up to the Legal Aid Duty Roster Service, which as a result had only received a blank fax and had not informed a lawyer. The police faxed a new notification form to the Legal Aid Duty Roster Service on 14 January 2004 at 1.22 p.m., after which a lawyer arrived at the police station on the same day in the afternoon, at least at some time after 3.38 p.m.

On 16 January 2004 the investigating judge ( rechter-commissaris ) ordered the applicant ’ s detention on remand ( voorlopige hechtenis ), and at the same time ordered her detention to be suspended.

During the interrogations which were conducted after she had consulted counsel, as well as during the subsequent trial, which took place before the single-judge Chamber ( politierechter ) of the Regional Court ( rechtbank ) of The Hague, the applicant exercised her right to remain silent.

On 16 June 2005 the applicant was convicted of drugs trafficking and sentenced to 150 hours ’ community service and to a suspended term of three months ’ imprisonment. The conviction was inter alia based on the applicant ’ s confession as made by her in the course of the interrogation that had taken place from 3.55 p.m. onwards on 13 January 2004.

The single-judge Chamber rejected the applicant ’ s claim that the public prosecution service should be declared inadmissible or, in the alternative, that her confession should not be used in evidence because she had not had access to a lawyer prior to the interrogations which had been conducted on 13 January 2004. The single-judge Chamber nevertheless held as follows:

“In its determination of the sentence, the single-judge Chamber will take into account the fact that due to a non-intentional error on the part of the police the defendant did not have access to a lawyer while she was kept in policy custody. This is a grave omission which cannot be rectified. The single-judge Chamber will therefore mitigate the sentence to be imposed.”

The applicant lodged an appeal with the Court of Appeal ( gerechtshof ) of The Hague. On 14 December 2005 the Court of Appeal quashed the single-judge Chamber ’ s judgment, but also convicted the applicant of drugs trafficking, which conviction was based on the following items of evidence:

– a procès verbal drawn up by police on 24 November 2003 stating that information had been received to the effect that a parcel, presumably containing drugs, was on its way from French Guiana to an address in The Hague; that the captain of a commercial flight had handed the parcel to a police officer at Schiphol Airport on 5 November 2003; and that the parcel was addressed to one “R. Adam” at an address in The Hague;

– a procès verbal drawn up by police on 6 November 2003 stating that the parcel, posted on or around 20 October 2003 and addressed to “R. Adam” at an address in The Hague, contained six tins, two of which were opened by police and samples of the contents handed to the Netherlands Forensic Institute ( Nederlands Forensisch Instituut );

– the applicant ’ s statement as made in the course of the interrogation that had taken place from 3.55 p.m. onwards on 13 January 2004;

– a report drawn up by the Netherlands Forensic Institute on 2 March 2004 stating that the samples contained cocaine.

In its judgment the Court of Appeal agreed that there had been a breach of the applicant ’ s right to have timely access to a lawyer. It nevertheless found that this breach, although attributable to the police, was not of such gravity that it had to lead to the inadmissibility of the public prosecution service or to the exclusion of the applicant ’ s confession from the evidence. In that respect the Court of Appeal held that it was very likely that a police officer had committed a technical error by faxing the notification form with the wrong side up, and it noted that the Legal Aid Duty Roster Service had not seen fit to inform the police promptly that it had received a blank fax. The Court of Appeal then proceeded to examine whether the impugned omission had concretely harmed the applicant in her defence. It observed that it could not be excluded that, even if the notification form had been faxed correctly, a lawyer would have only arrived at the police station after the interrogation that had started at 3.55 p.m. on 13 January 2004 had already commenced, which would still have been within the time-limit of six hours pursuant to the Model Regulations of the Legal Aid Council. Moreover, the police had not been obliged to await the arrival of a lawyer before starting the interrogations. It could therefore not be said that the fact that the applicant had not been timely advised by counsel to make use of her right to remain silent had come about as a consequence of the police ’ s omission to inform the Legal Aid Duty Roster Service correctly, the more so as the applicant had been reminded of her right to remain silent at the beginning of each of her interrogations.

As a result of the breach of the applicant ’ s right to have timely access to a lawyer, the Court of Appeal found that article 359a § 1 (a) of the CCP had to be applied, in that the sentence to be imposed on the applicant was to be mitigated. The Court of Appeal sentenced her to 120 hours ’ community service and to a suspended term of three months ’ imprisonment.

The applicant lodged an appeal in cassation. In its final judgment of 13 November 2007 the Supreme Court rejected that appeal and upheld the Court of Appeal ’ s judgment, considering that the findings reached by the latter court did not demonstrate an incorrect interpretation of the law and were not incomprehensible (“ die oordelen geven geen blijk van een onjuiste rechtsopvatting , terwijl zij evenmin onbegrijpelijk zijn ”).

B. Relevant domestic law and practice

1. Legal assistance to suspects held in police custody

Article 40 of the CCP provides, insofar a relevant, as follows:

“1. The Counsel Assignment Office ( bureau rechtsbijstandvoorziening [of the Legal Aid Council]) can assign registered counsels, who have declared to be willing to do so, to provide legal assistance alternately to suspects held in police custody.

2. If assigned counsel within the meaning of the previous paragraph is available to provide legal assistance to a suspect held in police custody, he will, for the duration of that custody, act as counsel for the suspect. The public prosecutor or the assistant public prosecutor ( hulpofficier van justitie ) will without undue delay inform counsel about the police custody order.

...

5. The second (...) paragraph will not apply if the suspect has counsel of his own choosing.”

The Legal Aid Council has drawn up so-called Model Regulations concerning the Legal Aid Duty Roster Service. According to these Regulations as in force at the time when the applicant was taken into police custody, the Legal Aid Duty Roster Service had to assign counsel within two hours after it had received the notification that the suspect concerned had been taken into police custody. Within four hours after having been assigned by the Legal Aid Duty Roster Service counsel had to report to the police station where the suspect was being held.

As regards the right to access to a lawyer, the Dutch Supreme Court ( Hoge Raad ) changed its case-law in its judgment of 30 June 2009, i.e. after the domestic proceedings in the present case had concluded (Netherlands Law Reports ( Nederlandse Jurisprudentie ) 2009, no. 349), reasoning the following:

“2.7.1. If an arrested suspect has not, or not within reasonable terms, been offered a possibility to consult counsel prior to the first interrogation, this will in principle constitute non-compliance with procedural requirements within the meaning of article 359a of the CCP.

2.7.2. ... Therefore, based amongst other things on the finding of the European Court of Human Rights set out in paragraph 55 [of its judgment in the case of Salduz v. Turkey ([GC], no. 36391/02, 27 November 2008)] ... such non-compliance with procedural requirements should lead to the exclusion from the evidence of incriminating statements made without access to a lawyer.”

Based on this judgment of the Supreme Court, the Board of Procurators General ( College van procureurs-generaal ) of the public prosecution service drew up the Instruction (concerning) Legal Aid (prior to) Police Questioning ( Aanwijzing rechtsbijstand politieverhoor , “the Instruction”), which is an instruction within the meaning of article 130 § 4 of the Judiciary Organisation Act ( Wet op de rechterlijke organisatie ). The Instruction entered into force on 1 April 2010. Pursuant to the Instruction, the police have to inform a suspect about his or her right to have access to a lawyer before interrogating him or her. If a suspect does not explicitly waive his or her right to consult a lawyer, the Legal Aid Duty Roster Service has to be notified by the police without undue delay. The assigned lawyer is then to report to the police station within two hours, during which period of time the police is not allowed, save in exceptional circumstances, to start the interrogation.

2. Sanctions on non-compliance with procedural requirements by criminal investigation authorities

Article 359a of the CCP reads, insofar as relevant, as follows:

“1. The Regional Court can, if it appears that in the preliminary investigation non-compliance with procedural requirements has occurred that can no longer be repaired and the legal consequences thereof do not appear from the law, determine that:

a. the gravity of the sentence be mitigated in relation to the seriousness of the non-compliance, if the disadvantage caused by the fault can be compensated in this way;

b. the results of the investigation having been obtained by the non-compliance not be used in evidence;

c. the prosecution be declared inadmissible, if owing to the non-compliance the case cannot be examined in compliance with the principles of due process.

2. In its application of the first paragraph, the Regional Court takes into account the interests served by the infringed rule, the seriousness of the non-compliance and the disadvantage caused by it.

...”

Pursuant to article 415 § 1 of the CCP, article 359a of that code also applies to proceedings before a Court of Appeal.

COMPLAINT

The applicant complains that her rights under Article 6 § 3 (c), taken together with Article 6 § 1 of the Convention, were violated as interrogations took place without her having been able to consult a lawyer and since her confession made during one of those interrogations was used in evidence against her.

QUESTIONS

1. May the applicant still claim to be a victim of a violation of the Convention, within the meaning of Article 34?

2. Did the applicant have a fair trial in the determination of the criminal charges against her, in accordance with Article 6 § 1 of the Convention? In particular, was her right to have access to a lawyer respected, as required by Article 6 § 3 (c) of the Convention?

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