DISSENTING OPINION OF MR E.A. ALKEMA JOINED BY

MM G. JÖRUNDSSON, B. MARXER, I. CABRAL BARRETO,

E. BIELIŪNAS AND A. ARABADJIEV

I regret that I am unable to share the view of the majority of the Commission that there has been a violation of Article 6 paras. 1 and 3 (b) of the Convention in this case.

In my opinion, the question which arises in the present application is similar to the one examined by the Court in its judgment in the Hadjianastassiou v. Greece case (judgment of 16 December 1992, Series A no. 252). In that case, the failure to give reasons in the judgment read out by the President of the Courts-Martial Appeal Court and the short time-limit for appealing to the Court of Cassation had led to Mr Hadjianastassiou's appeal on points of law being bound to fail. The Court, in examining whether the national courts had indicated the grounds on which they had based their decision with sufficient clarity to enable Mr Hadjianastassiou to exercise usefully the rights of appeal available to him, found that the rights of the defence had been subject to restrictions incompatible with Article 6 (op. cit., p. 16, para. 33, and p. 17, para. 37).

It appears from an analysis of domestic law and practice in the present case that in the Netherlands an appeal is considered as being directed against the charges brought against the accused rather than against the judgment as such. As long as the appeal is lodged within the fourteen day period following the oral delivery of the judgment, reasons for the appeal may be submitted as late as during the hearing on appeal, and the appeal may be withdrawn as long as the hearing on appeal has not commenced. In my view, this constitutes a relevant difference compared with the situation in the Hadjianastassiou case, where the applicant had already become time-barred from expanding upon his appeal on points of law when he received the finalised judgment which contained information he required for the substantiation of his appeal (op. cit., p. 17, para. 36). It follows that in the present case it was open to the applicant to lodge an appeal within the fourteen day period and to withdraw the appeal, if he so wished, upon receipt of the complete judgment.

Although I note that it is in dispute between the parties which parts of the Regional Court's judgment were read out on 11 May 1995, it strikes me as somewhat peculiar that the applicant's lawyers, who were practising in Rotterdam, would not have been aware of the practice adopted by the local Regional Court to submit copies of abridged judgments only upon a written request to that effect. Since the applicant has not submitted that there was no such practice, I consider that his counsel could have been expected to ensure that he be at least provided with a copy of the abridged judgment. I would recall in this respect that according to the Commission=s case-law, if a litigant is represented by a lawyer, it is generally through the latter that he has to exercise his procedural rights (cf. No. 21782/93, Dec. 26.6.95, D.R. 82, p. 5).

Contrary to what the applicant submits, moreover, the abridged judgment did contain the Regional Court's considerations leading to that Court's rejection of his defence pleas as well as those relating to the determination of the sentence (see paras. 28-29 above). The only element of the abridged judgment that still had to be completed was the description of the means of evidence on which the Regional Court had based itself, i.e. a factual summary of declarations by witnesses and not an assessment by the Regional Court. In my opinion the abridged judgment contained sufficient detail for the applicant to be able to make an informed choice as to whether or not to lodge an appeal. Upon the applicant lodging an appeal the complete judgment would have been made available at such a time as to enable the applicant to present supplementary grounds of appeal if he so wished (see para. 35 above).

As regards the allegation that the applicant would have run a procedural risk by lodging an appeal which he may have wanted to withdraw upon obtaining the complete judgment of the Regional Court, it is to be noted in the first place that the public prosecutor did not file an appeal. Although there is no indication that the public prosecutor would have done so if the applicant had filed an appeal, it is clear that there are safeguards against the public prosecutor abusing his right to lodge an appeal for the purpose of frustrating the application of Section 424 para. 2 CCP (see para. 38 above).

For these reasons I cannot find that in the circumstances of the present case the applicant was unable to exercise usefully the right of appeal available to him.