CEDH · CASELAW;REPORTS;ENG — 4 mai 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 16737/90                                    S.P.                                   against                               the Netherlands                          REPORT OF THE COMMISSION                           (adopted on 4 May 1993)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-7) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 8-13). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 14-18) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 19-37). . . . . . . . . . . . . . . . . . . . . . . . 3         A.    Particular circumstances of the case            (paras. 19-29) . . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant domestic law            (paras. 30-37) . . . . . . . . . . . . . . . . . . . . . 5   III.   OPINION OF THE COMMISSION       (paras. 38-62). . . . . . . . . . . . . . . . . . . . . . . . 6         A.    Complaint declared admissible            (para. 38) . . . . . . . . . . . . . . . . . . . . . . . 6         B.    Point at issue            (para. 39) . . . . . . . . . . . . . . . . . . . . . . . 6         C.    Article 6 of the Convention            (paras. 40-60) . . . . . . . . . . . . . . . . . . . . . 6         D.    Conclusion            (para. 61) . . . . . . . . . . . . . . . . . . . . . . . 9   APPENDIX I    :   HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . .10   APPENDIX II   :   DECISION ON THE ADMISSIBILITY OF                 THE APPLICATION . . . . . . . . . . . . . . . . . .11   I.     INTRODUCTION   1      The following is an outline of the case as submitted to the European Commission of Human Rights and of the procedure before the Commission.   A.     The application   2      The applicant is a Mauritian national, born in 1947, and resides at Quatre Bornes, Mauritius.   Before the Commission he is represented by Mr. Vincent Kraal, a lawyer practising in Amsterdam.   3      The application is directed against the Netherlands, whose Government are represented by their Agent, Mr. Karel de Vey Mestdagh of the Netherlands Ministry of Foreign Affairs.   4      On 21 August 1986 the Regional Court of Haarlem convicted the applicant of unintentional importation of heroin and sentenced him to six months' imprisonment.   5      On 5 February 1988 the Court of Appeal of Amsterdam quashed the judgment of 21 August 1986, convicted the applicant in absentia for intentional importation of heroin and sentenced him to nine years' imprisonment.   6      The Supreme Court rejected the applicant's appeal in cassation on 24 October 1989.   7      The applicant complains under Article 6 paras. 1 and 3(c) of the Convention that he was deprived of a fair trial in the determination of the criminal charges against him as he was convicted without having had the opportunity to defend himself through his counsel, since before the Court of Appeal his lawyer was not allowed to conduct his defence in his absence.   B.     The proceedings   8      The application was introduced on 17 April 1990 and registered on 18 June 1990.   9      On 8 November 1990 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application.   10     The Government's observations were submitted on 31 January 1991. The applicant submitted his observations in reply on 17 May 1991.   11     On 11 January 1993 the Commission declared the application admissible and the parties were invited, should they so desire, to submit further observations regarding the merits of the application.   12     By letter of 26 February 1993 the Government submitted further observations. No such observations were received from the applicant.   13     After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present report   14     The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  E. BUSUTTIL                  G. JÖRUNDSSON                  A. S. GÖZÜBÜYÜK                  A. WEITZEL                  J. C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ                  C. L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.F. REFFI                  M. NOWICKI   15     The text of the Report was adopted on 4 May 1993 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 1 of the Convention.   16     The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         (1)   to establish the facts, and         (2)   to state an opinion as to whether the facts            found disclose a breach by the State concerned            of its obligations under the Convention.   17     A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application forms Appendix II.   18     The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   19     On 27 December 1985 the applicant was arrested at Schiphol airport when entering the Netherlands, as about 20 kilogrammes of heroin and methaqualone had been found in his luggage.   20     The applicant was primarily charged with, either intentional or unintentional, importation of heroin into the Netherlands and, alternatively, with either intentional or unintentional possession of heroin.   21     On 21 August 1986 the Regional Court (Arrondissementsrechtbank) of Haarlem, after hearing the applicant, convicted him of unintentional importation of heroin, sentenced him to six months' imprisonment, lifted the order for his detention on remand and ordered his immediate release.   The applicant was subsequently expelled from the Netherlands.   22     Both the public prosecutor and the applicant filed an appeal against this judgment.   23     At the hearing of 10 February 1987, before the Court of Appeal (Gerechtshof) of Amsterdam, the applicant's lawyer requested the Court to be allowed to conduct the applicant's defence, as, in view of his place of residence, the applicant was unable to appear in person at the hearing.   The Court rejected this request, considering that no compelling reasons (dringende redenen) for the applicant's absence had become apparent, and continued its examination of the case. The Court subsequently declared the applicant in default of appearance and started the examination of the case.   24     In its judgment of 24 February 1987 the Court of Appeal stated that it had appeared during its deliberations that its examination had not been complete. The Court of Appeal allowed the procurator-general to add further documents to the case-file and decided to reopen its examination and to resume it in the course of a hearing on a later date.   25     On 20 November 1987 the Court of Appeal resumed the proceedings in a different composition and recommenced its examination of the case. At the beginning of the hearing the applicant's lawyer requested permission to represent (vertegenwoordigen) the applicant within the meaning of Section 270 of the Netherlands Code of Criminal Procedure (Wetboek van Strafvordering) in respect of the alternative charge of possession of heroin.   The Court rejected the request, considering that it had neither been stated nor appeared that the applicant had authorised the lawyer to represent him and as, in any event, it would first examine the principal charge of importation of heroin for which representation within the meaning of Section 270 of the Code of Criminal Procedure was not allowed, this being a criminal offence punishable by a prison sentence.   26     Following an adjournment, the Court of Appeal resumed its hearing on 22 January 1988, when the applicant's lawyer submitted a written authorisation to represent the applicant.   The Court again rejected the request for representation within the meaning of Section 270 of the Code of Criminal Procedure stating that it would first consider the principal charge for which representation was not allowed.   27     By judgment of 5 February 1988 the Court of Appeal quashed the Regional Court's judgment of 21 August 1986 on the basis of a different assessment of the evidence, convicted the applicant in absentia of intentional importation of heroin into the Netherlands and sentenced him to nine years' imprisonment with deduction of the time spent in custody.   28     The applicant's subsequent appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 24 October 1989.   In respect of the applicant's complaint that his lawyer's request of 10 February 1987 had been wrongly rejected the Supreme Court held that, as the Court of Appeal had recommenced its examination of the applicant's appeal on 20 November 1987, the rejection of this request could not entail the nullity of the judgment of 5 February 1988 which was based on this new examination.   In respect of the complaint that the lawyer's request of 20 November 1987 and 22 January 1988 to represent the applicant within the meaning of Section 270 of the Code of Criminal Procedure had been wrongly rejected the Supreme Court considered that, as the first charge to be heard was the principal charge, which is punishable by a prison sentence, the Court of Appeal's decision to reject the request for representation was well-founded.   B.     Relevant domestic law and practice   29     Under Section 270 of the Code of Criminal Procedure a person accused of an offence not punishable by a prison sentence has the possibility, when he does not wish to appear in person at the court's hearing of his case, to have himself represented by a lawyer authorised to act in his name (vertegenwoordiging).   30     The court is free to allow or to reject the representation. If it rejects such a request, the court must adjourn its hearing in order to provide the accused with an opportunity to attend the hearing of his case in person.   31     A representative cannot act as defence counsel, although only a lawyer can act as either. According to the Supreme Court the same lawyer cannot act both as a representative and a defence counsel in the same proceedings. These functions are considered incompatible (Hoge Raad, judgment of 25 April 1989, N.J. 1990 nr. 91).   32     Under the Netherlands Code of Criminal Procedure a counsel is not entitled to defend a person accused of having committed an offence at the trial, where the latter has been declared in default of appearance.   33     There are, however, according to the Netherlands Supreme Court's case-law, two situations in which a court must allow counsel to conduct the defence in the absence of the accused:   -      in cases concerning nationals of EC member states in which civil liability issues arise (Hoge Raad, judgment of 17 November 1981, N.J. 1982 nr. 269), and   -      in cases where at the beginning of a court hearing counsel requests the court to be allowed to conduct the accused's defence and there are, in the court's opinion, compelling reasons (klemmende redenen) preventing the appearance of the accused at the hearing of his case, but the court sees no reasons to suspend the hearing in order to enable the accused to appear at a hearing on another date (Hoge Raad, judgment of 26 February 1980, N.J. 1980 nr. 246 and judgment of 16 February 1988, N.J. 1988 nr. 794; judgment of 14 November 1986, N.J. 1987 nr. 862 and judgment of 18 September 1989, N.J. 1990 nr. 145).   34      In a judgment of 26 June 1990 the Supreme Court considered that the Court of Appeal could not, in view of the defence counsel's arguments that the accused at issue resided in France and that the costs of travel to and stay in the Netherlands were considerable, reject counsel's request to defend the absent accused without giving any reasons (N.J. 1991 nr. 174).   35     Under Section 399 of the Code of Criminal Procedure it is possible to file an objection (verzet) against a final conviction in absentia.   36     An objection can be filed within fourteen days after the pronouncement of the judgment, when the summons has been notified in person and otherwise within fourteen days after the occurrence of a situation from which it is clear that a person has become aware of his conviction.   37     No objection can be raised against a conviction in absentia by a first instance court against which an appeal may be lodged, or against a conviction in absentia on appeal.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   38     The Commission has declared admissible the applicant's complaint that he was convicted in absentia in proceedings in which his counsel's request to defend him was refused.   B.     Point at issue   39     Accordingly, the issue to be determined is whether there has been a violation of Article 6 paras. 1 and 3(c) (Art. 6-1, 6-3-c) of the Convention, as alleged by the applicant.   C.     Article 6 (Art. 6) of the Convention   40     Article 6 paras. 1 and 3(c) (Art. 6-1, 6-3-c), insofar as relevant, read as follows:         "1.   In the determination (...) of any criminal charge       against him, everyone is entitled to a fair and public       hearing (...) by an independent and impartial tribunal       (...)         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 (...);       (...)."   41     The Government state that representation pursuant to Section 270 of the Code of Criminal Procedure is possible in relatively minor criminal cases concerning offences not punishable by a prison sentence and that, in practice it is admitted in cases where the facts are scarcely disputed, if at all, and in which an accused's appearance in person is not deemed necessary for the trial.   42     The Government submit that, apart from regulations pertaining to minors, Dutch law contains no obligation for an accused to appear at the court hearing of his case. If an accused chooses to be absent from the hearing, he also renounces the possibility of defence. In that case it is by no means a forgone conclusion that the accused may arrange to be defended in absentia by counsel. However, taking account of the Convention, criteria have been developed in Dutch case-law, in respect of hearings involving an offence punishable by a prison sentence, for allowing counsel to act as such in cases where the accused cannot be present in court. Counsel may act on the accused's behalf if the court finds that compelling reasons prevent the accused from appearing at the session and if the court finds no grounds to adjourn the hearing.   43     The Government state that on appeal the procurator-general (procureur-generaal) requested a twelve years' prison sentence for intentional importation of heroin. It is not beyond the bounds of probability that the risk that the applicant would be imprisoned immediately when he would appear at the hearing before the Court of Appeal was the reason for his failure to appear in court, given that he would have had reason to suspect that the Court of Appeal might quash the Regional Court's judgment and impose a different sentence.   44     With reference to the Supreme Court's judgment of 24 October 1989, the Government submit that representation within the meaning of Section 270 of the Code of Criminal Procedure was not possible since the offence at issue is punishable by a prison sentence. At the hearings of 20 November 1987 and 22 January 1988 before the Court of Appeal, the applicant's counsel did not argue that compelling reasons prevented the applicant from attending his trial before the Court of Appeal. Therefore the Supreme Court could only examine the rejection of counsel's request to represent him pursuant to Section 270 and could not examine the Court of Appeal's first decision of 10 February 1987, when it rejected counsel's request - invoking the existence of compelling reasons for the applicant's absence - to defend the applicant as the Court of Appeal had changed its composition and had recommenced its examination.   45      The Government submit that the applicant's residence abroad did not justify his absence from his trial. The Netherlands did not prevent him from attending his trial in the Netherlands.   46     The applicant submits that not only the public prosecutor but also he filed an appeal against the decision of the Regional Court of 21 August 1986 and that he provided his lawyer with a written authorisation to represent him in the appeal proceedings.   47     He submits that the Court of Appeal should have adjourned its examination pursuant to Section 270 following the rejection of his counsel's request. He was entitled to assume that, following two adjournments attributable to the public prosecution, the Court of Appeal would not suddenly deal with his case in his absence without an adjournment, as he could not be expected to make the long and expensive journey from Mauritius to Amsterdam, running the risk that the case might then not be dealt with.   48     The applicant contests the Government's allegation that he did not appear before the Court of Appeal for fear of immediate arrest. He submits that a request for his immediate arrest would have been rejected by the court.   49     The applicant finally submits that the compelling reason for his absence at hearing of his case was not just the fact that he was residing abroad, but that he resides in Mauritius, which lies at a considerable distance from Amsterdam and that he should have been able to rely on his counsel for his defence or at least expect, when representation was refused, that the hearing would be adjourned.   50     The Commission recalls that the guarantees in para. 3 of Article 6 (Art. 6-3) of the Convention are specific aspects of the right to a fair trial set forth in para. 1 of this provision (cf. Eur. Court H.R., Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, p. 31, para. 67). It will therefore examine the applicant's complaint on the basis of these provisions taken together.   51     The Commission notes that the Regional Court, following proceedings the applicant attended in person, in its judgment of 21 August 1986 convicted the applicant of unintentional importation of heroin, sentenced him to six months' imprisonment and ordered his release, and that he was subsequently expelled from the Netherlands. The Commission further notes that both the public prosecutor and the applicant, assisted by his counsel, filed an appeal against the judgment of 21 August 1986, and that on 5 February 1988 the Court of Appeal of Amsterdam quashed the judgment of 21 August 1986, convicted the applicant in absentia of intentional importation of heroin and sentenced him to nine years' imprisonment.   52     The Commission recalls that the guarantees set forth in Article 6 (Art. 6) of the Convention are in principle applicable to appeal proceedings (cf. Eur. Court H.R., Delcourt judgment of 7 January 1970, Series A no. 11, pp. 13-15, para. 25).   53     The Commission notes that the applicant's counsel was present at the hearings before the Court of Appeal and that he repeatedly expressed the wish to conduct the applicant's defence.   54     The Commission further notes that the case concerned serious charges and that the Court of Appeal was, inter alia, called upon to examine the appeal by the prosecution seeking a conviction for intentional importation of heroin and requesting a sentence of twelve years' imprisonment, whilst the applicant in first instance had been convicted of unintentional importation of heroin and sentenced to six months' imprisonment.   55     Under Article 6 para. 3 (c) (Art. 6-3-c) everyone charged with a criminal offence may defend himself in person or "through legal assistance of his own choosing" ("avoir l'assistance d'un défenseur de son choix").   The applicant did not defend himself in person at his trial before the Court of Appeal, since he was residing in Mauritius. He claims that he was denied the right to defend himself "through legal assistance of his own choosing", i.e. through counsel who was present for him at the trial before the Court of Appeal.   56     The Commission does not consider that the right to defend oneself through legal assistance can only be invoked by defendants who are themselves present at their trial. Nor does it find that a distinction can be made, as regards entitlement to this right, between defendants who are duly represented pursuant to Section 270 of the Code of Criminal Procedure and defendants who are duly represented by defence counsel.   57     It follows that, although he failed to appear before the Court of Appeal, the applicant was entitled under Article 6 para. 3 (c) (Art. 6-3-c) to "legal assistance of his own choosing" at his trial before the Court of Appeal.   Therefore, in order to comply with this provision, the Court of Appeal should have allowed counsel for the applicant, who was present in the applicant's place, to make submissions on the applicant's behalf.   However, in accordance with Dutch rules on representation pursuant to Section 270 of the Code of Criminal Procedure, this was not done and the applicant was subsequently found to be in default of appearance.   58     The Commission notes that the applicant could file an appeal in cassation to the Supreme Court, of which opportunity he did in fact avail himself. However this appeal was limited to points of law and, therefore, did not lead to a fresh determination of the criminal charges against him.   59     The Commission is of the opinion that the position adopted in Dutch law, that an accused who does not attend his trial in person in principle loses his right to defend himself through his counsel, is incompatible with the respect for the fundamental guarantees which every person charged with a criminal offence should enjoy. The need to secure the attendance of an accused at the trial of his case cannot justify proceeding to judgment against him without hearing the defence he wishes to put forward through his counsel.   60     Considering the case under the general "fair hearing" clause of Article 6 para. 1 (Art. 6-1) the Commission notes that the Court of Appeal, after having quashed the conviction by the Regional Court, convicted and sentenced the applicant after having heard the procurator-general but without having given the floor to counsel for the defence, who was present at the respective hearings. This infringed the principle of equality of arms, an essential element of the right to a fair trial. Moreover, having regard to the prominent place the right to a fair trial holds in a democratic society, this infringement can again not be justified by the need to secure the defendant's attendance at the hearing of his case.   D.     Conclusion   61     The Commission concludes unanimously that there has been a violation of Article 6 para. 1 in conjunction with Article 6 para. 3(c) (Art. 6-1+6-3-c) of the Convention.   Secretary to the Commission              President of the Commission      (H.C. Krüger)                              (C.A. Nørgaard)                                 APPENDIX I                           HISTORY OF PROCEEDINGS   Date                                   Item ___________________________________________________________________   17 April 1990                          Introduction of application   18 June 1990                           Registration of application   Examination of admissibility   9 November 1990                        Commission's decision to                                       invite the Government to                                       submit their observations                                       on the admissibility and                                       merits of the application   31 January 1991                        Government's observations   17 May 1991                            Applicant's observations in                                       reply   11 January 1993                        Commission's decision to                                       declare the applicantion                                       admissible.Commission's                                       decision to invite the parties,                                       should they so desire, to                                       submit further observations on                                       the merits of the application   Examination of the merits   26 February 1993                       Government's further                                       observations   4 May 1993                             Commission's deliberations                                       on the merits, final vote                                       and adoption of the Report