CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 juillet 1995

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 23699/94                       by S.D.R.                       against the Netherlands        The European Commission of Human Rights (Second Chamber) sitting in private on 4 July 1995, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 4 March 1994 by S.D.R. against the Netherlands and registered on 17 March 1994 under file No. 23699/94 ;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      16 February 1995 and the observations in reply submitted by the      applicant on 15 March 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Dutch citizen, born in 1944, and resides at The Hague. Before the Commission he is represented by Mr. B.R. Angad Gaur, a lawyer practising in The Hague.        The facts of the case, as submitted by the parties, may be summarised as follows.   A.    The particular circumstances of the case        By summons of 23 September 1991 the applicant was summoned to appear before the Magistrate (Politierechter) at the Regional Court (Arrondissementsrechtbank) of The Hague on the charge of driving under the influence of alcohol. On 20 December 1991, following a hearing at which neither the applicant nor his lawyer had appeared, the Magistrate convicted the applicant of driving under the influence of alcohol and sentenced him to two weeks' imprisonment and twelve months' disqualification from driving a motor vehicle.        On 3 January 1992, the applicant filed an appeal against the Magistrate's judgment with the Court of Appeal (Gerechtshof) of The Hague. He was summoned to appear before the Court of Appeal on 13 January 1993.        On 13 January 1993, the applicant did not appear before the Court of Appeal. His lawyer, however, was present. The Court of Appeal declared the applicant in default of appearance. The applicant alleges that his lawyer was fully robed and, although the minutes of the hearing do not state this, asked for the Court of Appeal's permission to conduct the applicant's defence.        On 13 January 1993, the Court of Appeal quashed the Regional Court's judgment on technical grounds, convicted the applicant of driving under the influence of alcohol and sentenced him to two weeks' imprisonment and twelve months' disqualification from driving a motor vehicle.        In his appeal in cassation to the Supreme Court (Hoge Raad), the applicant complained that the Court of Appeal had not allowed his lawyer to conduct his defence in his absence. He invoked Article 6 of the Convention.        In its judgment of 30 November 1993, the Supreme Court rejected the applicant's appeal in cassation. It held, inter alia:   <translation>        "In cases where the accused has not appeared but his lawyer is      present at the beginning of the court hearing, the court may      proceed on the assumption that if the lawyer of the accused      wishes to act as such despite the absence of his client, he will      make this known to the court. As the record of the hearing of the      Court of Appeal contains nothing which might indicate that the      lawyer made it known to the Court of Appeal that he wished to act      in that capacity - his own presence cannot serve this purpose -      it must be assumed that he has failed to do so. Under these      circumstances the Court of Appeal - notwithstanding the quoted      treaty provisions and national law - was not obliged to allow the      lawyer to conduct the defence."        The applicant has not referred to any reason for his absence at the hearing of his case before the Court of Appeal, either before the domestic courts or before the Commission.   B.    Relevant domestic law and practice        The Netherlands Code of Criminal Procedure (Wetboek van Strafvordering) does not ensure the right of a lawyer to conduct the defence of an accused before a court, where the latter has been declared in default of appearance.        There are, however, according to the Netherlands Supreme Court's case-law, two situations in which a court must allow a lawyer to conduct the defence in the absence of the accused:   -     in cases concerning nationals of EU member states in which civil liability issues arise (Hoge Raad, judgment of 17 November 1981, N.J. 1982 nr. 269), and   -     in cases where there are compelling reasons (klemmende redenen) preventing the appearance of an accused at the hearing of his case (Hoge Raad, judgment of 26 February 1988, N.J. 1988 nr. 794) and where a lawyer has made an explicit request to that effect to the court (Hoge Raad, judgment of 14 November 1986, N.J. 1987 nr. 862 and judgment of 18 September 1989, N.J. 1990 nr. 145).   COMPLAINT        The applicant complains under Article 6 of the Convention that at the hearing before the Hague Court of Appeal, his lawyer was not allowed to conduct his defence in his absence and that he was thus deprived of a fair trial in the determination of the criminal charges against him.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 4 March 1994 and registered on 17 March 1994.        On 30 November 1994 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on its admissibility and merits.        The Government's written observations were submitted on 16 February 1995.   The applicant replied on 15 March 1995.   THE LAW        The applicant complains that in the determination of the criminal charges against him he did not receive a fair hearing as the Court of Appeal did not allow his lawyer to conduct the defence in his absence.        The applicant invokes Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention, which, insofar as relevant, provide:        "1.    In the determination of ... any criminal charge against      him, everyone is entitled to a fair ... hearing ... by a ...      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 ... ."        The Government submit that the facts in the case at issue are similar to those in the cases of Lala and Pelladoah in which the Court found a violation of Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention (Eur. Court H.R., Lala and Pelladoah judgments of 22 September 1994, Series A nos. 297-A and 297-B respectively). Following these judgments, counsel for an accused who has not appeared in court is now always given the opportunity to speak in his client's defence. The Government are also considering amending the law on this point.        In view of the above, the Government defer to the opinion of the Commission.        The applicant reiterates that it was obvious that the aim of his lawyer's fully robed presence at the hearing before the Court of Appeal was to conduct his defence. He maintains that the Court of Appeal unjustly did not allow his lawyer to do so.        The Commission notes that this application raises the same issues as the cases of Lala and Pelladoah (above-mentioned judgments of 22 September 1994, Series A nos. 297-A and 297-B).        Having regard to the parties' submissions and the case-law of the Convention organs, the Commission considers that the present application raises questions of fact and law which require an examination of the merits. This complaint cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.   Secretary to the Second Chamber       President of the Second Chamber          (M.-T. SCHOEPFER)                       (H. DANELIUS)