CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 février 1996

.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. 24205/94                       by Fehmi ALAGÖZ                       against the Netherlands        The European Commission of Human Rights (Second Chamber) sitting in private on 28 February 1996, 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                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              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 12 July 1993 by Fehmi ALAGÖZ against the Netherlands and registered on 26 May 1994 under file No. 24205/94;        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      21 July 1995 and the observations in reply submitted by the      applicant on 10 October 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Turkish national, born in 1951. He is presently serving a prison sentence in Leeuwarden, the Netherlands. Before the Commission he is represented by Mrs. Judith Serrarens, a lawyer practising in Maastricht, the Netherlands.        The facts of the case, as submitted by the parties, may be summarised as follows.   A.    The particular circumstances of the case        The applicant was arrested in March 1991 and subsequently detained on remand. On 18 October 1991, following adversarial proceedings, he was convicted of drug offences by the Regional Court (Arrondissementsrechtbank) of Zutphen, which imposed a prison sentence. He lodged an appeal against his conviction with the Court of Appeal (Gerechtshof) of Arnhem.        Following adversarial proceedings, the Court of Appeal convicted the applicant on 31 March 1992 of drug offences and sentenced him to twelve years' imprisonment. At that time, the applicant was in detention in a remand centre (huis van bewaring) in Arnhem.        The applicant lodged an appeal in cassation with the Supreme Court (Hoge Raad) on 31 March 1992.        On 2 February 1993, a hearing was held by the Supreme Court. Neither the applicant nor his lawyer was present.        On 16 March 1993, the Procurator General (Procureur-Generaal) to the Supreme Court submitted his written conclusions. He stated that no grounds for the applicant's appeal in cassation had been submitted and that he had found no grounds on which the Court of Appeal's judgment should be quashed.        On 18 May 1993, the Supreme Court rejected the applicant's appeal in cassation. Noting that the applicant had not submitted grounds for his appeal in cassation and after an examination ex officio of the appeal, the Supreme Court stated that it found no grounds on which the Court of Appeal's judgment should be quashed.        On 23 June 1993, a prison official informed the applicant that the Supreme Court had rejected his appeal in cassation.        A notification (aanzegging) within the meaning of Section 437 para. 1 of the Code of Criminal Procedure (Wetboek van Strafvordering), informing the applicant that his case would be heard by the Supreme Court on 2 February 1993, never reached the applicant. In October 1992, the office of the Procurator General at the Supreme Court contacted the Arnhem remand centre where the applicant was being held at the time when the appeal in cassation had been lodged on his behalf. The office was informed that the applicant was no longer being held in this institution. The Supreme Court then contacted the office of the Procurator General at the Arnhem Court of Appeal, which informed it that the applicant was not being held in any other remand centre in the Netherlands.        Staff at the office of the Procurator General at the Supreme Court subsequently made enquiries at the National Population Register Inspectorate (Rijksinspectie van het Bevolkingsregister) to find out whether the Inspectorate knew of any address in the Netherlands at which the applicant was registered. On 30 October 1992, the Inspectorate responded to this question in the negative.        On 26 October 1992, the notification was presented to the Registrar (griffier) of the Hague Regional Court, pursuant to section 588 para. 5 of the Code of Criminal Procedure. On the notification it was written that the applicant had at present no known place of residence or abode in the Netherlands ("tzbwovhtl", i.e. thans zonder bekende woon- of verblijfplaats hier te lande).        Between 5 October 1992 and 27 January 1993, the applicant was detained in a penitentiary in Rotterdam, the Netherlands.        On 30 June 1994, the applicant started civil summary proceedings (kort geding) against the State of the Netherlands, requesting his immediate release on account of the judicial authorities' failure to inform him of the date of the hearing of his case by the Supreme Court. A hearing took place before the President of the Regional Court of The Hague. The applicant stated, inter alia, that he would have liked to submit grounds for his appeal in cassation, in particular concerning the way in which evidence against him had been gathered. The applicant's request was rejected.   B.    Relevant domestic law        Pursuant to section 437 of the Code of Criminal Procedure (CCP) the defendant must be notified of the impending hearing of his case before the Supreme Court at least eight days before the date of the hearing. If the defendant has not been properly notified, the Supreme Court will order that a new date be set for the hearing.        Section 585 para. 3 CCP provides that the notification should be served (betekend). If the judicial document to be handed over relates to the criminal case for which the defendant has been deprived of his liberty by law, the document should be served on the defendant in person, as laid down in section 588 para. 1 (a) CCP.        However, if the defendant has no known place of residence or abode in the Netherlands, the notification is presented to the Registrar of the Regional Court which dealt with or will deal with the case, or the Registrar of the Regional Court in whose district the case was dealt with or will be dealt with (section 588 para. 5 CCP). If the defendant resides abroad at a known address, the prosecution department will send the notification to that address (section 588 para. 6 CCP).        A defendant who has lodged an appeal in cassation may submit grounds for his appeal in writing until the day the Supreme Court is scheduled to hear the case, and/or orally during the hearing before the Supreme Court (sections 433 para. 2 and 439 CCP), provided that these grounds are also set out in a written document which must be submitted to the Supreme Court before the closure of its hearing.   COMPLAINTS        The applicant complains that the failure to notify him of the hearing of his case by the Supreme Court violated his right to a fair trial under Article 6 paras. 1 and 3 (c) of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 12 July 1993 and registered on 26 May 1994.        On 6 April 1995, the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 21 July 1995, after an extension of the time-limit fixed for that purpose.   The applicant replied on 10 October 1995, also after an extension of the time-limit.        On 5 December 1995, the Commission granted the applicant legal aid.   THE LAW        The applicant complains that the failure to notify him properly of the hearing of his case before the Supreme Court violated his rights under Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention.        Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c), insofar as relevant, provide:        "1.    In the determination of ... any criminal charge against      him, everyone is entitled to a fair ... hearing ... by an      independent and impartial tribunal established by law. ...        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, despite the fact that the notification did not reach the applicant for reasons which can no longer be precisely ascertained, the applicant's defence rights were not prejudiced to such an extent as to constitute a contravention of Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c).        In this respect the Government contend that the applicant was represented at first instance and on appeal by legal counsel and that the facts of the case were not re-examined in cassation where the Supreme Court solely examines whether the law has been applied correctly and the correct procedure has been observed. Furthermore, the Supreme Court checks as a matter of course to see whether there are any defects in the disputed judgment.        In the second place the Government state that up to the moment of delivery of the notification the applicant had been detained in an unusually large number of different places as a result of the fact that the risk of his escape and the risk he posed to the community were assessed to be very high. These transfers were therefore a result of his own conduct. The Government explain that it may happen that the most recent transfer of a detained person is not immediately incorporated into the centrally administered files at the Ministry of Justice.        Another factor which may have made it more difficult to trace the applicant was the fact that he had indicated different dates of birth and that he is also known to the Ministry of Justice by an alias.        The Government submit that limits may be set to the length to which the judicial authorities may be expected to go in order to expedite criminal proceedings. In their opinion, the office of the Procurator General at the Supreme Court tried sufficiently hard to deliver the notification of the hearing to the applicant in person.        It is finally submitted by the Government that the applicant's lawyer did not notify the Supreme Court that she was representing the applicant and that, if she had done so, she would have received a copy of the notification. Neither did the applicant's lawyer enquire about the date on which the appeal in cassation was to be heard. Moreover, the applicant and his lawyer were never deprived of the opportunity to submit written grounds for appeal in cassation. In view of the fact that an appellant in cassation may be notified of the date of the hearing as late as eight days before it is due to take place, it would in any event have been wiser not to postpone the submission of these grounds.        The applicant replies that statutory provisions allow for the submission of grounds for appeal in cassation and it can therefore not be held, as the Government appear to suggest, that these grounds do not serve any real purpose in light of the fact that in any event the Supreme Court examines an appeal ex officio.        Furthermore, the applicant does not agree that the office of the Procurator General at the Supreme Court tried sufficiently hard to serve the notification on him in person. In this respect he contends that it may be expected of judicial authorities to be able at all times to establish where a detained person is being held. In addition, the applicant had already been detained at a Rotterdam penitentiary for three weeks at the time attempts were made to establish his whereabouts. Given that other judicial documents have successfully been served on him, the applicant does not see how the failure to notify him of the hearing before the Supreme Court could have been due to a confusion over his date of birth or his name.        The applicant adds that no rule of law obliges a lawyer to notify the Supreme Court of the fact that he is representing an appellant in cassation before the notification of the hearing has been received. In practice this notification is served more than eight days before the hearing as is illustrated in the present case where the notification was issued more than two months before the hearing was due to take place.        The Commission, having regard to the parties' submissions and the case-law of the Convention organs, considers that the complaint under Article 6 para. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention raises questions of fact and law which require an examination of the merits. The application 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)