CEDH · CASELAW;REPORTS;ENG — 2 juillet 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 }                      EUROPEAN COMMISSION OF HUMAN RIGHTS                               SECOND CHAMBER                            Application No. 24205/94                                  Fehmi ALAGÖZ                                     against                                 the Netherlands                            REPORT OF THE COMMISSION                          (adopted on 2 July 1996)                                TABLE OF CONTENTS                                                                      Page   INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1     PART I   :   STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . 2     PART II :   SOLUTION REACHED . . . . . . . . . . . . . . . . . . . . 4                                INTRODUCTION   1.     This Report relates to the application introduced under Article 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by Mr. Fehmi Alagöz against the Netherlands on 12 July 1993.   It was registered on 26 May 1994 under file No. 24205/94.         The applicant was represented by Mrs. Judith Serrarens, a lawyer practising in Maastricht.         The respondent Government were represented by their Agent, Mr. Karel de Vey Mestdagh, of the Netherlands Ministry of Foreign Affairs.   2.     On 28 February 1996 the Commission (Second Chamber) declared the application admissible.   It then proceeded to carry out its task under Article 28 para. 1 of the Convention which provides as follows:         "In the event of the Commission accepting a petition referred to       it:         a.    it shall, with a view to ascertaining the facts, undertake       together with the representatives of the parties an examination       of the petition and, if need be, an investigation, for the       effective conduct of which the States concerned shall furnish all       necessary facilities, after an exchange of views with the       Commission;         b.    it shall at the same time place itself at the disposal of       the parties concerned with a view to securing a friendly       settlement of the matter on the basis of respect for Human Rights       as defined in this Convention."   3.     The Commission (Second Chamber) found that the parties had reached a friendly settlement of the case and on 2 July 1996 it adopted this Report, which, in accordance with Article 28 para. 2 of the Convention, is confined to a brief statement of the facts and of the solution reached.         The following members were present when the Report was adopted:              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                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                                   PART I                             STATEMENT OF THE FACTS     4.     The applicant is a Turkish citizen, born in 1951 and at present serving a prison sentence in Leeuwarden, the Netherlands.   5.     Following adversarial proceedings before the Regional Court (Arrondissementsrechtbank) of Zutphen and, subsequently, before the Court of Appeal (Gerechtshof) of Arnhem, the applicant was convicted on 31 March 1992 of drug offences and sentenced to twelve years' imprisonment. At that time, the applicant was being held in detention in a remand centre (huis van bewaring) in Arnhem.   6.     The applicant lodged an appeal in cassation with the Supreme Court (Hoge Raad) on 31 March 1992.   7.     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.   8.     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.   9.     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).   10.    Between 5 October 1992 and 27 January 1993, the applicant was detained in a penitentiary in Rotterdam, the Netherlands.   11.    On 2 February 1993, a hearing was held by the Supreme Court. Neither the applicant nor his lawyer was present.   12.    On 16 March 1993, the Procurator General (Procureur-Generaal) at 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.   13.    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.   14.    On 23 June 1993, a prison official informed the applicant that the Supreme Court had rejected his appeal in cassation.   15.    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.   16.    Before the Commission the applicant complained 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.                                   PART II                              SOLUTION REACHED   17.    Following the decision on the admissibility of the application, the Commission (Second Chamber) placed itself at the disposal of the parties with a view to securing a friendly settlement in accordance with Article 28 para. 1 (b) of the Convention and invited the parties to submit any proposals they wished to make.   18.    In accordance with the usual practice, the Chamber Secretary, acting on the Commission's instructions, contacted the parties to explore the possibilities of reaching a friendly settlement.   19.    By letter dated 1 April 1996, the applicant informed the Commission that he was willing to reach a friendly settlement and he submitted certain proposals to that end.   20.    On 24 April 1996, the Government responded to the proposals put forward by the applicant and expressed their willingness to agree to a friendly settlement according to which the execution of the applicant's prison sentence would be transferred to Turkey. The Government stipulated, however, that they were unable to guarantee that the transfer would take place shortly, since the speed of the proceedings was also dependent on the cooperation of the Turkish authorities. Moreover, the Government submitted that the transfer would be conducted in accordance with the standard procedure, including the necessary declaration of undesirability (ongewenst verklaring) of the applicant.   21.    By letter dated 15 May 1996, the applicant notified the Commission that a friendly settlement on the terms formulated by the Government was acceptable to him. He submitted a signed declaration stating that he would not take any legal proceedings in respect of a declaration of undesirability to be made against him. However, he stipulated that the Government should undertake to arrange his transfer to Turkey as soon as possible upon the adoption of the friendly settlement by the Commission.   22.    The Government informed the Commission on 21 May 1996 that they would prepare the necessary requests and documents in order to be able to act promptly as soon as the Commission had adopted its present Report.   23.    By letter of 20 June 1996, the applicant notified the Commission that he accepted the Government's undertaking expressed in their letter of 21 May 1996.   24.    At its session on 2 July 1996, the Commission noted that the parties had reached an agreement regarding the terms of a settlement. It further considered, having regard to Article 28 para. 1 (b) of the Convention, that the friendly settlement of the case had been secured on the basis of respect for Human Rights as defined in the Convention.   25.    For these reasons, the Commission adopted the present Report.     Secretary to the Second Chamber    President of the Second Chamber             (M.-T. SCHOEPFER)                     (H. DANELIUS)