CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 20 mai 2003

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Costa , President ,   Mr   L. Loucaides ,   Mr   C. Bîrsan ,   Mr   K. Jungwiert ,   Mr   V. Butkevych ,   Mrs   W. Thomassen ,   Mrs   A. Mularoni,   judges , and   Mrs   S. Dollé , Section Registrar , Having regard to the above application introduced on 30   August 2001, Having deliberated, decides as follows:   THE FACTS The applicant, Mr Marco Riekwel, is a Netherlands national, who was born in 1967. He is represented before the Court by Mr L.C.M. Jurgens, a lawyer based in Amsterdam who is not licensed to practise but who provides legal assistance and representation in cases where representation by a licensed advocate is not prescribed by law. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 5 July 1997, at approximately 2.50 a.m., police officers in Rotterdam stopped a motor car and tested the driver’s breath for alcohol. There being an indication that the driver’s breath might contain more alcohol than was legally permitted, the driver was taken to a police station and subjected to a more precise test. This second test showed that the driver’s breath did in fact contain a higher proportion of alcohol than permitted. The driver of the car gave the applicant’s name. It appears from a police report dated after the event, which the applicant claims is inaccurate, that the driver of the car was found in possession of a driving licence or other identity document in the applicant’s name containing a photographic likeness of the bearer. The driver of the car confessed that he had drunk five glasses of beer. He was sent home with a summons to appear on 25 September 1997 before the single-judge chamber ( politierechter ) of the Regional Court ( arrondissementsrechtbank ) of Rotterdam on a drink-driving charge. No one appeared at the hearing on 25 September 1997. The applicant was convicted in absentia of drink-driving and sentenced to pay a fine of 800 Netherlands guilders (NLG). The applicant claims, essentially, that he only became aware of this when he was ordered to pay the fine. He lodged an appeal against his conviction and sentence to the Court of Appeal ( gerechtshof ) of The Hague. The Court of Appeal decided to consider the drink-driving charge and the charge of driving an uninsured car – of which the applicant had been convicted in separate proceedings – jointly. It held hearings on 24   November 1997, 25 August and 30 November 1998 and 1   March   1999, at which, for various reasons not relevant to the case before the Court, the applicant did not appear. At the hearing on 1 March 1999, the applicant’s counsel, who was present, pleaded on the applicant’s behalf that another person had in fact been arrested on 5 July 1997 and had fraudulently pretended to be the applicant. He invited the police officers who had been called as witnesses to identify the applicant from a series of photographs. The Court of Appeal, however, decided that the applicant’s presence in person was required to establish whether or not he was in fact the person arrested on 5 July 1997. A further hearing was set for 26 April 1999. By letter of 22 April 1999, the applicant informed the Court of Appeal that he did not intend to appear. He stated that he did not trust the police officers to make a correct identification except in a confrontation attended by sufficient safeguards, for example a line-up of himself and other persons of similar appearance. The hearing proceeded on 26 April 1999 in the applicant’s absence. The Court of Appeal gave judgment on 10 May 1999. It declared the applicant’s appeal against the first-instance conviction of drink-driving inadmissible as out of time. Its reasoning included the following: “In the opinion of the Court of Appeal the original summons for the [single-judge chamber of the Regional Court’s] hearing of 25 September 1997 was handed to the suspect in person on 5 July 1997. It follows that the suspect should have appealed within fourteen days of the judgment delivered on 25 September 1997. However, the suspect only appealed on 19 November 1997, so the suspect’s appeal must be declared inadmissible. The Court of Appeal is of the opinion that it was the suspect to whom the original summons was handed. The Court of Appeal considers it relevant in this respect that, as appears from the official report drawn up on 8 November 1997 by Police Sergeant S. ..., the suspect identified himself to the reporting police officers by means of an identity document bearing a photographic likeness resembling the suspect. The Court of Appeal has further found that the [record of] the interrogation of the suspect, to which he was subjected on 5 July 1997, is signed with a signature which in the Court of Appeal’s opinion is sufficiently similar to the one which the suspect has placed on the letter of authority with which he has authorised the lodging of an appeal ... and on the receipt belonging to the official record of the delivery of the notification of the pronouncement of the judgment of the single-judge chamber of the Regional Court ...” The applicant’s counsel, a licensed advocate, lodged an appeal on points of law ( cassatie ) to the Supreme Court ( Hoge Raad ) on the applicant’s behalf. Mr Jurgens took over the applicant’s representation from the advocate, it being possible at the time for any person duly authorised in writing to act before the Supreme Court in criminal cases, and gave his own address as the applicant’s elected domicile for correspondence. The Advocate General ( advocaat-generaal ) to the Supreme court submitted an advisory opinion to the Supreme Court on 8 May 2001. A copy was transmitted to the last known address of the applicant. However, as appears from the public records, the applicant had already moved to another country on 18 December 2000. The Supreme Court gave judgment on 19 June 2001 dismissing the applicant’s appeal. On 28 August 2001 the Registrar of the Criminal Division wrote to Mr   Jurgens in the following terms: “In the above case, in which you act as the representative of the suspect pursuant to a specific letter of authority, the Advocate General Jörg submitted an advisory opinion (enclosed) on 8 May 2001. This advisory opinion was sent to the suspect by letter of 9   May 2001, the latter being offered the   possibility to respond. This possibility was not made use of. Subsequently, the Supreme Court dismissed the appeal by its judgment of 19 June 2001. You have rightly pointed out to the administrative staff of the Criminal Division that you were not sent a copy of the advisory opinion, as was required by (former) Article   439 § 2 of the Code of Criminal Procedure. This lapse is regretted and I offer you my apologies for it. Now that the Supreme Court has given its irrevocable judgment ( onherroepelijk uitspraak heeft gedaan ), it would be entirely pointless to give you the opportunity to react at this stage. That will therefore not be done. Unfortunately, there is now nothing more to be done than to acknowledge that a mistake was made towards you which should not have been allowed to occur.    ...” COMPLAINTS The applicant makes two complaints under Article 6 of the Convention. Firstly, he complains that the Court of Appeal failed to discuss the alleged similarity of the various signatures at a public hearing. This deprived the defence of the opportunity to state its views on the matter. Furthermore, the Court of Appeal ought in any case to have obtained an expert opinion; it is the applicant’s position that judges normally lack the expertise needed to compare signatures. Secondly, he complains of having been denied the opportunity to respond to the advisory opinion of the Advocate General to the Supreme Court. He argues in this respect that the registry of the Supreme Court was aware that he was represented, and could and should have sent a copy of the advisory opinion to his representative. THE LAW The applicant complains under Article 6 § 1 of the Convention which, in its relevant part, provides as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 1.   The applicant’s first complaint is that the various signatures contained in the case-file of the domestic proceedings on which the Court of Appeal based its decision, one of which the applicant denies was his, were not compared at a public hearing, and that the Court of Appeal failed to order an expert investigation into the matter although it lacked the requisite expert knowledge itself. The Court notes that the Court of Appeal confined itself to deciding, in limine , on the admissibility of the applicant’s appeal. Even assuming that Article 6 § 1 is applicable to such decisions, the Court finds it sufficient in the present case that the Court of Appeal delivered its judgment after a hearing and on the basis of the information contained in the file before it. It is not the function of the European Court of Human Rights to substitute its own assessment of the facts and evidence for that of the national courts or to act as a fourth instance appeal (see, among many other examples, the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no.   247-B, § 34). Moreover, the Court finds no evidence in the case-file which might disclose any elements of unfairness or arbitrariness. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible under Article 35 § 4. 2.   The applicant’s second complaint is that, because of the failure of the registry of the Supreme Court to forward a copy of the Advocate General’s advisory opinion to his representative, he was denied the opportunity to respond to that opinion before the Supreme Court gave judgment. The Court is of the opinion that the applicant – whose representative at the relevant time was not a licensed advocate – might reasonably have been expected, either through his representative or in person, to ensure that his change of address was communicated to the registrar of the Supreme Court (cf. Hennings v. Germany , judgment of 16 December 1992, Series A no.   251-A, § 26). It follows that this part of the application also is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible under Article 35 § 4. For these reasons, the Court unanimously   Declares the application inadmissible.   S. Dollé   J.-P. Costa   Registrar   President