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)
Full & Egal Universal Law Academy