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)
Full & Egal Universal Law Academy