AS TO THE ADMISSIBILITY OF
Application No. 22411/93
by A.Ö.
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 7 May 1993 by A.Ö.
against the Netherlands and registered on 4 August 1993 under file No.
22411/93;
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
24 February 1995 and the observations in reply submitted by the
applicant on 24 April 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish national, born in 1956, and is
currently detained in Rotterdam. Before the Commission he is
represented by Mr. J.I.M.G. Jahae, a lawyer practising in Amsterdam.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. The particular circumstances of the case
On 26 January 1990, the applicant was arrested and detained on
remand on suspicion of drug offences. On 14 November 1990 the Regional
Court (Arrondissementsrechtbank) of Rotterdam convicted him of drug
offences and sentenced him to six years' imprisonment.
The applicant appealed to the Court of Appeal (Gerechtshof) of
The Hague. On 25 November 1991, the Court of Appeal quashed the
judgment of the Regional Court, found the applicant guilty of drug
offences and sentenced him to seven years and six months' imprisonment
with deduction of the time spent in detention on remand.
The applicant filed an appeal in cassation with the Supreme Court
(Hoge Raad) within the legal time limit of fourteen days set for this
purpose.
The applicant had been in detention throughout the entire
proceedings. In December 1992 the applicant's lawyer requested the
Hague Court of Appeal, which remained competent to decide requests for
release from pre-trial detention pending the proceedings before the
Supreme Court, to suspend the applicant's detention on remand. However,
the lawyer was informed by the Registry of the Court of Appeal that
this court was no longer competent to examine the request, since the
applicant's appeal in cassation had been rejected.
The Supreme Court had in fact rejected the applicant's appeal in
cassation on 3 November 1992. The Supreme Court noted that the
applicant had not submitted any grounds of cassation and, after an ex
officio examination of the appeal, found no grounds on the basis of
which the judgment of 25 November 1991 should be quashed.
It appears that a notification pursuant to section 437 para. 1
of the Code of Criminal Procedure (Wetboek van Strafvordering), stating
that the hearing of the appeal in cassation before the Supreme Court
was set for 14 September 1992, was issued to a remand centre (huis van
bewaring) in Rotterdam for service on the applicant. It is not clear,
however, to which of the two remand centres in Rotterdam the
notification was sent. In any event, the notification was returned to
the Supreme Court as the person to whom it was addressed was unknown
in the remand centre concerned. The notification was subsequently sent,
according to the customary procedure, through the Hague Regional Court
to the applicant's private address, after this address had been
verified with the population registry of the municipality of Rotterdam.
Arguing that the failure to notify the applicant in person of the
hearing before the Supreme Court was contrary to the Dutch rules on
notification of hearings, the applicant's lawyer applied on
10 February 1993 for a revision (herziening). The Supreme Court
rejected this request on 28 September 1993, holding that if it had been
aware of the fact that at the time of the notification the applicant
was in detention this would not have resulted in an acquittal, the
discontinuation of the proceedings, the inadmissibility of the
prosecution or the application of a less severe penal provision, but
merely in an order to set a new date for the hearing before the Supreme
Court.
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 this 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 provided for in section 588 para. 1 (a) 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 of a violation of Article 6 paras. 1 and
3 (b) and (c) of the Convention in that he was not notified of the
forthcoming hearing of his case before the Supreme Court, as a result
of which he was unable to conduct his defence.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 7 May 1993 and registered on
4 August 1993.
On 14 May 1993 the Commission decided not to apply Rule 36 of the
Commission's Rules of Procedure.
On 30 November 1994 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
24 February 1995. The applicant replied on 24 April 1995.
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 (b) and (c) (Art. 6-1, 6-3-b, 6-3-c) of
the Convention.
Article 6 paras. 1 and 3 (b) and (c) (Art. 6-1, 6-3-b, 6-3-c)
provide, insofar as relevant, that:
"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:
...
b. to have adequate time and facilities for the preparation of
his defence;
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 as a result of an apparent
misunderstanding, the applicant's defence rights were not prejudiced
to such an extent as to constitute a contravention of Article 6 paras.
1 and 3 (b) and (c) (Art. 6-1, 6-3-b, 6-3-c) of the Convention.
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.
The Government argue moreover that, although it appears that the
applicant was in contact with his lawyer at the time the appeal in
cassation was introduced by the applicant himself, the applicant's
lawyer did not notify the Supreme Court that he was representing the
applicant, in which case he 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.
The applicant submits that his lawyer did not notify the Supreme
Court in advance of the fact that he was representing the applicant
since, in the lawyer's experience, he would only be informed by the
Supreme Court's registry that the case-file had not yet been received.
Instead, the applicant's lawyer waited for the applicant to be notified
of the date of the hearing, as required by law, at which time he would
have identified himself to the Court, would have received the case-file
and would have prepared the arguments underlying the appeal in
cassation.
It is true that the Supreme Court examines cases ex officio, but
in the applicant's opinion an appeal in cassation is examined more
thoroughly when grounds for the appeal have been submitted.
The Commission, having regard to the parties' submissions and the
case-law of the Convention organs, considers that the complaint under
Article 6 paras. 1 and 3 (b) and (c) (Art. 6-1, 6-3-b, 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