BENAHMED v. THE NETHERLANDS



                      AS TO THE ADMISSIBILITY OF

                      Application No. 34329/96

                      by Lyas Rachid Bruno BENAHMED

                      against the Netherlands

     The European Commission of Human Rights (Second Chamber) sitting

in private on 4 March 1998, the following members being present:

           MM    J.-C. GEUS, President

                 M.A. NOWICKI

                 G. JÖRUNDSSON

                 A. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H. DANELIUS

           Mrs   G.H. THUNE

           MM    F. MARTINEZ

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

                 E. BIELIUNAS

                 E.A. ALKEMA

                 A. ARABADJIEV

           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 10 October 1996

by Lyas Rachid Bruno BENAHMED against the Netherlands and registered

on 20 December 1996 under file No. 34329/96;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a Dutch national, born in 1972, and resides in

Amsterdam. Before the Commission he is represented by Mr G.P. Hamer,

a lawyer practising in Amsterdam.

     The facts of the case, as submitted by the applicant, may be

summarised as follows.

1. Particular circumstances of the case

     On 7 April 1993, the applicant was arrested and detained on

remand on suspicion of attempted theft and unlawful possession of a

fire arm. The police did not allow him to contact his regular lawyer,

Mr Hamer, despite the applicant's explicit request to be assisted by

Mr Hamer nor did the police inform any lawyer on call (piket-advocaat)

of the applicant's arrest and detention. The applicant was released on

9 April 1993.

     On 5 January 1994, the applicant was arrested and detained on

remand on suspicion of attempted manslaughter. During the initial phase

of this detention the applicant was not allowed to have any contacts

with the outside world with the exception of certain privileged

officials, including his lawyer. He was released at some unspecified

date in June 1994.

     By summons dated 18 February 1994, the applicant was ordered to

appear on 8 April 1994 before the Magistrate (politierechter) of the

Regional Court (Arrondissementsrechtbank) of Haarlem in connection with

the facts for which the applicant had been arrested on 7 April 1993.

This summons did not reach the applicant as it was sent to his official

home address at M. street in Amsterdam and as, at that time, he was

detained on remand without the right to have contacts with the outside

world. Also his lawyer was unaware that these criminal proceedings had

been instituted since the applicant had remained without legal

assistance at the time of his arrest and detention in April 1993.

     On 8 April 1994, following proceedings in absentia as neither the

applicant or his lawyer had appeared, the Magistrate convicted the

applicant of attempted theft and unlawful possession of a fire arm and

sentenced him to two months' imprisonment.

     On 2 June 1994, this judgment was served on the applicant in

person in the remand centre where he was detained. The applicant filed

an appeal with the Court of Appeal (Gerechtshof) of Amsterdam.

     At the hearing of the applicant's case before the Court of Appeal

on 10 May 1995 both the applicant and his lawyer were present. The

Court of Appeal heard the applicant and pleas for the prosecution and

the defence.

     By judgment of 24 May 1995, following adversarial proceedings,

the Court of Appeal quashed the judgment of 8 April 1994, convicted the

applicant of attempted theft and unlawful possession of a fire arm and

sentenced him to six weeks' imprisonment.

     The Court of Appeal rejected the argument raised by the defence

that the initial summons should be declared null and void and that the

case should be referred back to the Magistrate. The Court of Appeal

held on this point, inter alia, that there is no provision in the law

or any treaty to the effect that the judicial authorities, in a case

where an accused has a permanent place of residence, must verify

whether the accused is detained on other grounds. It further held that

the Magistrate had no reasons to take into account the possibility that

the applicant could be detained at the time of the hearing before the

Magistrate. The applicant filed an appeal in cassation with the Supreme

Court (Hoge Raad).

     By judgment of 11 June 1996, the Supreme Court rejected the

applicant's appeal in cassation. The Supreme Court accepted the grounds

on which the Court of Appeal had rejected the argument that the initial

summons should be declared null and void and that the case should be

referred back to the Magistrate.

2. Relevant domestic law

     The rules governing the procedure of the serving of judicial

notifications are set out in Articles 585 - 590 of the Code of Criminal

Procedure (Wetboek van Strafvordering, hereinafter "CCP").

     According to Article 585 para. 3 CCP summonses and notifications

(dagvaardingen en aanzeggingen) must be served (betekening). Pursuant

to Article 587 para. 1 CCP, a serving takes place by the delivery

(uitreiking) of a judicial communication (gerechtelijke mededeling) by

the postal services.

     Article 588 CCP, insofar as relevant, reads as follows:

     "1.   The serving takes place:

           a.    upon the person who has been lawfully deprived of his

                 liberty in the Netherlands in connection with the

                 criminal proceedings to which the judicial

                 notification relates: in person;

           b.    upon all others: in person or, in case the serving in

                 person is not prescribed and the communication is

                 presented in the Netherlands:

                 1*  to the address where the addressee is registered

                 in the basic personal data administration, or

                 2* if the addressee is not registered in the basic

                 personal data administration, to the permanent or

                 temporary domicile of the addressee, or

                 3*  if the address is not registered in the basic

                 personal data administration and a permanent or

                 temporary domicile is not known, to the Registrar of

                 the Regional Court before which or in whose judicial

                 district the case will be heard or has been heard

                 previously.

     2.    ...

     3.    Where in a situation referred to in paragraph 1, section b.

           under 1* or 2*,

           a.    the addressee is not found, the serving takes place by

                 delivery to the person

                 present at that address who declares himself willing

                 to transmit the document without delay to the

                 addressee;

           b.    nobody is found, the serving takes place by delivery

                 to the addressee or a person authorised by the

                 addressee at a place the address of which is indicated

                 in a written message which must be left behind;

           c.    the delivery has not taken place, the communication is

                 returned to the authority which issued it. When it

                 appears that the addressee on the day of presentation

                 and at least five days thereafter has been registered

                 in the basic personal data administration as residing

                 at the address indicated on the communication, the

                 communication shall subsequently be delivered to the

                 Registrar of the Regional Court before which or in

                 whose judicial district the case will be heard or has

                 been heard previously. The Registrar will then send

                 the communication without delay by regular mail to

                 that address and annotates this on the act of delivery

                 referred to in Article 589 .

     4.    ..."

Article 590 CCP, insofar as relevant, provides:

     "1.   The serving is null and void, where the delivery has not

           taken place in accordance with the conditions set out in

           Articles 588 paras. 1 and 3, and 589.

     2.    ...

     3.    Where the addressee is registered as resident in the basic

           personal data administration, whereas at the trial it

           appears that he resides in fact at another address, the

           judge may order the appearance of the suspect who has not

           appeared."

     Under Article 399 para. 1 CCP, an accused who has been convicted

in absentia in a final judgment (einduitspraak) by the first instance

court may file an objection (verzet). Such an objection entitles the

accused to a full retrial by the same court (Article 403 CCP). An

objection may not be filed by an accused who has the opportunity to

appeal to a higher court with jurisdiction as to both fact and law

(Article 399 para. 2 CCP). It follows from Article 399 para. 1 CCP that

no objection may be filed against a judgment in absentia given on

appeal.

COMPLAINT

     The applicant complains under Article 6 paras. 1 and 3 of the

Convention that he was harmed in his defence rights in that the

judicial authorities fell short of their obligation under the

Convention to secure that he was informed of the hearing of his case

before the Magistrate and thus provide him with the opportunity to

defend himself. He submits that, given the contents of his criminal

record, the authorities could have suspected that the applicant was

detained at the relevant time and/or have contacted his regular lawyer.

THE LAW

     The applicant complains under Article 6 paras. 1 and 3

(Art. 6-1, 6-3) of the Convention that he was harmed in his defence

rights in that the judicial authorities failed to inform him of the

hearing of his case before the Magistrate.

     Article 6 (Art. 6) of the Convention, insofar as relevant, reads:

     "1.   In the determination of ... any criminal charge against

     him, everyone is entitled to a fair ... hearing .... by a ...

     tribunal established by law. ...

     2.    ...

     3.    Everyone charged with a criminal offence has the following

     minimum rights:

           a.    to be informed promptly, in a language which he

     understands and in detail, of the nature and cause of the

     accusation against him;

           b.    to have adequate time ... for the preparation of his

     defence;

           c.    to defend himself in person or through legal

     assistance of his own choosing ... ;

     ...."

     The Commission recalls that the guarantees contained in paragraph

3 of Article 6 (Art. 6) of the Convention are constituent elements,

amongst others, of the general notion of a fair trial referred to in

Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court HR,

Hennings v. Germany judgment of 16 December 1992, Series A no. 251-A,

p. 11, para. 25) and that the object and purpose of Article 6 (Art. 6)

of the Convention taken as a whole show that a person "charged with a

criminal offence" is entitled to take part in the hearing of his case

and that the Contracting States must exercise diligence in order to

ensure that the rights guaranteed by this provision are enjoyed in an

effective manner (cf. Eur. Court HR, Colozza v. Italy judgment of

12 February 1985, Series A no. 89, pp. 14-15, paras. 27 and 28). The

Commission further recalls that an accused must be informed with

sufficient notice about the date and place of the trial (cf.

No. 8231/78, Dec. 6.3.82, D.R. 28, p. 5).

     The Commission notes that the summons to appear before the

Magistrate on 8 April 1994 never reached the applicant, as it  was sent

to the applicant's home address whereas he was detained at that time.

Consequently, the proceedings before the Magistrate resulted in the

applicant's conviction after proceedings held in absentia.

     However, the Commission further notes that, following the

applicant's appeal against his conviction by the Magistrate,

adversarial proceedings were held before the Court of Appeal. In its

judgment of 24 May 1995, the Court of Appeal quashed the Magistrate's

conviction in absentia.

     In these circumstances, the Commission considers that the

applicant can no longer claim to be a victim within the meaning of

Article 25 (Art. 25) of the Convention insofar as his complaint relates

to the proceedings in absentia before the Magistrate. The Commission

further finds no indication that the subsequent proceedings before the

Court of Appeal and the Supreme Court fell short of the requirements

of Article 6 (Art. 6) of the Convention as regards fairness of

proceedings.

     It follows that the application must be rejected as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

   M.-T. SCHOEPFER                              J.-C. GEUS

      Secretary                                  President

to the Second Chamber                      of the Second Chamber

 

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