Resolution CM/ResDH(2012)129[1]
Lalmahomed against Netherlands
Execution of the judgment of the European Court of Human Rights:
(Application No. 26036/08, judgment of 22/02/2011, final on 22/05/2011)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),
Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violation established (see document DH-DD(2012)740E);
Recalling that the respondent State’s obligation under Article 46, paragraph 1, of the Convention to abide to by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:
- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures preventing similar violations;
Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above mentioned obligation;
Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment and noting that no award of just satisfaction was made by the Court in the present case (see document DH-DD(2012)740E);
Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted;
DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination thereof.
Action Report of the Government of the Netherlands
on the implementation of the judgment of the ECtHR
in the case of LALMAHOMED v. the Netherlands
Application no. 26036/08, Judgment of 22 February 2011, Final 22 May 2011
Introduction
On 2 June 2008 Mr Goelzeer Lalmahomed (‘the applicant’) submitted an application to the European Court of Human Rights (‘the Court’) under Article 34 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’).
On 22 February 2011 the Court found there had been a violation of Article 6 § 1 in conjunction with Article 6 § 3 (c) of the Convention. In accordance with the standard classification procedure,1 the Government of the Netherlands wishes to present its action report, with a view to closure of the case by the Committee of Ministers.
Case description
Violation of the applicant’s right to a fair trial on account of the fact that the single-judge chamber of the Court of Appeal sitting as the President refused him leave to appeal, holding that the grounds for appeal were implausible, without having a full and thorough evaluation of the relevant factors (violation of Article 6 § 1 taken together with Article 6 § 3 (c)).
Individual measures
The Government of the Netherlands has not taken any additional individual measures following the Court’s judgment since the applicant is no longer suffering any consequences of the violation.
The applicant has the possibility to file an application for a retrial with the Supreme Court (Hoge Raad) of the Netherlands (article 457, paragraph 1 (3) of the Code of Criminal Procedure (Wetboek van Strafvordering)). According to article 458, paragraph 2, of the Code of Criminal Procedure, an application for a retrial should be filed with the Supreme Court within three months after the judgment of the European Court of Human Rights. The applicant has not filed such an application within that time limit.
General measures
The Dutch authorities consider that, given the direct effect of the Court’s judgments in the Netherlands, all authorities concerned are expected to align their practice with the present judgment. To this end, the judgment and commentary on the judgment have been published in several Dutch legal journals, including Nederlands Juristenblad (NJB 2011, no. 858), T. de Roos in European Human Rights Cases (EHRC 2011, 5, p. 878-879), M. de Werd ‘Verlof in 1 As set out in CM/Inf/DH(2010)45 and CM/Inf/DH(2010)37E strafzaken’ in het Nederlands Tijdschrift voor de Mensenrechten (NTM 2011, p. 575-583), T. de Roos in Strafblad (2011, p. 7-10) and L. van Lent in Delikt en Delinkwent (2011/50).
Furthermore, by letter of 1 September 2011, the Minister of Security and Justice brought the judgment to the attention of the chair of the Council for the Judiciary (Raad voor de Rechtspraak). In his letter, the Minister pointed out that, in certain cases, a more proactive investigative stance is necessary on the part of the court hearing an application for leave to appeal. The Minister also asked the chair to bring his letter to the attention of the National Consultative Committee of Criminal Law Sector Chairpersons (Landelijk Overleg Voorzitters
Strafsectoren).
Payment of Just satisfaction
The applicant has submitted no claim for just satisfaction.
Conclusion
The Government of the Netherlands believes that the measures taken have fulfilled the requirements that arise from the Court’s judgment and that as a result, similar violations in the future will be prevented.
The Hague, 6 August 2012
[1] Adopted by the Committee of Ministers on 26 September 2012 at the 1150th Meeting of the Ministers’ Deputies.
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