The Committee of Ministers, under the terms of Article 54
(art. 54) of the Convention for the Protection of Human Rights and
Fundamental Freedoms (hereinafter referred to as "the Convention"),
Having regard to the judgment of the European Court of Human
Rights in the Pelladoah case delivered on 22 September 1994 and
transmitted the same day to the Committee of Ministers;
Recalling that the case originated in an application
(No. 16737/90) against the Netherlands, lodged with the European
Commission of Human Rights on 17 April 1990, under Article 25
(art. 25) of the Convention, by Mr Satyanund Pelladoah, a Mauritian
national, and that the Commission declared admissible the complaint
that he had not had a fair trial in that his counsel had not been
heard by the Court of Appeal;
Recalling that the case was brought before the Court by the
Commission on 12 July 1993 and by the Government of the Netherlands
on 30 August 1993;
Whereas in its judgment of 22 September 1994 the Court
unanimously:
- held that there had been a violation of Article 6,
paragraph 1 (art. 6-1), of the Convention taken together with
Article 6, paragraph 3.c (art. 6-3-c);
- held that the finding of a violation constituted in itself
sufficient just satisfaction;
- dismissed the remainder of the claim for just satisfaction;
Having regard to the Rules adopted by the Committee of
Ministers concerning the application of Article 54 (art. 54) of the
Convention;
Having invited the Government of the Netherlands to inform it
of the measures which had been taken in consequence of the judgment
of 22 September 1994, having regard to the Netherlands' obligation
under Article 53 (art. 53) of the Convention to abide by it;
Whereas, during the examination of the case by the Committee
of Ministers, the Government of the Netherlands gave the Committee
information about the measures taken in consequence of the
judgment, which information appears in the appendix to this
resolution,
Declares, after having taken note of the information supplied
by the Government of the Netherlands, that it has exercised its
functions under Article 54 (art. 54) of the Convention in this
case.
Appendix to Resolution DH (95) 241
Information provided by the Government of the Netherlands
during the examination of the Pelladoah case
by the Committee of Ministers
The judgment of the European Court of Human Rights has been
given wide publicity in the Netherlands. The Convention is
accepted by the courts to be directly applicable (to have direct
effect) in the domestic law. In two recent decisions concerned
with questions similar to those raised in the Pelladoah case
(Strafkammer decision of 6 December 1994 in the case against
Roby Dennis Ong-A-Fat (No. 98.306); Strafkammer decision of
13 December 1994 in the case against Abdorsa El Mernikh
(No. 98.354)), the Supreme Court (the Hoge Raad) has furthermore
found it justified, on the basis of the judgments of the European
Court in the Lala and Pelladoah cases, to change its earlier
case-law so as to conform with the jurisprudence of the European
Court. This new case-law has been confirmed in several other cases
(see Hoge Raad Strafkammer decisions of 10 January 1995 in the
cases against Mardoyi Andrada Lara and against Fokke Johannes
Stoker, Nos. 98.547 and 98.642, respectively). According to the
new case-law an accused who is absent from the public hearing to
which he has been summoned, has the right to have the defence
presented by counsel, even if the absence is not considered
justified.
In view of these developments the Government of the
Netherlands considers that there is no risk of any repetition of
the violation found by the European Court in the present case and
that it has, accordingly, fulfilled the Netherlands' obligations
under Article 53 (art. 53) of the Convention.
Full & Egal Universal Law Academy