Information Note on the Court’s case-law 204
February 2017
Hokkeling v. the Netherlands - 30749/12
Judgment 14.2.2017 [Section III]
Article 6
Article 6-3-c
Defence in person
Complete rehearing of case held in accused’s absence: violation
Facts – In May 2007 the applicant was found guilty of drug offences and causing grievous bodily harm resulting in death, and was sentenced to four years and six months’ imprisonment. Both he and the prosecution appealed. In March 2009, while his appeal was still pending, the applicant was released from prison in the Netherlands. Soon thereafter he was arrested and detained in Norway for further drug offences. On 18 June 2010 the appeal court in the Netherlands, following a complete rehearing of the case, convicted the applicant in his absence and increased his sentence to eight years’ imprisonment. In the Convention proceedings the applicant complained under Article 6 that he had been prevented from attending the hearing in the Netherlands in person.
Law – Article 6 § 1 and 3 (c): Where an appellate court is called upon to examine a case as to the facts and the law and to make a full assessment of the issue of guilt or innocence it should not determine the issue without a direct assessment of the evidence given in person by the accused. The refusal of the appeal court to consider measures that would have enabled the applicant to make use of his right to attend the hearing on the merits was all the more difficult to understand given that his sentence was increased to eight years, meaning that after returning to the Netherlands the applicant had to serve time in addition to the sentence that he had already completed. The Court agreed with the Government that the applicant’s arrest in Norway had been a direct consequence of his own behaviour and recognised as legitimate the interests of the victim’s surviving kin and of society as a whole in seeing that criminal proceedings against the applicant were brought to a timely conclusion. However, having regard to the prominent place which the right to a fair trial held in a democratic society, neither the applicant’s presence at hearings during the first instance proceedings or the active conduct of the defence by counsel could compensate for the absence of the applicant in person before the second-instance court.
Conclusion: violation (six votes to one).
Article 41: finding of a violation constituted sufficient just satisfaction.
(See also F.C.B. v. Italy, 12151/86, 28 August 1991)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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