EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 23737/94
M.A.A.A. V.S.
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 10 September 1996)
TABLE OF CONTENTS
Page
I. THE PARTIES. . . . . . . . . . . . . . . . . . . . . . .1
(paras. 1-3)
II. SUMMARY OF THE FACTS . . . . . . . . . . . . . . . . . .1
(paras. 4-9)
III. THE PROCEEDINGS BEFORE THE COMMISSION. . . . . . . . . .1
(paras. 10-22)
IV. THE DECISION OF THE COMMISSION . . . . . . . . . . . . .4
(paras. 23-24)
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION. . . . . . . . . .5
I. THE PARTIES
1. This Report, which is drawn up by the European Commission of
Human Rights (Second Chamber) in accordance with Article 30 para. 1 of
the Convention, concerns the application brought by Mario André Antonio
Alexander van Soest against the Netherlands.
2. In the proceedings before the Commission the applicant was
represented by Mr. H.G. Kersting, a lawyer practising in Amsterdam.
3. The respondent Government were represented by their Agent,
Mr. K. de Vey Mestdagh, of the Netherlands Ministry of Foreign Affairs.
II. SUMMARY OF THE FACTS
4. The facts of the case are set out in the Commission's decision
on admissibility of 4 July 1995, attached hereto as an appendix, and
can be summarised as follows:
5. On 21 October 1991, following a hearing at which neither the
applicant nor his lawyer had appeared, the Magistrate (Politierechter)
at the Regional Court (Arrondissementsrechtbank) of Amsterdam convicted
the applicant, in absentia, of theft and sentenced him to two months'
imprisonment.
6. The applicant filed an appeal against this judgment with the
Court of Appeal (Gerechtshof) of Amsterdam. At the hearing before the
Court of Appeal, which took place on 4 March 1993, the applicant did
not appear. His lawyer, however, was present. The Court of Appeal
declared the applicant in default of appearance and started its
examination. The applicant's lawyer was not provided with the
opportunity to conduct the defence of the applicant in view of the
latter's absence.
7. On 18 March 1993, the Court of Appeal quashed the Regional
Court's judgment on technical grounds, convicted the applicant of theft
and sentenced him to two months' imprisonment.
8. The Supreme Court (Hoge Raad) rejected the applicant's appeal in
cassation on 14 December 1993.
9. Before the Commission the applicant complains that his defence
lawyer was not allowed to conduct the defence in the absence of the
applicant. He invokes Article 6 paras. 1 and 3 (c) of the Convention.
III. THE PROCEEDINGS BEFORE THE COMMISSION
10. The application was introduced on 2 May 1994 and registered on
6 May 1994.
11. On 30 November 1994, the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
12. The Government's observations were submitted on 16 February 1995.
The applicant's representative informed the Commission on 28 April 1995
that the applicant did not wish to avail himself of the opportunity to
submit observations in reply.
13. On 4 July 1995, the Commission declared the applicant's complaint
under Article 6 paras. 1 and 3 (c) of the Convention admissible. It
declared inadmissible the remainder of the application.
14. The text of the Commission's decision on admissibility was sent
to the parties on 20 July 1995 and they were invited to submit such
further information or observations on the merits as they wished.
Neither party availed itself of this possibility.
15. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. On 30 August 1995, the Government submitted a
proposal for a friendly settlement which was transmitted to the
applicant for comments. No reply having been received, the applicant's
representative was informed by the Commission's Secretariat on
16 November 1995 that if no comments had been submitted by 1 December
1995 it would be assumed that the applicant saw no merit in the
securing of a friendly settlement. The applicant's representative did
not reply.
16. On 6 February 1996, the Secretariat informed the applicant's
representative that the letter of authority, required pursuant to Rule
43 para. 3 of the Commission's Rules of Procedure, had still not been
submitted. On the same day and by registered letter, the applicant was
sent a letter of authority to be signed and returned by him before
26 February 1996. The applicant was informed that his application could
be struck off the Commission's list of cases pursuant to Article 30
para. 1 (a) of the Convention.
17. On 29 February 1996, the applicant's representative informed the
Commission that the applicant had moved to a new address but that he
was not aware of this address. He requested an extension of three
months of the time-limit fixed for the purpose of the submission of the
letter of authority.
18. On 7 March 1996, the letter sent to the applicant on 6 February
1996 was returned to the Secretariat as the applicant had not been
present at the address provided in the application form and although
a notice of arrival of a registered letter had been left at this
address by the postal authorities, the applicant had not collected the
letter from the local post office.
19. By letter of 20 March 1996, the applicant's representative
informed the Commission of the address at which the applicant was
registered as living according to the Municipal Registers (Registers
van de Burgerlijke Stand) of Amsterdam. A copy of the Secretariat's
letter of 6 February 1996 was sent by registered mail to this address
on 25 March 1996. The applicant was requested to return the enclosed
letter of authority before 9 April 1996.
20. On 11 April 1996, the Commission decided to adjourn the
examination of the merits of the application in view of the fact that
the applicant's letter of authority had not yet been received. The
applicant's representative was requested on 10 May 1996 to inform the
Commission before 24 June 1996 whether or not a letter of authority
would be forthcoming. No reply has been received.
21. On 10 September 1996, the Commission (Second Chamber) adopted the
present Report, in accordance with Article 30 para. 1 in fine of the
Convention.
22. The following members were present when the Report was adopted:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
IV. THE DECISION OF THE COMMISSION
23. The Commission notes that no letter of authority as required by
Rule 43 para. 3 of the Commission's Rules of Procedure has been
submitted in the present case and that the applicant has failed to
respond to requests to provide the Commission with such a document.
24. Having regard to Article 30 para. 1 (a) of the Convention, the
Commission concludes that in the circumstances of the present case the
applicant does not intend to pursue his petition. It finds no special
circumstances regarding respect for human rights as defined in the
Convention which require examination of the application to be
continued, in accordance with Article 30 para. 1 in fine of the
Convention.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE THE APPLICATION NO. 23737/94 OFF ITS LIST OF
CASES;
ADOPTS THE PRESENT REPORT;
DECIDES TO SEND THE PRESENT REPORT to the Committee of Ministers
for information, to send it also to the parties' representatives
and to publish it.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy