EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 25514/94
Guno Vincentius Menckeberg
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 16 October 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-38). . . . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 16-30) . . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law and practice
(paras. 31-38) . . . . . . . . . . . . . . . . . . . . . 5
III. OPINION OF THE COMMISSION
(paras. 39-72). . . . . . . . . . . . . . . . . . . . . . . . 7
A. Complaints declared admissible
(para. 39) . . . . . . . . . . . . . . . . . . . . . . . 7
B. Points at issue
(para. 40) . . . . . . . . . . . . . . . . . . . . . . . 7
C. As regards Article 6 paras. 1 and 3 (c) of the Convention
in respect of the applicant's absence from the hearing on
appeal
(paras. 41-53) . . . . . . . . . . . . . . . . . . . . . 7
CONCLUSION
(para. 54) . . . . . . . . . . . . . . . . . . . . . . . 9
D. As regards Article 6 paras. 1 and 3 (c) of the Convention
in respect of the refusal to allow the applicant's counsel
to conduct the defence in the applicant's absence
(paras. 55-63) . . . . . . . . . . . . . . . . . . . . .10
CONCLUSION
(para. 64) . . . . . . . . . . . . . . . . . . . . . . .11
TABLE OF CONTENTS
Page
E. As regards Article 6 paras. 1 and 3 (d) of the Convention
(paras. 65-68) . . . . . . . . . . . . . . . . . . . . .11
CONCLUSION
(para. 69) . . . . . . . . . . . . . . . . . . . . . . .11
F. Recapitulation
(paras. 70-72) . . . . . . . . . . . . . . . . . . . . .12
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . .13
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Dutch citizen, born in 1962 and resident in
Amsterdam. He was represented before the Commission by Mr. G. Meijers,
a lawyer practising in Amsterdam.
3. The application is directed against the Netherlands. The
respondent Government were represented by their Agent,
Mr. K. de Vey Mestdagh, of the Netherlands Ministry of Foreign Affairs.
4. The case concerns the applicant's conviction in criminal
proceedings in which the summons for the hearing before the Court of
Appeal had not reached him and in which his lawyer was not allowed to
conduct the defence or to question witnesses. The applicant invokes
Article 6 paras. 1 and 3 (c) and (d) of the Convention.
B. The proceedings
5. The application was introduced on 6 October 1994 and registered
on 2 November 1994.
6. On 6 April 1995 the Commission (Second Chamber) 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.
7. The Government's observations were submitted on 11 July 1995
after an extension of the time-limit fixed for this purpose. The
applicant replied on 12 September 1995.
8. On 17 January 1996 the Commission declared admissible the
applicant's complaints under Article 6 paras. 1 and 3 (c) and (d) of
the Convention. It declared inadmissible the remainder of the
application.
9. The text of the Commission's decision on admissibility was sent
to the parties on 24 January 1996 and they were invited to submit such
further information or observations on the merits as they wished.
Neither party availed itself of this possibility.
10. 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. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission (Second
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
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
12. The text of this Report was adopted on 16 October 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. The Commission's decision on the admissibility of the application
is annexed hereto.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. On 6 July 1992, the applicant and one or more other persons were
arrested in flagrante delicto when they attempted to extort somebody.
The applicant was detained on remand. He was subsequently summoned to
appear on 21 July 1992 before the Magistrate (Politierechter) of the
Regional Court (Arrondissementsrechtbank) of Amsterdam on charges of
attempted extortion committed in association with one or more other
persons.
17. On 21 July 1992, following adversarial proceedings in which the
applicant was represented by the assigned legal aid lawyer Mr. L.B.,
the Magistrate of the Regional Court acquitted the applicant and
ordered his immediate release. On 27 July 1992, the public prosecutor
lodged an appeal against this judgment with the Court of Appeal
(Gerechtshof) of Amsterdam.
18. On 31 July 1992, pursuant to Section 409 para. 2 of the Code of
Criminal Procedure (Wetboek van Strafvordering; hereinafter referred
to as "CCP"), an attempt was made to notify the applicant of the public
prosecutor's appeal. This unsuccessful attempt was made at the
applicant's official place of residence, i.e. the address at which he
was registered at that moment with the Registry Office
(Bevolkingsregister) of Amsterdam.
19. On 6 October 1992, in the prison at Heerhugowaard, where he was
detained in connection with another criminal case, the applicant was
notified in person that the public prosecutor had lodged an appeal
against the acquittal.
20. On 5 February 1993, an unsuccessful attempt was made at the
applicant's official place of residence to serve him with the summons
to appear before the Court of Appeal. According to the Registry Office
of Amsterdam, the address at which the attempt was made, was still the
applicant's official place of residence. Pursuant to Section 588
para. 4 of the CCP, the summons was, on 15 February 1993, presented to
the Registrar (griffier) of the Regional Court.
21. On 4 March 1993, Mr. L.B., who had also represented the applicant
in the first instance proceedings, informed the Court of Appeal that
he had been assigned as the applicant's lawyer and requested to be
provided with the applicant's case-file.
22. In the morning of 16 March 1993, the Court of Appeal started its
examination of the case. The applicant was not present but his lawyer
was. The lawyer stated that he did not know why the applicant had not
appeared. The Court of Appeal declared the applicant in default of
appearance (verstek) and started its examination. At the request of the
Procurator General (Procureur-Generaal), the Court of Appeal adjourned
its examination until 2.30 p.m. that same day in order to hear the
police officers D. and T. as witnesses.
23. At 14.30 hours, the Court of Appeal resumed its examination. The
applicant had still not appeared. The applicant's lawyer, who could not
provide the Court of Appeal with compelling reasons (klemmende redenen)
for the applicant's absence, asked for leave to conduct the defence in
the applicant's absence. The request was rejected. The Court of Appeal
subsequently heard the two witnesses. The applicant's lawyer was not
allowed to put any questions to them.
24. The Procurator General informed the Court of Appeal that the
applicant, in three different sets of criminal proceedings, had
previously been convicted, by judgments of 30 October 1992, 24 November
1992 and 11 December 1992 respectively, by the Magistrate of the
Regional Court of Amsterdam and sentenced to terms of imprisonment of
three months, three months and two months respectively.
25. On 30 March 1993, the Court of Appeal quashed the Magistrate's
judgment convicted the applicant in absentia of attempted extortion
committed together with one or more other persons and sentenced him to
four months' imprisonment. The Court of Appeal used in evidence a
statement of the victim and the statements of police officers D. and
T. concerning what they had seen at the time of the applicant's arrest
on 6 July 1992. The applicant received notice of the Court of Appeal's
judgment in prison.
26. The applicant subsequently lodged an appeal in cassation with the
Supreme Court (Hoge Raad). At that time, he was detained in the prison
at Arnhem. During the proceedings in cassation, the applicant was
assisted by another lawyer than in the proceedings before the Regional
Court and the Court of Appeal.
27. The applicant argued that, in view of the fact that on
6 October 1992 he had been officially notified in the penitentiary of
the appeal lodged by the prosecution, and in view of the fact that he
had been sentenced to several prison terms at the end of 1992, it
should have been clear to the Court of Appeal that it was doubtful
whether he was actually living at his official place of residence at
the time the attempts to serve him with the summons were made. The
applicant further argued that the Court of Appeal should have declared
the summons void or should have adjourned its examination of the case
in order to give him the opportunity to appear and conduct his defence.
28. The applicant also complained that the Court of Appeal had not
allowed the lawyer who assisted him at the time to conduct the defence
in his absence, the consequence of which had been that, in violation
of the principle of equality of arms, the defence had not been able to
question the witnesses, whereas the Procurator General had done so. He
pointed out that his conviction was based to a large extent on the
statements of the police officers D. and T.
29. On 29 March 1994, the Advocate General (Advocaat-Generaal) at the
Supreme Court submitted his written conclusions. He found that the
summons to appear before the Court of Appeal had been lawfully served.
In his opinion, it had not been obvious during the appeal proceedings
that the applicant was in detention. He further stated that he agreed
with the Court of Appeal's rejection of the request of the applicant's
lawyer to conduct his client's defence in his absence.
30. On 31 May 1994, the Supreme Court rejected the applicant's appeal
in cassation.
B. Relevant domestic law and practice
31. Pursuant to Section 409 para. 1 CCP, the Registrar of the
Regional Court, after an appeal has been lodged against a judgment of
the Regional Court, transmits the case-file in question to the Court
of Appeal. When only the public prosecutor has lodged an appeal, the
Registrar does not send the case-file to the Court of Appeal until the
defendant has been notified of the public prosecutor's appeal (Section
409 para. 2 CCP). According to Section 412 para. 1 CCP, the President
of the Court of Appeal determines, if possible within eight days after
transmission of the case-file, the day of the hearing on appeal.
32. The notification of judicial communications (gerechtelijke
mededelingen) to natural persons is regulated in Sections 585-590 CCP.
In principle, a summons to appear in court is served on the defendant
in person at his place of residence, usually by the postman. If the
defendant is not present, the summons may be left with another person
present at the address if he declares his willingness to hand the
summons to the defendant without delay (Section 588 para. 1b CCP).
33. If delivery of the summons to another person at the defendant's
place of residence is also not possible, a notice is left behind giving
the address at which the defendant, or someone authorised to act on his
behalf, may collect the summons (usually the post office). If nobody
claims the summons, it is returned to the public prosecutor's office
(Section 588 paras. 2 and 3 CCP).
34. The public prosecutor's office will then verify at the Registry
Office of the relevant municipality whether the defendant was in fact
registered at the address where the summons was served on the day it
was presented and five days afterwards. If this proves to be the case,
the summons is presented to the Registrar of the Regional Court that
will deal or has dealt with the case. The Registrar of the Regional
Court will then send the summons by service mail to the defendant's
address pursuant to Section 588 para. 4 CCP.
35. Pursuant to Section 588 para. 1a CCP, if a defendant is detained
in the Netherlands in connection with the case to which the summons
refers, the summons must be served on the defendant in person. In
accordance with established Supreme Court case-law based on Section 588
para. 1 CCP, it may be desirable for the court to investigate, if the
accused has not appeared at a hearing after receiving a lawful summons
to do so, whether there are reasons for suspending the hearing in order
to give the accused another opportunity to attend. The court is only
obliged to do so, however, if it is apparent from the documents or
points raised during the hearing that the accused has been detained in
connection with another case than that to which the summons refers.
36. According to Section 590 para. 1 CCP, the notification is null
and void when the statutory regulations concerning notification of
judicial communications have not been respected. However, this nullity
will have no effect if the defendant appears voluntarily at the
hearing, or when a situation has occurred from which it may be assumed
that the defendant was aware of the date of the hearing before the
statutory time of summoning (Section 590 para. 2 CCP).
37. Under Section 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 (Section 403 CCP). An
objection may not be filed by an accused who has, or has had, the
opportunity to appeal to a higher court with jurisdiction as to both
fact and law (Section 399 para. 2 CCP). It follows from Section 399
para. 1 CCP that no objection may be filed against a judgment in
absentia given on appeal.
38. Under Dutch law, an accused who has been declared in default of
appearance is not entitled to have his defence conducted by counsel,
unless the court finds that there are "compelling reasons" preventing
the accused from appearing (for further details see Eur. Court H.R.,
Lala v. the Netherlands judgment of 22 September 1994, Series A
no. 297-A, pp. 9-11, paras. 16-21).
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
39. The Commission has declared admissible the applicant's complaints
that, in criminal appeal proceedings before the Court of Appeal, he was
unable to defend himself since he had not been made aware of the date
of the hearing and his lawyer was neither allowed to conduct the
defence in the absence of the applicant nor to question witnesses.
B. Points at issue
40. The Commission must accordingly examine:
- whether there has been a violation of Article 6 paras. 1 and
3 (c) (Art. 6-1, 6-3-c) of the Convention in that the applicant
was unable to attend the hearing before the Court of Appeal;
- whether there has been a violation of Article 6 paras. 1 and
3 (c) (Art. 6-1, 6-3-c) of the Convention in that the applicant's
lawyer was not allowed to conduct the defence in the applicant's
absence; and
- whether there has been a violation of Article 6 paras. 1
and 3 (d) (Art. 6-1, 6-3-d) of the Convention in that the
applicant's lawyer was not allowed to question witnesses.
C. As regards Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the
Convention in respect of the applicant's absence from the hearing
on appeal
41. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads as follows:
"1. In the determination ... of any criminal charge against
him, everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law ... "
42. Article 6 para. 3 (c) (Art. 6-3-c) of the Convention, insofar as
relevant, reads as follows:
"3. Everyone charged with a criminal offence has the following
minimum rights:
...
c. to defend himself in person or through legal
assistance of his own choosing ..."
43. The applicant complains that he was unable to defend himself in
person before the Court of Appeal since the summons to this hearing had
not reached him, and he had not waived the right to defend himself. He
submits that the prosecution authorities made insufficient efforts to
inform him of the date of the hearing. In this respect he points to the
fact that the authorities did succeed in delivering to him, while he
was in prison, the notification of the appeal instigated by the public
prosecutor. He further submits that his case-file contained information
about other convictions whereby he had been sentenced to prison. In
addition, the applicant contends that since 1985 the authorities have
had a computerised system at their disposal which enables them to find
out where convicted persons are being held.
44. The respondent Government submit that the notification procedure
followed was in accordance with Dutch law and that there was nothing
either in the contents of the documents available to the prosecution
authorities for the hearing on appeal or in the points raised during
the hearing on appeal itself to arouse any suspicion that the applicant
had been lawfully detained at the moment of the delivery of the summons
on appeal. According to the Government, a computerised system enabling
the prosecuting authorities to find out who is in detention and where
was not introduced until August 1993. At the time the summons in the
present case was issued, the only way to determine whether an accused
might be detained was on the basis of the available documents in the
case-file.
45. The Government further argue that the applicant's counsel in the
proceedings before the Court of Appeal was also unaware of the
applicant's detention, given that he was unable to inform the Court of
Appeal of the reasons for the applicant's absence. They submit that
counsel might have been expected to take some trouble to reach the
applicant.
46. The Commission notes in the first place that the present case
relates to the opportunity for a person charged with a criminal offence
to attend his trial together with his counsel. As this is the
fundamental question and as the requirements of paragraph 3 of
Article 6 (Art. 6) are to be seen as particular aspects of the right
to a fair trial guaranteed by paragraph 1, the Commission will examine
the complaint from the point of view of these two provisions in
conjunction (cf. Eur. Court HR, F.C.B. v. Italy judgment of 28 August
1991, Series A no. 208-B, p. 20, para. 28).
47. The Commission recalls that the right of an accused person to
participate in person in the trial is a fundamental element of a fair
trial (cf. Eur. Court HR, Colozza v. Italy judgment of
12 February 1985, Series A no. 89, p. 14, para. 27; and T. v. Italy
judgment of 12 October 1992, Series A no. 245-C, p. 41, para. 26).
Furthermore, an accused may waive the exercise of this right, but to
do so he must have received notification in person and his decision not
to appear or to defend himself must be established in an unequivocal
manner (Colozza judgment, loc. cit., pp. 14-15, para. 28).
48. The Commission observes that the applicant, who was not present
at the hearing before the Court of Appeal despite the fact that he was
charged with a criminal offence, had not expressed the wish to waive
attendance. It also observes that the notification of appeal by the
public prosecutor had been delivered to the applicant in person whilst
he was detained in connection with other criminal offences. The
applicant was thus made aware of the fact that an appeal had been
lodged.
49. However, unlike the notification of appeal, the actual summons
for the hearing on appeal did not reach the applicant. The Commission
finds that informing someone of the date on which criminal charges
against him are to be examined is a legal act of such importance that
it must be carried out in accordance with procedural and substantive
requirements capable of guaranteeing the effective exercise of the
accused's rights (cf., mutatis mutandis, T. v. Italy judgment, loc.
cit., p. 42, para. 28). The Commission notes in this respect that,
while the notification of the summons was indeed dealt with in
accordance with the provisions of Dutch law, these provisions do not
provide for the situation which arose in the present case where the
accused was detained in connection with a different case from that to
which the summons referred.
50. The Commission considers that in the present case it cannot be
said, as indeed the Government do not allege, that the applicant failed
to take the necessary steps to ensure receipt of his mail (cf., mutatis
mutandis, Eur. Court HR, Hennings v. Germany judgment of 16 December
1992, Series A no. 251-A, p. 11, para. 26). In this respect the
Commission accepts that a person who is lawfully deprived of his
liberty may reasonably expect the authorities to be aware of this fact
and to be able to ascertain his place of detention.
51. Furthermore, the Commission notes that in the present case the
prosecuting authorities must at some stage of the appeal proceedings
have been aware of the fact that the applicant was detained, since the
notification of appeal was served on him in prison (para. 19).
Moreover, at the hearing on 16 March 1993 the Procurator General at the
Court of Appeal informed this Court that the applicant had previously
been sentenced to a total of eight months' imprisonment (para. 24),
which would appear to give some indication of the possibility that the
applicant might have been detained at the time when attempts were made
to notify him of the date of the hearing. Nevertheless, the Court of
Appeal ordered no investigation into this possibility but declared the
applicant in default and proceeded to convict and sentence him.
52. The Commission finds it difficult to reconcile this situation
with the diligence which the Contracting States must exercise to ensure
the effective enjoyment of the rights guaranteed under Article 6
(Art. 6) (cf. F.C.B. v. Italy judgment, loc. cit., p. 42, para. 29).
53. The Commission notes that according to the Government the
applicant's counsel was also unaware of his client's detention and did
not attempt to reach the applicant. However, even assuming this to be
the case, the Commission finds that the consequences which the Dutch
judicial authorities attributed to the applicant's absence were
disproportionate, having regard to the prominent place which the right
to a fair trial holds in a democratic society within the meaning of the
Convention (cf. Colozza v. Italy judgment, loc. cit., p. 16, para. 32).
CONCLUSION
54. The Commission concludes, unanimously, that there has been a
violation of Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the
Convention in that the applicant was not notified of the hearing before
the Court of Appeal.
D. As regards Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the
Convention in respect of the refusal to allow the applicant's
counsel to conduct the defence in the applicant's absence
55. The applicant submits that at the hearing before the Court of
Appeal his counsel should have been given the opportunity to conduct
the defence, despite the fact that the applicant himself was not
present.
56. The respondent Government submit in the first place that,
following the judgments in the cases of Lala and Pelladoah v. the
Netherlands (Eur. Court HR, judgments of 22 September 1994, Series A
nos. 297-A and 297-B respectively), counsel for an accused who has not
appeared in court is now always given the opportunity to speak in his
client's defence. The Government are also considering amending the law
on this point.
57. In view of the above, the Government defer to the opinion of the
Commission. Nevertheless, despite the similarities with the cases of
Lala and Pelladoah, the Government take the view that the specific
circumstances of the present case should be taken into account when
considering the question whether the interests of the applicant's
defence were harmed.
58. In this respect they argue that there is no indication that at
the relevant time the applicant's counsel had contact with the
applicant or attempted to ascertain his place of residence. In the
opinion of the Government it is among the responsibilities of counsel
to inform a client of the time at which an appeal will be heard, not
only in order to prepare for the hearing but also in view of the
Supreme Court case-law at that time according to which counsel was only
allowed to conduct the defence in the absence of the accused if
compelling reasons for his absence could be put forward. If the options
available for the applicant's defence are thus restricted in any way,
it cannot be argued that the judicial authorities are solely
responsible for this restriction.
59. The Government further believe that the applicant could have been
expected to make more of an effort to exercise his right to a defended
action by contacting the lawyer who acted as his counsel at
first instance, or any other counsel.
60. The Commission observes that the principles involved in the
present case are the same as those in the cases which led to the Lala
and Pelladoah judgments (loc. cit., p. 11, para. 25 and p. 32, para. 32
respectively).
61. In these judgments, the Court held that it is for domestic courts
to ensure that a trial is fair and, accordingly, that counsel who
attends trial for the apparent purpose of defending the accused in his
absence, is given the opportunity to do so (loc. cit., p. 14, para. 34
and p. 35, para. 41 respectively).
62. The Commission recalls furthermore that the Court found that the
fact that the defendant does not appear cannot - even in the absence
of an excuse - justify depriving him of his right under Article 6
para. 3 (c) (Art. 6-3-c) to be defended by counsel (loc. cit., p. 13,
para. 33 and p. 35, para. 40 respectively). Accordingly, the Commission
cannot find the question whether or not the applicant and his counsel
could be reproached for not having attempted to contact each other to
be of relevance in this respect.
63. The Commission considers that there is nothing in the present
application which would lead to a different conclusion from that which
was reached by the Court in the above-mentioned Lala and Pelladoah
judgments.
CONCLUSION
64. The Commission concludes, unanimously, that there has been a
violation of Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the
Convention in that the applicant's counsel was not allowed to conduct
the defence in the applicant's absence.
E. As regards Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the
Convention
65. Article 6 para. 3 (d) (Art. 6-3-d) of the Convention, insofar as
relevant, reads as follows:
"3. Everyone charged with a criminal offence has the following
minimum rights:
...
d. to examine or have examined witnesses against him ..."
66. The applicant complains that at the hearing before the Court of
Appeal his counsel was not allowed to question witnesses. Since these
witnesses were questioned by the prosecution he also complains of
inequality of arms in this respect.
67. The Government, while referring to their observations on the
question of the impossibility for counsel to conduct the defence in the
applicant's absence, also submit that the Court of Appeal, in view of
its independent position and its impartiality, would have taken into
account the interests and position of the applicant when arriving at
its judgment, even if the latter's counsel was not in a position to
speak during the proceedings.
68. The Commission recalls its conclusion that the refusal to allow
the applicant's counsel to conduct the defence in the applicant's
absence constituted a violation of Article 6 paras. 1 and 3 (c)
(Art. 6-1, 6-3-c) of the Convention (para. 64). Having regard to this
conclusion, the Commission does not consider it necessary also to
examine whether Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the
Convention have been violated.
CONCLUSION
69. The Commission concludes, unanimously, that it is not necessary
to examine whether there has been a violation of Article 6 paras. 1
and 3 (d) (Art. 6-1, 6-3-d) of the Convention.
F. Recapitulation
70. The Commission concludes, unanimously, that there has been a
violation of Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the
Convention in that the applicant was not notified of the hearing before
the Court of Appeal (para. 54).
71. The Commission concludes, unanimously, that there has been a
violation of Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the
Convention in that the applicant's counsel was not allowed to conduct
the defence in the applicant's absence (para. 64).
72. The Commission concludes, unanimously, that it is not necessary
to examine whether there has been a violation of Article 6 paras. 1
and 3 (d) (Art. 6-1, 6-3-d) of the Convention (para. 69).
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy