R.L. v. THE NETHERLANDS



                      AS TO THE ADMISSIBILITY OF

                      Application No. 22942/93

                      by R.L.

                      against the Netherlands

     The European Commission of Human Rights (Second Chamber) sitting

in private on 18 May 1995, the following members being present:

           Mr.   H. DANELIUS, President

           Mrs.  G.H. THUNE

           MM.   G. JÖRUNDSSON

                 S. TRECHSEL

                 J.-C. SOYER

                 H.G. SCHERMERS

                 F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

           Ms.   M.-T. SCHOEPFER, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 14 September 1993

by R.L. against the Netherlands and registered on 18 November 1993

under file No. 22942/93;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a Dutch national, born in 1967, and presently

detained in Veenhuizen, the Netherlands. Before the Commission he is

represented by Mr. A.B. Baumgarten, a lawyer practising in Voorburg,

the Netherlands.

     The facts of the case, as submitted by the applicant, may be

summarised as follows.

a. Particular circumstances of the case

     On 12 September 1990, the public prosecutor (Officier van

Justitie) in The Hague requested the investigating judge (Rechter-

Commissaris) in The Hague to open a preliminary judicial investigation

(gerechtelijk vooronderzoek) against the applicant, who was suspected

of importing heroin into the Netherlands.

     On the same day, the investigating judge opened a preliminary

judicial investigation against the applicant, and authorised the

tapping of the applicant's telephone. The telephone was tapped between

12 September 1990 and 18 March 1991.

     On 6 May 1991, the applicant was arrested and subsequently

detained on remand. On this occasion he was informed of the suspicions

against him. On 8 May 1991, the applicant was brought before the

investigating judge, who prolonged the applicant's detention on remand.

On that occasion, the investigating judge informed the applicant that

already on 12 September 1990 a preliminary judicial investigation had

been opened against him, and provided him with a copy of the public

prosecutor's request of 12 September 1990.

     By summons of 24 July 1991, the applicant was ordered to appear

before the Regional Court (Arrondissementsrechtbank) of The Hague on

8 August 1991 on four charges of importing heroin into the Netherlands.

     On 22 August 1991, the Regional Court convicted the applicant of

four counts of importing heroin, and sentenced him to eight years'

imprisonment. The Regional Court did not use tapped telephone

conversations as evidence in the case. The applicant lodged an appeal

against the judgment.

     By summons of 7 January 1992, the applicant was ordered to appear

before the Court of Appeal (Gerechtshof) of The Hague on

7 February 1992. Sessions of the Court of Appeal took place on 7 and

21 February, 3 March and 3 April 1992.

     On 16 April 1992, the Court of Appeal quashed the Regional

Court's judgment on technical grounds, convicted the applicant of four

counts of importing heroin and sentenced him to eight years'

imprisonment. The Court of Appeal did not use tapped telephone

conversations as evidence in the case.

     In the proceedings before the Court of Appeal, the applicant

requested that the prosecution be declared inadmissible because Article

6 para. 3 (a) of the Convention had been violated. He argued that, as

he was 'charged with a criminal offence' on 12 September 1990 when the

public prosecutor requested the investigating judge to open a

preliminary judicial investigation, he should have been promptly

informed of the nature and cause of the accusation against him.

However, he did not receive notice of the public prosecutor's request

until 8 May 1991, which in his opinion was not "promptly". The

applicant further submitted that the Dutch Code of Criminal Procedure

(Wetboek van Strafvordering) gives a number of rights to the suspect

against whom a preliminary judicial investigation is conducted, such

as the right to access to the case-file and the right to request the

examination of witnesses.

     The Court of Appeal rejected the applicant's request, holding

that the opening of a preliminary judicial investigation did not

constitute a "charge" within the meaning of Article 6 para. 3 (a) of

the Convention.

     In his subsequent appeal in cassation, the applicant argued,

reiterating the arguments he had put forward before the Court of

Appeal, that the Court of Appeal's reasoning was incorrect. On

11 May 1993, the Supreme Court (Hoge Raad) rejected the applicant's

appeal in cassation. It held:

     "Van "charged with a criminal offence" in de zin van art.

     6, derde lid, EVRM kan geen sprake zijn indien vanwege de

     Staat nog niet een handeling is verricht tegenover de

     betrokkene waaraan deze in redelijkheid de gevolgtrekking

     heeft kunnen verbinden dat hij wordt beschuldigd van een

     strafbaar feit."

     "There can be no question of 'charged with a criminal

     offence' within the meaning of Article 6 para. 3 of the

     Convention if, on behalf of the State, no action has been

     undertaken against the person involved, to which, in all

     reasonableness, he could have attached the conclusion that

     he was charged with a criminal offence."

     The Supreme Court added that when a request to open a preliminary

judicial investigation has not been made known to the suspect or his

lawyer, no action has been carried out to which one can attach the

conclusion that one has been charged with a criminal offence.

b. Relevant domestic law and practice

     According to Section 27 para. 2 of the Code of Criminal Procedure

a suspect is the person against whom the prosecution ("vervolging") is

directed. The Code of Criminal Procedure does not contain a definition

of the term "prosecution". However, the request of a public prosecutor

to an investigating judge to open a preliminary judicial investigation

is generally considered to be an act of prosecution.

     Telephone tapping is regulated by Sections 125 f-h of the Code

of Criminal Procedure. It may only be utilised for investigation of

offences for which detention on remand may be imposed, i.e. offences

of a certain gravity. Only telephone conversations in which the suspect

is likely to participate may be monitored, and the tapping may only be

ordered when the investigation urgently requires it. A written record

of the telephone conversations that are tapped must be prepared within

48 hours. Records without relevance must be destroyed as soon as

possible.

     Telephone tapping is only possible following a previous

authorisation by the investigating judge and can only take place in the

course of a preliminary judicial investigation.

     A preliminary judicial investigation is normally opened at the

request of the public prosecutor. Pursuant to Section 181 para. 2 of

the Code of Criminal Procedure, the request must be in writing and must

define the alleged offence as precisely as possible, given the state

of the investigation.

     After the closure of the preliminary judicial investigation, the

public prosecutor either decides not to pursue the charges against the

person against whom the investigation was directed, serves him with a

summons to appear before a court, or notifies him of his intention to

continue the prosecution.

     Pursuant to Section 237 of the Code of Criminal Procedure the

investigating judge must inform the suspect of the closure of the

preliminary judicial investigation.

     Section 30 para. 1 of the Code of Criminal Procedure states that,

at the request of the suspect, the investigating judge shall give the

suspect access to the case-file during the preliminary judicial

investigation. However, under the second paragraph of this provision,

access may be limited in the interest of the investigation.

COMPLAINT

     The applicant complains under Article 6 para. 3 (a) of the

Convention that he was not promptly informed of the opening of a

preliminary judicial examination against him, which in his opinion

constitutes a "charge" within the meaning of Article 6 of the

Convention. He submits that under the Dutch Code of Criminal Procedure

the suspect against whom a preliminary judicial investigation is

opened, has certain rights, in particular the right to have access to

the case-file. Because he was not promptly notified of the nature and

cause of the accusations against him, he was not able to exercise these

rights and he was thus harmed in his defence. The extent of the

detriment to the defence cannot be determined, but, in any case, the

applicant could not exercise his rights in the period from

12 September 1990 to 6 or 8 May 1991 and he could not take steps in the

interest of his defence.

THE LAW

     The applicant complains under Article 6 para. 3 (a)

(Art. 6-3-a) of the Convention that he was not promptly informed of the

nature and cause of the accusations against him.

     The Commission recalls that the guarantees specified in Article

6 para. 3 (Art. 6-3) of the Convention must be interpreted in the light

of the general notion of a fair trial contained in Article 6 para. 1

(Art. 6-1). It will therefore examine the complaint under these two

provisions taken together (cf. Eur. Court H.R., Asch judgment,

26 April 1991, Series A no. 203, p. 10, para. 25).

     Article 6 (Art. 6) 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 (...) hearing (...).

     (...)

     3.    Everyone charged with a criminal offence has the following

     minimum rights:

           a.    to be informed promptly, in a language which he

     understands and in detail, of the nature and cause of the

     accusation against him;

           b.    to have adequate time and facilities for the

     preparation of his defence;

     (...)."

     The Commission and the Court have stressed that Article 6 para.

3 (a) (Art. 6-3-a) of the Convention is of fundamental importance in

preparing the defence and that its scope must be understood in relation

to Article 6 para. 3 (b) (Art. 6-3-b), which guarantees everyone the

right to have adequate time and facilities for the preparation of his

defence and in the light of the more general right to a fair trial

secured by Article 6 para. 1 (Art. 6-1) of the Convention (cf. Gea

Catalan v. Spain, Comm. Report 30.11.93, para. 28, Eur. Court H.R.,

Series A no. 309).

     The expressions "criminal charge" ("accusation en matière

pénale") in Article 6 para. 1 (Art. 6-1) of the Convention and "charged

with a criminal offence" ("accusé") in Article 6 para. 3

(Art. 6-3) of the Convention must be interpreted as having have an

autonomous meaning in the context of the Convention and not on the

basis of their meaning in domestic law. Although certainly relevant,

the legislation of the State concerned provides no more than a starting

point in ascertaining whether there was a "criminal charge" against the

applicant or whether he was "charged with a criminal offence". The

prominent place held in a democratic society by the right to a fair

trial favours a "substantive", rather than a "formal", conception of

the "charge" referred to by Article 6 (Art. 6). In the determination

whether or not there was a "charge" within the meaning of Article 6

(Art. 6), the realities beyond the appearances of the procedure must

be examined. In particular, the applicant's situation under the

domestic legal rules in force has to be examined in the light of the

object and purpose of Article 6 (Art. 6), namely the protection of the

rights of the defence (cf. Eur. Court H.R., Adolf judgment of

26 March 1982, Series A no. 49, p. 15, para. 30).

     A "charge", for the purposes of Article 6 para. 1 (Art. 6-1), may

in general be defined as "the official notification given to the

individual by the competent authority of an allegation that he has

committed a criminal offence". It may in some instances take the form

of other measures which carry the implication of such an allegation and

which likewise substantially affect the situation of the suspect (cf.

Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, p.

33, para. 73; Foti and others judgment of 10 December 1982, Series A

no. 56, p. 18, para. 52, and No. 15921/89, Dec. 1.7.91, D.R. 71

p. 236).

     Finally, the manner in which Article 6 paras. 1 and 3

(Art. 6-1, 6-3) are to be applied during the preliminary investigation

depends on the special features of the proceedings involved and on the

circumstances of the case; in order to determine whether the aim of

Article 6 (Art. 6) - a fair trial - has been achieved, regard must be

had to the entirety of the domestic proceedings conducted in the case

(cf. Eur. Court H.R., Imbrioscia judgment of 24 November 1993, Series

A no. 275, p. 13, para. 38).

     In the present case the applicant was under suspicion of

involvement in narcotics offences. The Commission notes that on

12 September 1990 a preliminary judicial investigation was opened

against him and that subsequently his telephone was tapped. It further

notes that, under Dutch law, it is not possible for the investigating

authorities to tap a telephone without prior judicial authorisation and

that consequently telephone tapping can only take place in the course

of a preliminary judicial investigation which is carried out by an

investigating judge.

     In these circumstances, the Commission finds that during the

period between 12 September 1990, when the preliminary judicial

investigation was opened, and 6 May 1991, when the applicant was

arrested, he cannot be regarded as having been "charged with a criminal

offence" within the meaning of Article 6 para. 3 (a) (Art. 6-3-a) of

the Convention. During that period there was merely a suspicion against

him not necessarily leading to a formal accusation. This suspicion did

give rise to certain investigative measures, including the tapping of

his telephone which is subject to certain formalities in view of the

judicial safeguards attached to this specific investigative tool.

     In reaching this conclusion the Commission took into

consideration that an adequate and effective judicial control of

interferences by the State with the right to respect for a person's

private life, such as the tapping of someone's telephone, is an

essential feature of the guarantees embodied in Article 8 (Art. 8) of

the Convention, which is intended to minimise the risk of arbitrariness

and abuse. Judicial control is required by the rule of law, one of the

fundamental principles of a democratic society, which is expressly

referred to in the Preamble to the Convention (cf. Eur. Court H.R.,

Klass and Others judgment of 6 September 1978, p. 23, paras. 49-50, and

Leander judgment of 26 March 1987, Series A no. 116, p. 23, para. 51).

     Given that on 6 May 1991, following his arrest, the applicant was

informed of the reasons for his arrest and the charges against him, the

Commission finds that the applicant was promptly informed of the

charges against him for the purposes of Article 6 para. 3 (a)

(Art. 6-3-a) of the Convention.

     As regards the criminal proceedings against the applicant, taken

as a whole, it has not been argued nor been shown that the applicant

could not effectively exercise his defence rights within the meaning

of Article 6 (Art. 6) of the Convention as from the moment of his

arrest until the rejection of his appeal in cassation.

     The Commission, therefore, concludes that there is no indication

which might warrant the conclusion that the proceedings at issue were

not in conformity with the requirements of Article 6 (Art. 6) of the

Convention.

     It follows that the complaint is manifestly ill-founded and must

be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber       President of the Second Chamber

       (M.-T. SCHOEPFER)                           (H. DANELIUS)

 

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