EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 23699/94
S.D.R.
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 24 October 1995)
TABLE OF CONTENTS
Page
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PART I : STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . 3
PART II : SOLUTION REACHED . . . . . . . . . . . . . . . . . . . . 4
INTRODUCTION
1. This Report relates to the application introduced under
Article 25 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms by S.D.R. against the Netherlands on
4 March 1994. It was registered on 17 March 1994 under file
No. 23699/94.
The applicant was represented by Mr. B.R. Angad Gaur, a lawyer
practising in The Hague.
The Government of the Netherlands were represented by their
Agent, Mr. K. de Vey Mestdagh of the Netherlands Ministry of Foreign
Affairs.
2. On 4 July 1995 the Commission (Second Chamber) declared the
application admissible. It then proceeded to carry out its task
under Article 28 para. 1 of the Convention which provides as follows:
"In the event of the Commission accepting a petition referred to
it:
a. it shall, with a view to ascertaining the facts, undertake
together with the representatives of the parties an examination
of the petition and, if need be, an investigation, for the
effective conduct of which the States concerned shall furnish all
necessary facilities, after an exchange of views with the
Commission;
b. it shall at the same time place itself at the disposal of
the parties concerned with a view to securing a friendly
settlement of the matter on the basis of respect for Human Rights
as defined in this Convention."
3. The Commission (Second Chamber) found that the parties had
reached a friendly settlement of the case and on 24 October 1995 it
adopted this Report, which, in accordance with Article 28 para. 2 of
the Convention, is confined to a brief statement of the facts and of
the solution reached.
The following members were present when the Report was adopted:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
PART I
STATEMENT OF THE FACTS
4. The applicant is a Dutch citizen, born in 1944, and resides at
The Hague. Before the Commission he is represented by Mr. B.R. Angad
Gaur, a lawyer practising in The Hague.
5. On 20 December 1991, the Magistrate (Politierechter) at the
Regional Court (Arrondissementsrechtbank) of The Hague convicted the
applicant, in absentia, of driving under the influence of alcohol and
sentenced him to two weeks' imprisonment and twelve months'
disqualification from driving a motor vehicle. The applicant filed an
appeal against the Magistrate's judgment with the Court of Appeal
(Gerechtshof) of The Hague. He was summoned to appear before the Court
of Appeal on 13 January 1993.
6. On 13 January 1993, the applicant did not appear before the Court
of Appeal. His lawyer, however, was present. The Court of Appeal
declared the applicant in default of appearance. Although the minutes
of the hearing do not state this, the applicant alleges that his lawyer
asked for the Court of Appeal's permission to conduct the applicant's
defence.
7. On the same day, the Court of Appeal quashed the Magistrate's
judgment on technical grounds, convicted the applicant, in absentia,
of driving under the influence of alcohol and sentenced him to two
weeks' imprisonment and twelve months' disqualification from driving
a motor vehicle.
8. The applicant's subsequent appeal in cassation, in which he
complained that the Court of Appeal had not allowed his lawyer to
conduct his defence in his absence, was rejected on 30 November 1993
by the Supreme Court (Hoge Raad).
9. Before the Commission the applicant complained under Article 6
of the Convention that as, before the Court of Appeal, his lawyer had
not been allowed to conduct his defence he had not received a fair
trial in the determination of the criminal charges against him.
PART II
SOLUTION REACHED
10. Following the decision on the admissibility of the application,
the Commission (Second Chamber) placed itself at the disposal of the
parties with a view to securing a friendly settlement in accordance
with Article 28 para. 1 (b) of the Convention and invited the parties
to submit any proposals they wished to make.
11. In accordance with the usual practice, the Chamber Secretary,
acting on the Commission's instructions, contacted the parties to
explore the possibilities of reaching a friendly settlement.
12. The Government notified the Commission, by letter dated
30 August 1995, that they were prepared to consider a friendly
settlement and submitted proposals to this end. According to these
proposals, the Government were willing to pay the applicant, in full
and final settlement of the matter, the legal costs he had incurred in
the proceedings before the Commission and an ex gratia payment of
100 Dutch guilders for non-pecuniary damages.
13. On 2 October 1995, the applicant's representative informed the
Commission that the applicant accepted the Government's offer.
14. The parties have informed the Commission that it has been agreed
between them that the legal costs incurred by the applicant in the
proceedings before the Commission amount to 1,179.25 Dutch guilders.
15. At its session on 24 October 1995, the Commission noted that the
parties had reached an agreement regarding the terms of a settlement.
It further considered, having regard to Article 28 para. 1 (b) of the
Convention, that the friendly settlement of the case had been secured
on the basis of respect for Human Rights as defined in the Convention.
16. For these reasons, the Commission adopted the present Report.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy