AS TO THE ADMISSIBILITY OF
Application No. 23699/94
by S.D.R.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 4 July 1995, the following members being present:
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
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 4 March 1994 by
S.D.R. against the Netherlands and registered on 17 March 1994 under
file No. 23699/94 ;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
16 February 1995 and the observations in reply submitted by the
applicant on 15 March 1995;
Having deliberated;
Decides as follows:
THE FACTS
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.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. The particular circumstances of the case
By summons of 23 September 1991 the applicant was summoned to
appear before the Magistrate (Politierechter) at the Regional Court
(Arrondissementsrechtbank) of The Hague on the charge of driving under
the influence of alcohol. On 20 December 1991, following a hearing at
which neither the applicant nor his lawyer had appeared, the Magistrate
convicted the applicant of driving under the influence of alcohol and
sentenced him to two weeks' imprisonment and twelve months'
disqualification from driving a motor vehicle.
On 3 January 1992, 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.
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. The applicant alleges
that his lawyer was fully robed and, although the minutes of the
hearing do not state this, asked for the Court of Appeal's permission
to conduct the applicant's defence.
On 13 January 1993, the Court of Appeal quashed the Regional
Court's judgment on technical grounds, convicted the applicant of
driving under the influence of alcohol and sentenced him to two weeks'
imprisonment and twelve months' disqualification from driving a motor
vehicle.
In his appeal in cassation to the Supreme Court (Hoge Raad), the
applicant complained that the Court of Appeal had not allowed his
lawyer to conduct his defence in his absence. He invoked Article 6 of
the Convention.
In its judgment of 30 November 1993, the Supreme Court rejected
the applicant's appeal in cassation. It held, inter alia:
"In cases where the accused has not appeared but his lawyer is present at the beginning of the court hearing, the court may proceed on the assumption that if the lawyer of the accused wishes to act as such despite the absence of his client, he will make this known to the court. As the record of the hearing of the Court of Appeal contains nothing which might indicate that the lawyer made it known to the Court of Appeal that he wished to act in that capacity - his own presence cannot serve this purpose - it must be assumed that he has failed to do so. Under these circumstances the Court of Appeal - notwithstanding the quoted treaty provisions and national law - was not obliged to allow the lawyer to conduct the defence." The applicant has not referred to any reason for his absence at the hearing of his case before the Court of Appeal, either before the domestic courts or before the Commission. B. Relevant domestic law and practice The Netherlands Code of Criminal Procedure (Wetboek van Strafvordering) does not ensure the right of a lawyer to conduct the defence of an accused before a court, where the latter has been declared in default of appearance. There are, however, according to the Netherlands Supreme Court's case-law, two situations in which a court must allow a lawyer to conduct the defence in the absence of the accused: - in cases concerning nationals of EU member states in which civil liability issues arise (Hoge Raad, judgment of 17 November 1981, N.J. 1982 nr. 269), and - in cases where there are compelling reasons (klemmende redenen) preventing the appearance of an accused at the hearing of his case (Hoge Raad, judgment of 26 February 1988, N.J. 1988 nr. 794) and where a lawyer has made an explicit request to that effect to the court (Hoge Raad, judgment of 14 November 1986, N.J. 1987 nr. 862 and judgment of 18 September 1989, N.J. 1990 nr. 145). COMPLAINT The applicant complains under Article 6 of the Convention that at the hearing before the Hague Court of Appeal, his lawyer was not allowed to conduct his defence in his absence and that he was thus deprived of a fair trial in the determination of the criminal charges against him. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 4 March 1994 and registered on 17 March 1994. On 30 November 1994 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on its admissibility and merits. The Government's written observations were submitted on 16 February 1995. The applicant replied on 15 March 1995. THE LAW The applicant complains that in the determination of the criminal charges against him he did not receive a fair hearing as the Court of Appeal did not allow his lawyer to conduct the defence in his absence. The applicant invokes Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention, which, insofar as relevant, provide: "1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by a ... tribunal ... . 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 ... ." The Government submit that the facts in the case at issue are similar to those in the cases of Lala and Pelladoah in which the Court found a violation of Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention (Eur. Court H.R., Lala and Pelladoah judgments of 22 September 1994, Series A nos. 297-A and 297-B respectively). Following these judgments, 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. In view of the above, the Government defer to the opinion of the Commission. The applicant reiterates that it was obvious that the aim of his lawyer's fully robed presence at the hearing before the Court of Appeal was to conduct his defence. He maintains that the Court of Appeal unjustly did not allow his lawyer to do so. The Commission notes that this application raises the same issues as the cases of Lala and Pelladoah (above-mentioned judgments of 22 September 1994, Series A nos. 297-A and 297-B). Having regard to the parties' submissions and the case-law of the Convention organs, the Commission considers that the present application raises questions of fact and law which require an examination of the merits. This complaint cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established. For these reasons, the Commission, unanimously, DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case. Secretary to the Second Chamber President of the Second Chamber (M.-T. SCHOEPFER) (H. DANELIUS)
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