EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 16737/90
S.P.
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 4 May 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-7) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 8-13). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 14-18) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 19-37). . . . . . . . . . . . . . . . . . . . . . . . 3
A. Particular circumstances of the case
(paras. 19-29) . . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 30-37) . . . . . . . . . . . . . . . . . . . . . 5
III. OPINION OF THE COMMISSION
(paras. 38-62). . . . . . . . . . . . . . . . . . . . . . . . 6
A. Complaint declared admissible
(para. 38) . . . . . . . . . . . . . . . . . . . . . . . 6
B. Point at issue
(para. 39) . . . . . . . . . . . . . . . . . . . . . . . 6
C. Article 6 of the Convention
(paras. 40-60) . . . . . . . . . . . . . . . . . . . . . 6
D. Conclusion
(para. 61) . . . . . . . . . . . . . . . . . . . . . . . 9
APPENDIX I : HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . .10
APPENDIX II : DECISION ON THE ADMISSIBILITY OF
THE APPLICATION . . . . . . . . . . . . . . . . . .11
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 Mauritian national, born in 1947, and resides
at Quatre Bornes, Mauritius. Before the Commission he is represented
by Mr. Vincent Kraal, a lawyer practising in Amsterdam.
3 The application is directed against the Netherlands, whose
Government are represented by their Agent, Mr. Karel de Vey Mestdagh
of the Netherlands Ministry of Foreign Affairs.
4 On 21 August 1986 the Regional Court of Haarlem convicted the
applicant of unintentional importation of heroin and sentenced him to
six months' imprisonment.
5 On 5 February 1988 the Court of Appeal of Amsterdam quashed the
judgment of 21 August 1986, convicted the applicant in absentia for
intentional importation of heroin and sentenced him to nine years'
imprisonment.
6 The Supreme Court rejected the applicant's appeal in cassation
on 24 October 1989.
7 The applicant complains under Article 6 paras. 1 and 3(c) of the
Convention that he was deprived of a fair trial in the determination
of the criminal charges against him as he was convicted without having
had the opportunity to defend himself through his counsel, since before
the Court of Appeal his lawyer was not allowed to conduct his defence
in his absence.
B. The proceedings
8 The application was introduced on 17 April 1990 and registered
on 18 June 1990.
9 On 8 November 1990 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the
application.
10 The Government's observations were submitted on 31 January 1991.
The applicant submitted his observations in reply on 17 May 1991.
11 On 11 January 1993 the Commission declared the application
admissible and the parties were invited, should they so desire, to
submit further observations regarding the merits of the application.
12 By letter of 26 February 1993 the Government submitted further
observations. No such observations were received from the applicant.
13 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 of the case. 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
14 The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C. L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.F. REFFI
M. NOWICKI
15 The text of the Report was adopted on 4 May 1993 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 1 of the Convention.
16 The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
(1) to establish the facts, and
(2) to state an opinion as to whether the facts
found disclose a breach by the State concerned
of its obligations under the Convention.
17 A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application forms Appendix II.
18 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. Particular circumstances of the case
19 On 27 December 1985 the applicant was arrested at Schiphol
airport when entering the Netherlands, as about 20 kilogrammes of
heroin and methaqualone had been found in his luggage.
20 The applicant was primarily charged with, either intentional or
unintentional, importation of heroin into the Netherlands and,
alternatively, with either intentional or unintentional possession of
heroin.
21 On 21 August 1986 the Regional Court (Arrondissementsrechtbank)
of Haarlem, after hearing the applicant, convicted him of unintentional
importation of heroin, sentenced him to six months' imprisonment,
lifted the order for his detention on remand and ordered his immediate
release. The applicant was subsequently expelled from the Netherlands.
22 Both the public prosecutor and the applicant filed an appeal
against this judgment.
23 At the hearing of 10 February 1987, before the Court of Appeal
(Gerechtshof) of Amsterdam, the applicant's lawyer requested the Court
to be allowed to conduct the applicant's defence, as, in view of his
place of residence, the applicant was unable to appear in person at the
hearing. The Court rejected this request, considering that no
compelling reasons (dringende redenen) for the applicant's absence had
become apparent, and continued its examination of the case. The Court
subsequently declared the applicant in default of appearance and
started the examination of the case.
24 In its judgment of 24 February 1987 the Court of Appeal stated
that it had appeared during its deliberations that its examination had
not been complete. The Court of Appeal allowed the procurator-general
to add further documents to the case-file and decided to reopen its
examination and to resume it in the course of a hearing on a later
date.
25 On 20 November 1987 the Court of Appeal resumed the proceedings
in a different composition and recommenced its examination of the case.
At the beginning of the hearing the applicant's lawyer requested
permission to represent (vertegenwoordigen) the applicant within the
meaning of Section 270 of the Netherlands Code of Criminal Procedure
(Wetboek van Strafvordering) in respect of the alternative charge of
possession of heroin. The Court rejected the request, considering that
it had neither been stated nor appeared that the applicant had
authorised the lawyer to represent him and as, in any event, it would
first examine the principal charge of importation of heroin for which
representation within the meaning of Section 270 of the Code of
Criminal Procedure was not allowed, this being a criminal offence
punishable by a prison sentence.
26 Following an adjournment, the Court of Appeal resumed its hearing
on 22 January 1988, when the applicant's lawyer submitted a written
authorisation to represent the applicant. The Court again rejected the
request for representation within the meaning of Section 270 of the
Code of Criminal Procedure stating that it would first consider the
principal charge for which representation was not allowed.
27 By judgment of 5 February 1988 the Court of Appeal quashed the
Regional Court's judgment of 21 August 1986 on the basis of a different
assessment of the evidence, convicted the applicant in absentia of
intentional importation of heroin into the Netherlands and sentenced
him to nine years' imprisonment with deduction of the time spent in
custody.
28 The applicant's subsequent appeal in cassation was rejected by
the Supreme Court (Hoge Raad) on 24 October 1989. In respect of the
applicant's complaint that his lawyer's request of 10 February 1987 had
been wrongly rejected the Supreme Court held that, as the Court of
Appeal had recommenced its examination of the applicant's appeal on
20 November 1987, the rejection of this request could not entail the
nullity of the judgment of 5 February 1988 which was based on this new
examination. In respect of the complaint that the lawyer's request of
20 November 1987 and 22 January 1988 to represent the applicant within
the meaning of Section 270 of the Code of Criminal Procedure had been
wrongly rejected the Supreme Court considered that, as the first charge
to be heard was the principal charge, which is punishable by a prison
sentence, the Court of Appeal's decision to reject the request for
representation was well-founded.
B. Relevant domestic law and practice
29 Under Section 270 of the Code of Criminal Procedure a person
accused of an offence not punishable by a prison sentence has the
possibility, when he does not wish to appear in person at the court's
hearing of his case, to have himself represented by a lawyer authorised
to act in his name (vertegenwoordiging).
30 The court is free to allow or to reject the representation. If
it rejects such a request, the court must adjourn its hearing in order
to provide the accused with an opportunity to attend the hearing of his
case in person.
31 A representative cannot act as defence counsel, although only a
lawyer can act as either. According to the Supreme Court the same
lawyer cannot act both as a representative and a defence counsel in the
same proceedings. These functions are considered incompatible (Hoge
Raad, judgment of 25 April 1989, N.J. 1990 nr. 91).
32 Under the Netherlands Code of Criminal Procedure a counsel is not
entitled to defend a person accused of having committed an offence at
the trial, where the latter has been declared in default of appearance.
33 There are, however, according to the Netherlands Supreme Court's
case-law, two situations in which a court must allow counsel to conduct
the defence in the absence of the accused:
- in cases concerning nationals of EC member states in which civil
liability issues arise (Hoge Raad, judgment of 17 November 1981, N.J.
1982 nr. 269), and
- in cases where at the beginning of a court hearing counsel
requests the court to be allowed to conduct the accused's defence and
there are, in the court's opinion, compelling reasons (klemmende
redenen) preventing the appearance of the accused at the hearing of his
case, but the court sees no reasons to suspend the hearing in order to
enable the accused to appear at a hearing on another date (Hoge Raad,
judgment of 26 February 1980, N.J. 1980 nr. 246 and judgment of
16 February 1988, N.J. 1988 nr. 794; judgment of 14 November 1986, N.J.
1987 nr. 862 and judgment of 18 September 1989, N.J. 1990 nr. 145).
34 In a judgment of 26 June 1990 the Supreme Court considered that
the Court of Appeal could not, in view of the defence counsel's
arguments that the accused at issue resided in France and that the
costs of travel to and stay in the Netherlands were considerable,
reject counsel's request to defend the absent accused without giving
any reasons (N.J. 1991 nr. 174).
35 Under Section 399 of the Code of Criminal Procedure it is
possible to file an objection (verzet) against a final conviction in
absentia.
36 An objection can be filed within fourteen days after the
pronouncement of the judgment, when the summons has been notified in
person and otherwise within fourteen days after the occurrence of a
situation from which it is clear that a person has become aware of his
conviction.
37 No objection can be raised against a conviction in absentia by
a first instance court against which an appeal may be lodged, or
against a conviction in absentia on appeal.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
38 The Commission has declared admissible the applicant's complaint
that he was convicted in absentia in proceedings in which his counsel's
request to defend him was refused.
B. Point at issue
39 Accordingly, the issue to be determined is whether there has been
a violation of Article 6 paras. 1 and 3(c) (Art. 6-1, 6-3-c) of the
Convention, as alleged by the applicant.
C. Article 6 (Art. 6) of the Convention
40 Article 6 paras. 1 and 3(c) (Art. 6-1, 6-3-c), insofar as
relevant, read 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
(...)
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 (...);
(...)."
41 The Government state that representation pursuant to Section 270
of the Code of Criminal Procedure is possible in relatively minor
criminal cases concerning offences not punishable by a prison sentence
and that, in practice it is admitted in cases where the facts are
scarcely disputed, if at all, and in which an accused's appearance in
person is not deemed necessary for the trial.
42 The Government submit that, apart from regulations pertaining to
minors, Dutch law contains no obligation for an accused to appear at
the court hearing of his case. If an accused chooses to be absent from
the hearing, he also renounces the possibility of defence. In that case
it is by no means a forgone conclusion that the accused may arrange to
be defended in absentia by counsel. However, taking account of the
Convention, criteria have been developed in Dutch case-law, in respect
of hearings involving an offence punishable by a prison sentence, for
allowing counsel to act as such in cases where the accused cannot be
present in court. Counsel may act on the accused's behalf if the court
finds that compelling reasons prevent the accused from appearing at the
session and if the court finds no grounds to adjourn the hearing.
43 The Government state that on appeal the procurator-general
(procureur-generaal) requested a twelve years' prison sentence for
intentional importation of heroin. It is not beyond the bounds of
probability that the risk that the applicant would be imprisoned
immediately when he would appear at the hearing before the Court of
Appeal was the reason for his failure to appear in court, given that
he would have had reason to suspect that the Court of Appeal might
quash the Regional Court's judgment and impose a different sentence.
44 With reference to the Supreme Court's judgment of
24 October 1989, the Government submit that representation within the
meaning of Section 270 of the Code of Criminal Procedure was not
possible since the offence at issue is punishable by a prison sentence.
At the hearings of 20 November 1987 and 22 January 1988 before the
Court of Appeal, the applicant's counsel did not argue that compelling
reasons prevented the applicant from attending his trial before the
Court of Appeal. Therefore the Supreme Court could only examine the
rejection of counsel's request to represent him pursuant to Section 270
and could not examine the Court of Appeal's first decision of
10 February 1987, when it rejected counsel's request - invoking the
existence of compelling reasons for the applicant's absence - to defend
the applicant as the Court of Appeal had changed its composition and
had recommenced its examination.
45 The Government submit that the applicant's residence abroad did
not justify his absence from his trial. The Netherlands did not prevent
him from attending his trial in the Netherlands.
46 The applicant submits that not only the public prosecutor but
also he filed an appeal against the decision of the Regional Court of
21 August 1986 and that he provided his lawyer with a written
authorisation to represent him in the appeal proceedings.
47 He submits that the Court of Appeal should have adjourned its
examination pursuant to Section 270 following the rejection of his
counsel's request. He was entitled to assume that, following two
adjournments attributable to the public prosecution, the Court of
Appeal would not suddenly deal with his case in his absence without an
adjournment, as he could not be expected to make the long and expensive
journey from Mauritius to Amsterdam, running the risk that the case
might then not be dealt with.
48 The applicant contests the Government's allegation that he did
not appear before the Court of Appeal for fear of immediate arrest. He
submits that a request for his immediate arrest would have been
rejected by the court.
49 The applicant finally submits that the compelling reason for his
absence at hearing of his case was not just the fact that he was
residing abroad, but that he resides in Mauritius, which lies at a
considerable distance from Amsterdam and that he should have been able
to rely on his counsel for his defence or at least expect, when
representation was refused, that the hearing would be adjourned.
50 The Commission recalls that the guarantees in para. 3 of
Article 6 (Art. 6-3) of the Convention are specific aspects of the
right to a fair trial set forth in para. 1 of this provision (cf. Eur.
Court H.R., Barberà, Messegué and Jabardo judgment of 6 December 1988,
Series A no. 146, p. 31, para. 67). It will therefore examine the
applicant's complaint on the basis of these provisions taken together.
51 The Commission notes that the Regional Court, following
proceedings the applicant attended in person, in its judgment of
21 August 1986 convicted the applicant of unintentional importation of
heroin, sentenced him to six months' imprisonment and ordered his
release, and that he was subsequently expelled from the Netherlands.
The Commission further notes that both the public prosecutor and the
applicant, assisted by his counsel, filed an appeal against the
judgment of 21 August 1986, and that on 5 February 1988 the Court of
Appeal of Amsterdam quashed the judgment of 21 August 1986, convicted
the applicant in absentia of intentional importation of heroin and
sentenced him to nine years' imprisonment.
52 The Commission recalls that the guarantees set forth in Article 6
(Art. 6) of the Convention are in principle applicable to appeal
proceedings (cf. Eur. Court H.R., Delcourt judgment of 7 January 1970,
Series A no. 11, pp. 13-15, para. 25).
53 The Commission notes that the applicant's counsel was present at
the hearings before the Court of Appeal and that he repeatedly
expressed the wish to conduct the applicant's defence.
54 The Commission further notes that the case concerned serious
charges and that the Court of Appeal was, inter alia, called upon to
examine the appeal by the prosecution seeking a conviction for
intentional importation of heroin and requesting a sentence of twelve
years' imprisonment, whilst the applicant in first instance had been
convicted of unintentional importation of heroin and sentenced to six
months' imprisonment.
55 Under Article 6 para. 3 (c) (Art. 6-3-c) everyone charged with
a criminal offence may defend himself in person or "through legal
assistance of his own choosing" ("avoir l'assistance d'un défenseur de
son choix"). The applicant did not defend himself in person at his
trial before the Court of Appeal, since he was residing in Mauritius.
He claims that he was denied the right to defend himself "through legal
assistance of his own choosing", i.e. through counsel who was present
for him at the trial before the Court of Appeal.
56 The Commission does not consider that the right to defend oneself
through legal assistance can only be invoked by defendants who are
themselves present at their trial. Nor does it find that a distinction
can be made, as regards entitlement to this right, between defendants
who are duly represented pursuant to Section 270 of the Code of
Criminal Procedure and defendants who are duly represented by defence
counsel.
57 It follows that, although he failed to appear before the Court
of Appeal, the applicant was entitled under Article 6 para. 3 (c)
(Art. 6-3-c) to "legal assistance of his own choosing" at his trial
before the Court of Appeal. Therefore, in order to comply with this
provision, the Court of Appeal should have allowed counsel for the
applicant, who was present in the applicant's place, to make
submissions on the applicant's behalf. However, in accordance with
Dutch rules on representation pursuant to Section 270 of the Code of
Criminal Procedure, this was not done and the applicant was
subsequently found to be in default of appearance.
58 The Commission notes that the applicant could file an appeal in
cassation to the Supreme Court, of which opportunity he did in fact
avail himself. However this appeal was limited to points of law and,
therefore, did not lead to a fresh determination of the criminal
charges against him.
59 The Commission is of the opinion that the position adopted in
Dutch law, that an accused who does not attend his trial in person in
principle loses his right to defend himself through his counsel, is
incompatible with the respect for the fundamental guarantees which
every person charged with a criminal offence should enjoy. The need to
secure the attendance of an accused at the trial of his case cannot
justify proceeding to judgment against him without hearing the defence
he wishes to put forward through his counsel.
60 Considering the case under the general "fair hearing" clause of
Article 6 para. 1 (Art. 6-1) the Commission notes that the Court of
Appeal, after having quashed the conviction by the Regional Court,
convicted and sentenced the applicant after having heard the
procurator-general but without having given the floor to counsel for
the defence, who was present at the respective hearings. This infringed
the principle of equality of arms, an essential element of the right
to a fair trial. Moreover, having regard to the prominent place the
right to a fair trial holds in a democratic society, this infringement
can again not be justified by the need to secure the defendant's
attendance at the hearing of his case.
D. Conclusion
61 The Commission concludes unanimously that there has been a
violation of Article 6 para. 1 in conjunction with Article 6 para. 3(c)
(Art. 6-1+6-3-c) of the Convention.
Secretary to the Commission President of the Commission
(H.C. Krüger) (C.A. Nørgaard)
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
___________________________________________________________________
17 April 1990 Introduction of application
18 June 1990 Registration of application
Examination of admissibility
9 November 1990 Commission's decision to
invite the Government to
submit their observations
on the admissibility and
merits of the application
31 January 1991 Government's observations
17 May 1991 Applicant's observations in
reply
11 January 1993 Commission's decision to
declare the applicantion
admissible.Commission's
decision to invite the parties,
should they so desire, to
submit further observations on
the merits of the application
Examination of the merits
26 February 1993 Government's further
observations
4 May 1993 Commission's deliberations
on the merits, final vote
and adoption of the Report
Full & Egal Universal Law Academy