Communicated on 17 December 2015
THIRD SECTION
Application no. 23192/15
Hugo Johannes Charles VAN DE KOLK
against the Netherlands
lodged on 8 May 2015
STATEMENT OF FACTS
1. The applicant, Mr Hugo Johannes Charles van de Kolk, is a Dutch national, who was born in 1990 and lives in Alphen aan den Rijn. He is represented before the Court by Mr R.A. Korver, a lawyer practising in Amsterdam.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The arrest and questioning of the applicant
3. On 19 August 2009 the applicant, who was then nineteen years of age, was arrested on suspicion of distribution of child pornography (three pictures of a 16-year-old girl).
4. Later that same day, and with the consent of the applicant, police officers started questioning him about his personal circumstances. The questioning began before he had consulted his lawyer, who had not been available at the time. After the questioning had started, the applicant’s lawyer became available and the police officers suspended the interview to give the applicant the opportunity to consult the lawyer by telephone. After that conversation, the questioning about the applicant’s personal circumstances was resumed, but the applicant did not answer any more questions. After the interview, the lawyer visited the applicant at the police station.
5. On 20 August 2009 police officers started to question the applicant about the distribution of child pornography. At the beginning of the interview, the applicant stated that he preferred to have his lawyer present. That request was turned down and the interview was continued.
6. In the course of the interview, the police officers questioning the applicant noted that he made a spasm-like movement with his arm. They asked him whether he was having an epileptic fit. The applicant confirmed that he was and added that it could have been caused, among other things, by stress. The police officers then decided to interrupt the interview and consult a doctor. The interview was resumed later.
7. On 21 August 2009 the applicant was again questioned. It is unclear if the applicant’s lawyer was present at that time. Audio recordings were made of all the interviews.
8. The applicant was released from custody on 21 August 2009.
B. The proceedings before the domestic courts
9. On 25 March 2011 the Regional Court (rechtbank) of The Hague found the applicant guilty of distribution of child pornography. On 3 July 2013 the Court of Appeal (gerechtshof) of The Hague quashed the decision of the Regional Court, convicted the applicant of the same offence and sentenced him to forty hours’ community service. The statement made by the applicant on 20 August 2009 was used in evidence by both the Regional Court and the Court of Appeal.
10. The Court of Appeal rejected the applicant’s claim that a lawyer should have been present during the police interviews, holding that the applicant had already consulted his lawyer the previous day, that he was older than 18 and that his claim that he functioned at the level of a minor was unsubstantiated.
11. On 18 November 2014 the Supreme Court (Hoge Raad) rejected an appeal on points of law by the applicant. It dismissed his complaint about the refusal to have a lawyer present during police questioning with summary reasoning, pursuant to Article 81 of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie). Under that provision, the Supreme Court may limit its reasoning in a decision to a finding that a complaint does not provide grounds to overturn the judgment appealed against or does not require answers to questions of law in the interests of the uniform application or development of the law.
COMPLAINT
The applicant complains under Article 6 § 3 of the Convention that he did not have the assistance of a lawyer while being questioned by the police.
QUESTION TO THE parties
Having regard to the Court’s case-law (see, inter alia, Salduz v. Turkey (GC), no. 36391/02, §§ 54-55, ECHR 2008), has there been a breach of Article 6 §§ 1 and 3 (c) of the Convention as a result of the lack of legal assistance available to the applicant during his questioning by the police?
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