VAN SOEST v. the NETHERLANDS



                      AS TO THE ADMISSIBILITY OF

                      Application No. 23737/94

                      by Mario André Antonio Alexander VAN SOEST

                      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 2 May 1994 by

Mario André Antonio Alexander VAN SOEST  against the Netherlands and

registered on 6 May 1994 under file No. 23737/94;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the Commission's decision of 30 November 1994 to communicate the

     application;

-    the observations submitted by the respondent Government on

     16 February 1995;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a Dutch citizen, born in 1957, and resides at

Amsterdam. Before the Commission he is represented by

Mr. H.G. Kersting, a lawyer practising in Amsterdam.

     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 17 July 1991 the applicant was summoned to appear

before the Magistrate (Politierechter) at the Regional Court (Arrondis-

sementsrechtbank) of Amsterdam on charges of theft. On 21 October 1991,

following a hearing at which neither the applicant nor his lawyer had

appeared, the Magistrate convicted the applicant, in absentia, of theft

and sentenced him to two months' imprisonment.

     On 4 November 1991, the applicant filed an appeal against the

Magistrate's judgment. On 10 December 1992, a hearing was held by the

Court of Appeal (Gerechtshof) of Amsterdam. The applicant's lawyer

requested the court to adjourn its examination as the applicant had

been admitted to hospital for an operation. The Court of Appeal

adjourned the hearing until 4 March 1993.

     On 4 March 1993, the applicant did not appear before the Court

of Appeal. His lawyer, however, was present. According to the minutes

of this hearing the applicant's lawyer was unable to provide the court

with compelling reasons (klemmende redenen) for the applicant's

absence. The Court of Appeal subsequently declared the applicant in

default of appearance and started its examination. The applicant's

lawyer was not provided with the opportunity to conduct the defence of

the applicant in view of the latter's absence.

     On 18 March 1993, the Court of Appeal quashed the Regional

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

and sentenced him to two months' imprisonment.

     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

paras. 1 and 3 (c) of the Convention.

     In its judgment of 14 December 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 for 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 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."

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 paras. 1, 2 and 3 (c) of

the Convention that at the hearing of 4 March 1993 before the Court of

Appeal of Amsterdam, 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 2 May 1994 and registered on

6 May 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 informed the Commission on 28 April 1995

that, in view of the Government's observations, he did not wish to

avail himself of the opportunity to submit observations in reply.

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, 2 and 3 (c)

(Art. 6-1, 6-2, 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 ... .

     2.    Everyone charged with a criminal offence shall be presumed

     innocent until proved guilty according to law.

     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 Commission considers in the first place that there is no

appearance of a violation of the principle of presumption of innocence

as guaranteed by Article 6 para. 2 (Art. 6-2) of the Convention.

     It follows that in this respect the complaint is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

     The Commission further 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 complaint under

Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention raises

questions of fact and law which require an examination of the merits.

This part of the application 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 ADMISSIBLE, without prejudging the merits of the case,

     the applicant's complaint that his defence lawyer was not allowed

     to conduct the defence in the absence of the applicant;

     DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber      President of the Second Chamber

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

 

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