AS TO THE ADMISSIBILITY OF
Application No. 24588/94
by Petrus Hubertus VAN ULDEN
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
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 3 June 1992 by
Petrus Hubertus VAN ULDEN against the Netherlands and registered on
12 July 1994 under file No. 24588/94;
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
21 March 1996 and the observations in reply submitted by the
applicant on 10 June 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch citizen, born in 1956, and residing in
Kerkrade, the Netherlands. Before the Commission he was initially
represented by Ms M. Hegeman, a lawyer practising in Maastricht, who
was succeeded by Ms T. Spronken, also a lawyer practising in
Maastricht.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. The particular circumstances of the case
On 31 October 1991, the applicant was arrested on the suspicion
of having committed eight car thefts. When the public prosecutor
(officier van justitie) on 1 November 1991 ordered him to be taken into
police custody (inverzekeringstelling) the applicant requested to be
legally assisted by his lawyer Ms Hegeman, who had already been
assigned to represent him in two other criminal prosecutions instigated
against him.
Due to the fact that Ms Hegeman was unavailable at that moment,
the applicant was visited at the police station by Mr W., the lawyer
on call (piket-advocaat), who provided him with legal assistance in
respect of his detention in police custody (inverzekeringstelling).
Mr W. subsequently represented the applicant when the Investigating
Judge (Rechter-Commissaris) dealt with the public prosecutor's request
to have the applicant detained on remand (voorlopige hechtenis).
On 5 November 1991 the applicant telephoned Ms Hegeman and asked
her to represent him. Thereupon, Ms Hegeman informed Mr W. by telephone
of the applicant's request. However, Mr W. refused to relinquish the
case and was officially designated as legal aid defence counsel to the
applicant by decision of 6 November 1991 of the Acting President of the
Maastricht Regional Court (Arrondissementsrechtbank).
On 7 November 1991 the applicant was represented by Mr W. in the
proceedings before the Regional Court which ordered the applicant's
continued detention on remand.
On 18 and 28 November and 4 December 1991 the applicant and/or
Ms Hegeman requested the President of the Regional Court to amend the
assignation whereby Mr W. was appointed as legal aid defence counsel
to the applicant. In his letter of 4 December 1991, the applicant
stated that the reason for his request was that he had no confidence
in Mr W. given the latter's inappropriate remarks to him about Ms
Hegeman. Hereupon, the President informed Ms Hegeman on 4 December 1991
that he could see no immediate cause to amend the assignation as
requested.
The applicant also complained in writing to the Dean of the
Regional Bar Association (Deken van de Orde van Advocaten in het
Arrondissement Maastricht) on 3 December 1991 that Mr W., despite the
fact that the applicant had no confidence in him, did not wish to
relinquish his case. The applicant requested the Dean to be allowed to
be represented by Ms Hegeman, whom he trusted. That same day Ms Hegeman
requested the Dean to mediate in the conflict.
Mr W. was not present on 5 December 1991 when the Regional Court
examined the prosecution's demand that the applicant's detention on
remand should be prolonged. The following day the applicant requested
the President of the Regional Court to revise his earlier decision not
to amend the assignation of Mr W. Also on 6 December 1991 Ms Hegeman
requested the President to assign her instead of Mr W. as legal aid
defence counsel to the applicant.
On 10 December 1991, the President informed the Dean of the
Regional Bar Association that at that time he saw no reason to amend
the assignation, upon which Ms Hegeman filed a complaint with the Dean
on 11 December 1991 against Mr W. for having acted contrary to the
Rules of Conduct for Lawyers (Gedragsregels voor Advocaten).
Ms Hegeman represented the applicant on 31 December 1991 before
the Regional Court where a further request for the prolongation of the
applicant's detention on remand was examined. The Regional Court
decided to release the applicant. Since Mr W., who had not been present
at the hearing, had not given Ms Hegeman permission to represent the
applicant, he filed a complaint against Ms Hegeman with the Dean.
On 7 January 1992, the Dean informed the parties that in his
opinion Mr W. should relinquish the applicant's case. As Mr W. refused
to do so, the Dean referred the complaints which had been lodged with
him to the Disciplinary Board (Raad van Discipline) of Den Bosch.
On 4 February 1992, a hearing took place before the Regional
Court in several criminal proceedings against the applicant, including
the one where Mr W. had been assigned legal aid defence counsel and
several others in which Ms Hegeman had been so assigned.
Mr W. requested the Court to record his presence at the hearing.
Following mediation by the Dean and consultation with the President of
the Regional Court, the judge presiding over the hearing allowed
Ms Hegeman to examine the documents pertaining to the proceedings in
which Mr W. had been assigned. At the hearing this judge further stated
that Ms Hegeman would be able to conduct the defence in these
proceedings. The hearing was then adjourned as the applicant was unable
to attend.
A hearing before the Disciplinary Board took place on 1 June 1992
during which Mr W. was three times requested by the President of the
Board to relinquish the case since the relationship between Mr W. and
the applicant was no longer based on trust. However, Mr W. refused,
saying that he had been appointed by the President of the Regional
Court and that the latter had not found it necessary to amend this
assignment.
On 6 July 1992, the Disciplinary Board decided that it could not
deal with the applicant's complaint against Mr W., since his letter
merely contained a request for the assignment of Ms Hegeman and not a
complaint directed against Mr W.
The Disciplinary Board declared Ms Hegeman's complaint against
Mr W. inadmissible. It held that the dispute between the applicant and
Mr W. did not directly concern her. Pursuant to Article 56 of the Act
on the Legal Profession (Advocatenwet) no appeal to the Disciplinary
Court (Hof van Discipline) lies against a decision of inadmissibility.
A complaint filed by Mr W. against Ms Hegeman concerning her
visit to the applicant whilst he was detained on remand was declared
ill-founded by the Disciplinary Board since Ms Hegeman represented the
applicant in different proceedings and she was therefore entitled to
visit him. As regards the complaint that Ms Hegeman had represented the
applicant on 31 December 1991 without the permission of Mr W., the
Disciplinary Board held that Mr W. could not object to the interests
of his client being looked after in his absence. The Board declared
this complaint inadmissible.
In the criminal proceedings before the Regional Court against the
applicant a hearing took place on 20 November 1992. Mr W. did not
appear and Ms Hegeman conducted the applicant's defence also in the
case in which Mr W. had been assigned. Ms Hegeman subsequently sent an
invoice to the applicant which has so far not been paid.
On 4 December 1992 the Regional Court convicted the applicant of
all offences he had been charged with and sentenced him to seventeen
months' imprisonment with deduction of the time spent in pre-trial
detention. The applicant did not appeal against this judgment.
B. Relevant domestic law
If an accused who is being detained in police custody
(inverzekeringstelling) has not chosen a defence counsel, the
prosecution department informs the lawyer "on call" without delay.
This lawyer will represent the accused for the duration of the
police custody (Article 40 of the Code of Criminal Procedure - Wetboek
van Strafvordering, hereinafter "CCP").
If, following the expiration of the police custody, detention on
remand (voorlopige hechtenis) is ordered the President of the Regional
Court assigns legal aid defence counsel ex officio (Article 41 para.
1 (a) CCP).
The assignment of a legal aid defence counsel covers the entire
proceedings for each particular level of jurisdiction (Article 43 CCP),
including the period for filing an appeal to an appeal court. Pursuant
to Article 45 para. 2 CCP, an accused may request to be assigned
another legal aid defence counsel.
COMPLAINT
The applicant complains under Article 6 para. 3 (c) of the
Convention that in the criminal proceedings against him he did not
receive free legal assistance of his own choosing.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 June 1992 and registered on
12 July 1994.
On 17 January 1996 the Commission decided to communicate the
application to the respondent Government and to invite them, pursuant
to Rule 48 para. 2 (b) of the Rules of Procedure, to submit written
observations on the admissibility and merits of the application.
The Government's written observations were submitted on 21 March
1996. The applicant replied on 10 June 1996.
THE LAW
The applicant complains under Article 6 para. 3 (c) (Art. 6-3-c)
of the Convention that in the criminal proceedings against him he did
not receive free legal assistance of his own choosing.
Article 6 para. 3 (c) (Art. 6-3-c) of the Convention reads as
follows:
"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 or, if he has not sufficient means
to pay for legal assistance, to be given it free when the
interests of justice so require;
..."
The Government submit in the first place that the applicant
failed to comply with the requirement of exhaustion of domestic
remedies under Article 26 (Art. 26) of the Convention in that he
himself failed to file a disciplinary complaint against Mr W.
The Government further submit on this point that it does not
appear that the applicant and Ms Hegeman raised the question of the
failure to change the assignment - as they saw it - in the criminal
proceedings against the applicant, where Ms Hegeman was allowed to
conduct the applicant's defence.
As to the substance, the Government submit that, in conformity
with the relevant regulations, the authorities tried to contact Ms
Hegeman at the relevant time as the applicant had stated he wished to
be represented by her. As she was unavailable at that time, the
applicant was represented by the duty lawyer, Mr W. In such cases,
pursuant to Articles 41 and 42 of the CCP, the assigned lawyer remains
assigned for the rest of the proceedings. The Government consider that
limitations on the change of legal aid lawyers are necessary. After a
legal aid lawyer is appointed, he is expected to study the case
thoroughly, which means that only if he continues with the case those
efforts will be rewarded.
The Government further submit that, according to the case-law of
the Convention organs, a free choice of a legal aid lawyer is not an
absolute right. Under Article 45 of the CCP, both the assigned lawyer
and the suspect may request that another lawyer be assigned. In
practice, this does not happen unless there are good grounds for doing
so. The Government consider that there has been no violation of Article
6 para. 3 (c) (Art. 6-3-c) of the Convention in the present case, as
the applicant has never indicated in what way Mr W. did not function
properly in the exercise of the applicant's defence and, in view of the
conflict between Mr W. and Ms Hegeman, the President of the Regional
Court dealing with the criminal proceedings against the applicant
allowed Ms Hegeman, in addition to Mr W., to inspect the documents and
defend the applicant.
The applicant submits that he has complied with the exhaustion
requirement. In his view, to lodge a complaint himself against Mr W.
does not constitute an effective and adequate remedy within the meaning
of Article 26 (Art. 26) of the Convention, as at the time the
Disciplinary Board rejected his complaint on 6 July 1992 the first
hearing in the criminal proceedings had already been held, i.e. on
4 February 1992.
The applicant further submits that this remedy cannot be regarded
as effective, as, even assuming that his complaint had been held to be
well-founded by the Disciplinary Board, the competence to assign a
legal aid lawyer to suspects in pre-trial detention belongs exclusively
to the President of the Regional Court.
As to the substance, the applicant submits that he informed the
Regional Court of Maastricht repeatedly that he had absolutely no
confidence in Mr W. In his opinion the court itself could have
concluded that Mr W. was not functioning properly given his absence at
the hearings on the extension of the applicant's pre-trial detention
and the fact that, at the hearing held on 4 February 1992, Mr W.
appeared, requested the Regional Court to record his presence in order
to be able to obtain his legal aid fee and left the hearing
immediately.
Relying, inter alia, on the European Court's judgment of 25 April
1983 in the case of Pakelli v. Germany (Series A no. 64), the applicant
argues that Article 6 para. 3 (c) (Art. 6-3-c) of the Convention
includes the right for an accused person to have recourse to free legal
assistance of his own choosing.
Given the attitude of Mr W. and the obvious conclusions which the
court could draw from the way in which Mr W. performed his duties as
legal aid lawyer in the present case, whereas Ms Hegeman was prepared
to defend him and in fact did so, the applicant considers it
incomprehensible why he should have to bear the costs of legal
assistance. He considers that the Dutch authorities fell short of their
obligations under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention
by failing to comply with his request to assign Ms Hegeman as his legal
aid lawyer.
The Commission does not find it necessary to determine whether
or not the applicant has duly exhausted domestic remedies within the
meaning of Article 26 (Art. 26) of the Convention, as in any event the
complaint is manifestly ill-founded on the following grounds.
The Commission recalls that a person charged with a criminal
offence, who does not wish to defend himself in person, must be able
to have recourse to legal assistance of his own choosing and that, if
he does not have sufficient means to pay for such assistance, he is
entitled under the Convention to be given it free when the interests
of justice so require (Eur. Court HR, Pakelli v. Germany judgment of
25 April 1983, Series A no. 64, p. 15, para. 31).
However, notwithstanding the importance of a relationship of
confidence between lawyer and client, the right under Article 6 para.
3 (c) (Art. 6-3-c) of the Convention for an accused to be defended by
counsel of his own choosing cannot be considered to be absolute. It is
necessarily subject to certain limitations where free legal aid is
concerned and also where it is for the courts to decide whether the
interests of justice require that the accused be defended by counsel
appointed by them. When appointing defence counsel the national courts
must certainly have regard to the defendant's wishes. However, the
courts can override those wishes when there are relevant and sufficient
grounds for holding that this is necessary in the interests of justice
(cf. Eur. Court HR, Croissant v. Germany judgment of 25 September 1992,
Series A no. 237-B, p. 32-33, para. 29).
As regards the present case, the Commission notes that, on
1 November 1991, the applicant did request Ms Hegeman's appointment as
his legal aid lawyer. The Commission further notes that the authorities
acceded to this request and attempts were made to contact her. However,
as she was not available at that time and the applicant required
immediate legal assistance, the legal aid lawyer "on call", i.e. Mr W.,
was appointed, and he did in fact provide the applicant with legal
assistance in connection with the latter's pre-trial detention.
The Commission cannot find this course of action contrary to
Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.
The Commission further considers that it does not appear from the
facts of the case that, at any point in the domestic proceedings, the
applicant raised complaints alleging that Mr W. fell short of his
professional obligations as the applicant's defence lawyer. The
applicant did in fact request Mr W. to be replaced by Mrs Hegeman but,
insofar as can be established, this request was not based on an alleged
lack of quality of Mr W.'s professional activities in the applicant's
case, but on Ms Hegeman's activities as legal aid lawyer in two other
criminal procedures against the applicant.
It appears from the applicant's letters to the President of the
Regional Court and the Dean of the Regional Bar Association that the
applicant's request for Mr W.'s replacement was founded on his lack of
confidence in Mr W. and that the applicant's only reason for holding
this opinion was that certain inappropriate remarks about Ms Hegeman
had allegedly been made by Mr W. The applicant's opinion was not based
on the quality of Mr W.'s activities as the applicant's defence lawyer.
The Commission cannot find it unreasonable, in view of the
general desirability of limiting the total costs of legal aid, that
national authorities take a restrictive approach to requests to replace
legal aid lawyers once they have been assigned to a case and have
undertaken certain activities in such a case.
In the particular circumstances of the present case, the
Commission cannot find that the refusal to replace Mr W. by Ms Hegeman
as the applicant's legal aid lawyer infringed the applicant's rights
under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention as the
request for the replacement of Mr W. was not based on reasons which
could reasonably be regarded as sufficient for reaching the conclusion
that the effectiveness of the applicant's defence was no longer
secured.
Finally, the Commission notes that the trial court did in fact
grant Ms Hegeman access to the applicant's case-file and allowed her
to conduct the applicant's defence.
In these circumstances, the Commission cannot find that the
refusal to replace Mr W. by Ms Hegeman as the applicant's legal aid
lawyer affected the fairness, within the meaning of Article 6 (Art. 6)
of the Convention taken as a whole, of the proceedings at issue.
It follows that the application must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy