CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 janvier 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    AS TO THE ADMISSIBILITY OF   Application No. 13536/88 by A.H. against the Netherlands     The European Commission of Human Rights sitting in private on 8 January 1992, the following members being present: MM.C.A. NØRGAARD, President S. TRECHSEL F. ERMACORA G. SPERDUTI E. BUSUTTIL G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H.G. SCHERMERS H. DANELIUS Mrs.G. H. THUNE SirBasil HALL MM.F. MARTINEZ RUIZ C.L. ROZAKIS Mrs.J. LIDDY MM.L. LOUCAIDES J.-C. GEUS M.P. PELLONPÄÄ B. MARXER   Mr. H.C. KRÜGER, Secretary to the Commission     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 December 1987 by A.H. against the Netherlands and registered on 15 January 1988 under file No. 13536/88;   Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The applicant is a Dutch citizen, born in 1958 and residing in Amsterdam.   He is a merchant.   Before the Commission he is represented by Mr. H. Loonstein, a lawyer practising in Amsterdam.         The facts as submitted by the parties may be summarised as follows.   Some of the facts are disputed between the parties.         On 5 March 1984, the National Police stopped the applicant for having exceeded the maximum speed limit with approximately 60 km. In his presence the police drew up an official report, which was subsequently sent to the public prosecutor.         According to the Government, the public prosecutor issued on 10 June 1984 a summons, ordering the applicant to appear before the District Court (Kantongerecht) of Utrecht on 23 August 1984 on the charge of speeding.         On 16 July 1984 the summons was presented to the applicant's verified home address.   It could not be served to the applicant as nobody was at home.   A notification (kennisgeving) was left behind, stating where he should collect the judicial document from the public prosecutor.   According to the Government the applicant failed to respond to this notification.   The applicant states never to have received this notification.   In accordance with the procedural rules under Dutch law, on 3 August 1984 the summons was served by being presented to a municipal civil servant at the Amsterdam Town Hall, especially appointed for these matters by the head of the local authorities.         On 23 August 1984 the District Court convicted the applicant in absentia and sentenced him to a fine of 750 guilders and a suspension of his driving licence for a period of 4 months with a probationary period of two years.         On 4 October 1984 the applicant authorised in writing a civil servant at the District Court's Registry to file an appeal on his behalf.   The appeal was lodged the same day.         Three unsuccessful attempts to serve the above judgment on the applicant were made on respectively 19 October 1984, at which occasion a notification was left behind, and on 3 and 6 December 1984 with a notice (oproep) to appear at the Court House left behind on the latter date.   As the applicant responded to the notice, the District Court's judgment was served on the applicant in person on 18 December 1984.         According to the Government the summons to appear before the Regional Court (Arrondissementsrechtbank) on appeal on 20 June 1985 was unsuccessfully presented to the applicant's verified home address on 20 May 1985.   A notice (oproep) stating that the applicant should present himself at the Amsterdam Court House was left behind, to which the applicant failed to respond. The applicant states never to have received this notice.         On 22 May 1985 the summons was served by being presented to the special appointed municipal civil servant at the Amsterdam Town Hall.     On 4 July 1985 the Regional Court quashed the District Court's judgment, convicted the applicant in absentia and sentenced him to a 750 guilders fine and a suspension of his driving licence for a period of 4 months with a probationary period of one year.   According to the Government, the applicant was placed on the list of wanted persons after four unsuccessful attempts on respectively 27 August, 18 September, 10 October and 27 November 1985 to serve the Regional Court's judgment on the applicant.   On each of those occasions a notice was left behind, to which the applicant failed to respond.         According to the applicant he was informed for the first time about the Regional Court's judgment on 5 July 1986 by the police, when passing through customs at Schiphol Airport.         By letter of 11 July 1986 the applicant's lawyer sent a written authority signed by the applicant to the Registrar of the Regional Court, authorising the latter to file an appeal in cassation, on the applicant's behalf, which appeal was lodged on 14 July 1986. The Supreme Court (Hoge Raad) rejected the appeal on 9 June 1987. The Supreme Court held, inter alia, that there was no indication that the Public Prosecution had failed in its due care concerning the timely serving of the summons in first instance and on appeal.   The Supreme Court considered that the procedure followed was in accordance with the applicable legal provisions, whereas no indication could be derived from the documents concerning the applicant's trial of the existence of facts and circumstances which might have harmed the applicant's interests.   These interests would have been the avoidance of a situation, where the applicant was absent at his trial due to his unawareness of the date and time of the court's handling of his case.     DOMESTIC LAW AND PRACTICE         The procedure for serving, inter alia, a summons was, at the time the events in the present case took place, provided for in Article 588 of the Code of Penal Procedure, which reads, insofar as relevant, as follows:   <Dutch>   "Art. 588-1. De uitreiking geschiedt: (...) b. aan alle anderen: in persoon of, indien betekening niet in persoon is toegelaten en het stuk wordt aangeboden in Nederland aan hun woon- of verblijfplaats en zij daar niet worden aangetroffen, aan degene die zich in het huis bevindt en die zich bereid verklaart om het stuk onverwijld aan hem voor wie het bestemd is te doen toekomen. (...) -3. Wordt in het geval bedoeld in het eerste lid, onder b, niemand aangetroffen, of is niemand bereid het schrijven in ontvangst te nemen, dan geschiedt, onder achterlating van een kennisgeving, de uitreiking, tenzij de persoon voor wie het bestemd is het voordien heeft afgehaald of doen afhalen, aan het hoofd van het plaatselijk bestuur of een door deze aangewezen ambtenaar.   Deze doet het schrijven zo mogelijk alsnog toekomen aan de persoon voor wie het bestemd is, zonder dat van dit laatste echter in rechte zal behoeven te blijken." <Translation>   "Art.588.-1 The serving takes place: (...) b. to all others: in person or, in case the serving in person is not permitted and the document is presented in the Netherlands to their permanent or temporary domicile and they are not found there, to the one who finds himself in the house and who declares himself willing to pass the documents without delay on to whom the document is intended for. (...) -3. If, in the case referred to in the first paragraph, under b, no one is found, or no one is willing to accept the document, then the serving, while leaving behind a notification, takes place to the head of the local authorities or to a civil servant appointed by the latter, unless the person for whom it (the document) is intended has collected it himself or someone acting on his behalf has done so.   This person (the head of the local authorities or the appointed civil servant), if possible, forwards the document to the person for whom it is intended, however without it being necessary that the latter be proven in court."     Concerning the procedure before the District Court Article 398 of the Code of Penal Procedure insofar as relevant, stipulates:   <Dutch>   "Art.398. Op het rechtsgeding bij het kantongerecht zijn (...) van overeenkomstige toepassing, behoudens de navolgende uitzonderingen: 1. De termijn van dagvaarding is tenminste drie dagen (...)."   <Translation>   "Art. 398. To the proceedings before the District Court equally apply (...), save for the following exceptions: 1. The summons must be served giving at least three days notice (...)."   Concerning the procedure before the Regional Court Article 265 para. 1 of the Code of Penal Procedure stipulates, insofar as relevant:   <Dutch>   "Art.265.1. Op straffe van nietigheid moet tussen de dag waarop de dagvaarding aan de verdachte is betekend, en die der terchtzitting een termijn van ten minste tien dagen (...) verlopen."     <Translation>   "Art. 265.1. On penalty of nullity a period of at least ten days must have passed between the day on which the summons has been served on the suspect and the day of the court hearing (...)."   The rules governing the procedure of the serving of judicial documents have been slightly changed by the Act of Parliament of 24 April 1985.   According to the present rules a summons is returned to the authority, which issued it, when it is impossible to serve it on the accused in person or on someone, present at the home address of the accused willing to pass it on to the accused without delay and when neither the accused nor someone else, authorised to act on his behalf, have responded to the notification which is left behind.         The serving of the summons then takes place by presenting the summons to the Registrar of the Regional Court, before which, or in whose judiciary district, the case will be heard or has been heard previously.   The Registrar will then forward the summons by normal mail to the home address of the accused.     COMPLAINT         The applicant complains that he did not receive a fair hearing within the meaning of Article 6 of the Convention, as he was not properly informed of the nature and cause of the charges held against him, and because he was not present at the hearings of his case in first instance and on appeal, as the summonses to appear at these hearings were not served on him in person.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 3 December 1987 and registered on 15 January 1988.         On 14 December 1989 the Commission decided to bring the application to the notice of the respondent Government and to invite them pursuant to Rule 42 para. 2 (b) of its Rules of Procedure (former version) to submit written observations on its admissibility and merits.         The respondent Government's observations were submitted on 2 March 1990 and the reply thereto by the applicant on 11 May 1990.         On 25 April 1991 the respondent Government was requested to submit relevant documents in support of the Government's observations.         These documents were submitted on 14 May 1991 and communicated to the applicant for comments.         The applicant's comments were submitted on 12 June 1991.     THE LAW   The applicant complains that he did not have a fair hearing as he was not properly informed of the nature and cause of the charges held against him, and because he was not present at the hearings of his case in first instance and on appeal, as the summonses to appear were not served on him in person.   The applicant invokes Article 6 (Art. 6) of the Convention, which, insofar as relevant, reads:   1.    In the determination of (...) any criminal charge against him, everyone is entitled to a fair (...) hearing (...) by a (...) tribunal established by law.   (...)   3.    Everyone charged with a criminal offence has the following minimum rights:   (a) to be informed promptly, (...) in detail, of the nature and cause of the accusation against him; (...)       (c) to defend himself in person (...)."   The Government contend that there has been no violation of the principle of fair hearing   The judgments in first instance and on appeal were given in absentia, as the applicant failed to appear in court, whereas the summonses to appear at the respective hearings were served with due care and in accordance with the procedural requirements under Dutch law.   The Government consider that since the applicant had lodged an appeal against the judgment of the District Court, he could have expected a hearing before the Regional Court and could have made inquiries on the date of this hearing.   Furthermore by disregarding the notifications left behind at his home address he ran the risk that his case would be heard in his absence.         The applicant submits that there is no duty, statutory or otherwise, to ascertain for oneself the date and time of hearings and that the procedural provisions concerning indictments were changed as they did not provide sufficient guarantees that the summons would reach an accused timely.   The Commission has first examined the applicant's complaint under Article 6 para. 3 (a) and (c) (Art. 6-3-a, 6-3-c) of the Convention.         The Commission notes that on 5 March 1984 the applicant was stopped by the police for having exceeded the maximum speed limit.   On that occasion, in his presence, an official report was drawn up against the applicant for speeding, which in the present case can be considered as meeting the requirements of Article 6 para. 3 (a) (Art. 6-3-a) of the Convention.         The Commission recalls that the rights guaranteed by Article 6 (Art. 6) are indeed secured to any accused person, whether at liberty, in custody or on the run and that, if an accused person is sentenced in absentia without his express consent and is later able, on learning of the sentence, to have the proceedings on the merits re-opened, the right to a hearing, and thus the concrete rights of the defence, have not been weakened in a way that has the result of depriving such rights of any practical effect (cf. No. 10291/83, Dec. 12.5.86, D.R. 47 p. 59).         The Commission considers that an issue of this kind would arise if it were shown, in the circumstances of the case, that the accused convicted and sentenced in absentia had at no stage been aware of the proceedings against him and had thus been prevented from participating in the proceedings.   However this question does not arise in the present case, as the Commission notes that, on 4 October 1984, the applicant filed an appeal against the judgment in first instance and that, on 14 July 1986, he lodged an appeal in cassation against the judgment on appeal.   The Commission therefore considers that the requirements of Article 6 para. 3 (c) (Art. 6-3-c) have been met in the present case.         Having failed to discover a prima facie infringement of Article 6 para. 3 (a) and (c) (Art. 6-3-a, 6-3-c), it remains for the Commission to consider whether, nevertheless, the applicant was not guaranteed a fair hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   The Commission recalls that the relationship between paras. 1 and 3 of Article 6 (Art. 6-1, 6-3) of the Convention is that of the general to the particular.   Article 6 (Art. 6) does not define the notion of a fair trial in criminal cases. Paragraph 3 of that article lists certain specific rights which constitute essential elements of that general notion.   The term "minimum" clearly shows that the list of rights in para. 3 is not exhaustive and that a trial could well not fulfil the general conditions of a fair trial even if the minimum rights guaranteed by para. 3 were respected (cf. Jespers v. Belgium, Comm. Report 14.12.81, para. 54, D.R. 27 p. 86).         The Commission observes in this respect that the applicant was not present at the hearings before the District Court and before the Regional Court and that consequently he had no opportunity to state his case and develop his points of view.   According to the applicant, he was never informed beforehand about the precise date of these hearings.         The Commission recalls that the object and purpose of Article 6 (Art. 6) taken as a whole show that a person "charged with a criminal offence" is entitled to take part in the hearing of his case and that the Contracting States must exercise diligence in order to ensure that the rights guaranteed by this provision are enjoyed in an effective manner (cf. Eur. Court H.R., Colozza judgment of 12 February 1985, Series A, no. 89 paras. 27 and 28).   The Commission further recalls that an accused must be informed with sufficient notice about the date and place of the trial (cf. No. 8231/78, Dec. 6.3.82, D.R. 28 p. 5).   The Commission notes that on 4 October 1984 the applicant filed an appeal against the District Court's judgment of 14 February 1984.         After having examined the documents as submitted by the parties, the Commission notes that the summons to appear before the District Court on 23 August 1984 was unsuccessfully presented at the applicant's verified home address, that after three unsuccessful attempts the judgment of the District Court was served on the applicant in person on 18 December 1984, that the summons to appear before the Regional Court on 20 June 1985, following the applicant's appeal of 4 October 1984, was unsuccesfully presented at the applicant's home address on 20 May 1985, that the judgment of the Regional Court was presented unsuccessfully on 27 August, 18 September, 10 October and 27 November 1985 to the applicant's home address, and that on these occasions either a notification or a notice was left behind at the applicant's address, which the applicant claims to have never received.   The Commission considers that in these circumstances the applicant must have been aware of the criminal proceedings against him and that he could expect a hearing of his case.   In view of the authorities' attempts to inform the applicant of the hearings of his case and the applicant's apparent lack of diligence in his case, the Commission is of the opinion that the authorities cannot be held responsible for the applicant's absence at the hearings of his case.           In the light of the parties' submissions, the Commission finds no indication that the applicant's trial was otherwise unfair.         It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission             President of the Commission             (H.C. KRÜGER)                            (C.A. NØRGAARD)