CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 avril 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. 13535/88                       by Catharina Geertruida Maria VAN DUNGEN                       against the Netherlands           The European Commission of Human Rights sitting in private on 7 April 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  S. TRECHSEL                  F. ERMACORA                  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 RUIZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    J.-C. GEUS                  A.V. ALMEIDA RIBEIRO                  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 4 December 1987 by Catharina Geertruida Maria VAN DUNGEN against the Netherlands and registered on 15 January 1988 under file No. 13535/88;         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 1953 and residing in Amsterdam.   Before the Commission the applicant is represented by Mr. G.P. Hamer, a lawyer practising in Amsterdam.         The facts of the case, as submitted by the parties, may be summarised as follows.         On 18 November and 17 December 1983, when driving her car in Amsterdam, the applicant was stopped by the police.   Following her consent thereto, she underwent an alcohol blood test on both occasions.         By letter of 27 December 1983 the Amsterdam Municipal Police informed the applicant that the analysis of the blood sample taken on 18 November 1983 had shown the alcohol level in her blood to be 2.70 mg per ml and that in view of this high level an official report would be drawn up for the punishable offence of driving under the influence of alcohol within the meaning of Article 26 of the Road and Traffic Act (Wegenverkeerswet) and that the report would be sent to the public prosecutor.   Article 26 of the Dutch Road and Traffic Act prohibits driving a vehicle when the blood contains more than 0,50 mg alcohol per ml blood.         On 26 April 1984 the public prosecutor issued a summons ordering the applicant to appear before the Magistrate (Politierechter) in Amsterdam on 30 May 1984 on three charges, namely driving a car on or about 18 November 1983 with an alcohol level of 2.70 mg per ml in her blood, at least more than 0,5 mg per ml, driving a car on or about 17 December 1983 with an alcohol level of 3.46 mg per ml in her blood, at least more than 0,5 mg per ml, and driving a car on or about 17 December 1983 with a registration certificate (kentekenbewijs Deel III) of another car.         The facts as set out in the first following paragraph are disputed between the parties.         According to the Government, the summons was presented to the applicant's verified home address on 4 May 1984.   As the applicant was not at home on that occasion, it was impossible to serve the summons to her in person.   A notification (kennisgeving) was left behind at the applicant's home address, stating where she should collect the judicial document from the public prosecutor.   The Government contend that the applicant failed to respond to the notification, whereas the applicant claims that she never saw or received the notification.         In accordance with the applicable provisions under Dutch law, the summons was served on 25 May 1984 by presenting it to a municipal civil servant, especially appointed for these matters by the head of the local authorities.   The civil servant subsequently forwarded the summons by mail to the applicant who states that she received it after 30 May 1984.         By decision of 30 May 1984 the Magistrate of Amsterdam convicted the applicant in absentia for, inter alia, driving under the influence of alcohol and sentenced her to two weeks' imprisonment and a suspension of her driving licence for one year.   This judgment was served on the applicant in person on 3 October 1984.         On 8 October 1984 the applicant filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam, invoking Article 6 para. 3 (b) of the Convention.         Following a hearing on 3 March 1986, at which the applicant and her legal counsel were present, the Court of Appeal in its judgment of 17 March 1986 rejected the applicant's complaint that the period of time between the serving of the summons on 25 May 1984 and the hearing before the Magistrate on 30 May 1984 was unreasonably short for a proper preparation of her defence.         The Court of Appeal held, inter alia, that the summons was served in accordance with Dutch law and that the applicant, who was informed by letter of 27 December 1983 that the official police reports concerning the applicant's breach of Article 26 of the Road and Traffic Act would be sent to the public prosecutor, deprived herself of the possibility to prepare her defence in time by failing to respond to the notification left behind at her address.   The Court considered that the relevant Articles of the Code of Penal Procedure on indictments do not contravene the invoked provision of the Convention.         The Court of Appeal, however, quashed the Magistrate's decisions on a technical point and, after a new examination of the facts and evidence and after having heard the parties, convicted and sentenced the applicant to two weeks' imprisonment, a suspension for one year of her driving licence and ordered the confiscation of the car registration certificate.         The applicant subsequently filed an appeal in cassation to the Supreme Court (Hoge Raad), complaining, inter alia, under Article 6 paras. 1 and 3 of the Convention that the Court of Appeal had unjustly and insufficiently motivated the rejection of the applicant's argument that the initial summons before the Magistrate was null and void as the period of time between the serving of the summons on 25 May 1984 and the hearing on 30 May 1984 was unreasonably short for a proper preparation of her defence, thereby denying her a fair trial.         In its judgment of 16 June 1987 the Supreme Court rejected this complaint.   It upheld the Court of Appeal's consideration that the relevant Articles of the Code of Penal Procedure on indictments do not contravene the invoked provision of the Convention.     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. upon 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, upon the person who finds       himself in the house and who declares himself willing to       pass the documents without delay on to the person 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, is made upon the head of the local       authorities or a civil servant appointed by the latter,       unless the person for whom it (the document) is intended or       someone acting on his behalf has collected it in the       meantime. 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 Magistrate, Article 370 para. 1 of the Code of Penal Procedure stipulates:   <Dutch>         "Art.370.1. De termijn van de dagvaarding is ten minste       drie dagen."   <Translation>         "Art. 370.1. The summons must be served giving at least       three days' notice."         The rules governing the procedure of the serving of judicial documents have been slightly amended 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, has responded to the notification which has been 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 she did not receive a fair hearing, because she was not present at the trial before the Magistrate and in particular that she did not have adequate time for the preparation of her defence.   She invokes Article 6 para. 1 and para. 3 (b) and (c) of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 4 December 1987 and registered on 15 January 1988.         On 14 December 1989 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.         The Government's observations were submitted on 22 February 1990 and the applicant's reply thereto on 26 March 1990.         On 26 August 1991 the respondent Government were requested to submit relevant documents in support of the Government's observations.         The documents were submitted on 20 September 1991 and subsequently communicated to the applicant.     THE LAW         The applicant complains that she did not receive a fair hearing because she was not present at the trial before the Magistrate and in particular that she did not have adequate time for the preparation of her defence, even if the summons, forwarded by the municipal authorities, would have reached her before the hearing on 30 May 1984. The applicant invokes Article 6 para. 1 and para. 3 (b) and (c) (Art. 6-1, 6-3-b, 6-3-c) of the Convention, which reads insofar as relevant:         "1.   In the determination of (...) any criminal charge       against him, everyone in entitled to a fair (...) hearing       (...) by a(n) (...) tribunal (...).       (...)       3. Everyone charged with a criminal offence has the       following minimum rights:       (...)       b. to have adequate time and facilities for the preparation       of his defence;       c. to defend himself in person or through legal assistance       of his own choosing (...)."         The Government submit that the serving of the summons in first instance to the applicant's duly verified home address took place in accordance with the prescribed procedure under Dutch law, which is meant to ensure as far as possible that a suspect does not remain ignorant, through no fault of his own, of the fact that legal proceedings have been instituted against him.   The Government state that in the present case the applicant's own actions caused her to have too little time to prepare her defence.   The Government note in this respect that the applicant would have been able to deduce from the letter of 27 December 1983 by the Municipal Police that criminal proceedings might be instituted considering that the registered alcohol level in her blood was well above the legal limit.   The Government furthermore submit that the applicant must have received the notification as in the initial application the applicant stated that "since the letter left at (applicant's home address) made no mention of the fact that criminal proceedings would be instituted, nor did it contain anything from which this might have been inferred" and that in any event the Court of Appeal, after a new consideration of all the facts and circumstances, heard the case once more and that in these and the subsequent proceedings before the Supreme Court the applicant availed herself of legal assistance for her defence.         The applicant in reply states that she could not deduce from the letter of 27 December 1983 that a criminal case was to be brought, as in the Netherlands the public prosecutor has discretionary power to determine whether or not criminal proceedings will be initiated. Furthermore, the applicant maintains her statement that she never received the notification of 4 May 1984 and that the remark in the initial application was made by the applicant's lawyer, who is well acquainted with this type of document and knows that it cannot serve as a basis for an assumption that a criminal case has been brought. The applicant also submits that serving the summons to the municipal civil servant on Friday 25 May 1984, though in accordance with the statutory periods of notice, implied that the applicant would hardly have been given two days' notice, viz. Monday 28 and Tuesday 29 May 1984 to prepare her case, if the municipal civil servant had forwarded the summons immediately.         The Commission has first examined the applicant's complaint under Article 6 para. 3 (b) and (c) (Art. 6-3-b, 6-3-c) of the Convention.           Insofar as the applicant complains that she could not defend herself in the proceedings before the Magistrate, the Commission recalls that the rights guaranteed by Article 6 (Art. 6) of the Convention are indeed secured to any accused person, whether at liberty or in custody.   However, 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 effects (cf. No. 10291/83, Dec. 12.5.86, D.R. 47 p. 59).         The Commission considers that an issue could 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 those proceedings.   However, the Commission observes in the present case that the applicant filed an appeal against the Magistrate's judgment on 8 October 1984, which resulted in a full review of the applicant's case by the Court of Appeal.   During the Court of Appeal's hearing of 3 March 1986, both the applicant and her legal representative were present and were given the opportunity to defend the applicant's case.         The Commission further observes that the applicant was also represented in the subsequent proceedings before the Supreme Court.         In these circumstances the Commission considers that the applicant had ample time to prepare her defence and to seek the assistance of a legal counsel, which the applicant in fact has done. Therefore the Commission is of the opinion that the present application does not raise an issue under Article 6 para. 3 (b) and (c) (Art. 6-3-b, 6-3-c).         As to the applicant's complaint under 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) 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).         It therefore 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.         As pointed out above, as a result of the applicant's appeal, a full review of the facts and evidence took place during the hearing before the Court of Appeal on 3 March 1986, on which occasion both the applicant and her legal counsel were present and were given an opportunity to state the applicant's case and develop her points of view.   The Commission also notes that the applicant was represented in the subsequent proceedings before the Supreme Court.         The Commission therefore considers that, in the present circumstances, there is no indication that the applicant did not have a fair hearing in the determination of the criminal charges against her.         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, by a majority           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission             President of the Commission             (H.C. KRÜGER)                            (C.A. NØRGAARD)