CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1993

.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. 16737/90                       by S.P.                       against the Netherlands         The European Commission of Human Rights sitting in private on 11 Janury 1993, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  G. SPERDUTI                  E. BUSUTTIL                  G. JÖRUNDSSON                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G. H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                    Mr. M. de SALVIA, Deputy 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 17 April 1990 by S.P. against the Netherlands and registered on 18 June 1990 under file No. 16737/90;         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 Mauritian national, born in 1947 and currently residing in Quatre Bornes, Mauritius.   Before the Commission he is represented by Mr. V. Kraal, a lawyer practising in Amsterdam.         The facts of the case, as submitted by the parties, may be summarised as follows.         On 27 December 1985 the applicant was arrested at Schiphol airport when entering the Netherlands, as about 20 kilogrammes of heroin and methaqualon had been found in his luggage.         The applicant was primarily charged with, either intentional or unintentional, importation of heroin into the Netherlands and, alternatively, with either intentional or unintentional possession of heroin.         On 21 August 1986 the Regional Court (Arrondissementsrechtbank) of Haarlem, after hearing the applicant, convicted him of unintentional importation of heroin into the Netherlands, sentenced him to six months' imprisonment with deduction of the time spent in custody, lifted the order for his detention on remand and ordered his immediate release.   The applicant was subsequently expelled from the Netherlands.         Both the public prosecutor and the applicant filed an appeal against this judgment.         At the hearing of 10 February 1987, the Court of Appeal (Gerechtshof) of Amsterdam declared the applicant in default of appearance and started the examination of the case.         The applicant's lawyer requested the Court's permission to address the Court in order to conduct the applicant's defence, as, in view of his place of residence, the applicant was unable to appear at the hearing.   The Court rejected this request, considering that no compelling reasons (dringende redenen) for the applicant's absence had become apparent, and continued its examination of the case.         On 20 November 1987 the Court of Appeal resumed the proceedings. In view of the Court's different composition, the Court fully recommenced its examination of the case.   At the beginning of the hearing the applicant's lawyer requested permission to represent (vertegenwoordigen) the applicant within the meaning of Article 270 of the Netherlands Code of Criminal Procedure (Wetboek van Strafvordering) in respect of the alternative charge of possession of heroin.   The Court rejected the request, considering that it had neither been stated nor appeared that the applicant had authorised the lawyer to represent him and as, in any event, it would first examine the principal charge of importation of heroin for which representation within the meaning of Article 270 of the Code of Criminal Procedure is not allowed, this being a criminal offence punishable by a prison sentence.         Following an adjournment, the Court of Appeal resumed its hearing on 22 January 1988, when Mr. Kraal submitted a written authorisation to represent the applicant.   The Court, however, again rejected the request for representation as it would first consider the principal charge for which representation is not allowed.         By judgment of 5 February 1988 the Court of Appeal convicted the applicant in absentia of intentional importation of heroin into the Netherlands and sentenced him to nine years' imprisonment with deduction of the time spent in custody.         The applicant's subsequent appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 24 October 1989.   In respect of the applicant's complaint that his lawyer's request of 10 February 1987 had been unjustly rejected the Supreme Court held that, as the Court of Appeal had recommenced its examination of the applicant's appeal on 20 November 1987 due to its changed composition, the rejection of this request could not entail the nullity of the judgment of 5 February 1988 which was the result of this new examination.   In respect of the complaint that Mr. Kraal's request to represent the applicant within the meaning of Article 270 of the Code of Criminal Procedure had been unjustly rejected, the Supreme Court considered that, as the first charge to be heard was the principal charge, which is punishable by a prison sentence, the Court of Appeal's decision to reject the request for representation was justified and well-founded.     COMPLAINT         The applicant complains under Article 6 paras. 1 and 3 (c) of the Convention that at the hearings before the Court of Appeal 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 as he was convicted without having had the opportunity to defend himself.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 17 April 1990 and registered on 18 June 1990.         On 9 November 1990 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 submitted their observations on 31 January 1991. The applicant's observations in reply were submitted on 17 May 1991.     THE LAW         The applicant complains that in the determination of the criminal charges against him he did not receive a fair trial as the Court of Appeal did not allow his lawyer to conduct the defence in his absence. He complains that as a result he was convicted without having had the opportunity to defend himself.         The applicant invokes Article 6 paras. 1 and 3 (c)       (Art. 6-1, 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 (...).         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 subscribe to the Supreme Court's finding that representation within the meaning of Article 270 of the Code of Criminal Procedure was not possible under Dutch law since the offence at issue was punishable by a prison sentence.   The Government add that the applicant's lawyer did not argue that compelling reasons prevented the applicant from attending his trial before the Court of Appeal and that no such compelling reasons had appeared.   The Government are of the opinion that they did not place any impediment in the applicant's way preventing him to attend his trial in the Netherlands.         The applicant submits that the distance between an accused's place of residence and the place in which the court sits may very well be a compelling reason preventing an accused's appearance before the court and consequently a reason to allow an accused to defend himself through the assistance of a lawyer.         The applicant is of the opinion that, considering that he resides in Mauritius, whereas the trial took place in Amsterdam, his lawyer should have been given the opportunity to conduct his defence on his behalf.         The Commission recalls that the Court has held on several occasions that, although this is not expressly mentioned in Article 6 para. 1 (Art. 6-1) of the Convention, the object and purpose of the Article taken as a whole show that a person charged with a criminal offence is entitled to take part in the proceedings against him and that Contracting States must exercise diligence in ensuring the effective enjoyment of the rights guaranteed under Article 6 (Art. 6) of the Convention (cf. Eur. Court H.R., T. v. Italy judgment of 12 October 1992, to be published in Series A no. 245-C, paras. 26 and 29).         The Commission notes that the applicant was convicted without having had the opportunity to defend himself in person or through the assistance of a lawyer, despite his lawyer's presence and repeatedly expressed willingness to conduct the applicant's defence at the hearings before the Court of Appeal.         The Commission, having regard to the parties' submissions, considers that the application raises issues of fact and law which can only be resolved by an examination of the merits.   The application can, therefore, not be declared 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 THE APPLICATION ADMISSIBLE       without prejudging the merits of the case.     Deputy Secretary to the Commission       President of the Commission           (M. de Salvia)                          (C.A. Nørgaard)