CEDH · CASELAW;REPORTS;ENG — 4 mai 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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 14861/89                          Radjinderpersad Roy LALA                                   against                               the Netherlands                          REPORT OF THE COMMISSION                           (adopted on 4 May 1993)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-17) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-7) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 8-12). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 13-17) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 18-31). . . . . . . . . . . . . . . . . . . . . . . . 3         A.    Particular circumstances of the case            (paras. 18-24) . . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant domestic law            (paras. 25-31) . . . . . . . . . . . . . . . . . . . . . 5   III.   OPINION OF THE COMMISSION       (paras. 32-83). . . . . . . . . . . . . . . . . . . . . . . . 6         A.    Complaint declared admissible            (para. 32) . . . . . . . . . . . . . . . . . . . . . . . 6         B.    Point at issue            (para. 33) . . . . . . . . . . . . . . . . . . . . . . . 6         C.    Article 6 of the Convention            (paras. 34-53) . . . . . . . . . . . . . . . . . . . . . 6         D.    Conclusion            (para. 54) . . . . . . . . . . . . . . . . . . . . . . . 9   APPENDIX I    :   HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . .10   APPENDIX II   :   DECISION ON THE ADMISSIBILITY OF                 THE APPLICATION . . . . . . . . . . . . . . . . . .11   I.     INTRODUCTION   1      The following is an outline of the case as submitted to the European Commission of Human Rights and of the procedure before the Commission.   A.     The application   2      The applicant is a Dutch national, born in 1961, and residing at The Hague, the Netherlands.   Before the Commission he is represented by Mr. R. Angad-Gaur, a lawyer practising in The Hague.   3      The application is directed against the Netherlands, whose Government are represented by their Agent, Mr. Karel de Vey Mestdagh of the Netherlands Ministry of Foreign Affairs.   4      On 19 November 1986 the applicant was convicted and sentenced in absentia by the Magistrate of the Regional Court of The Hague on charges of fraud in respect of social security benefits.   5      On 21 September 1987 the Court of Appeal of The Hague quashed the judgment of 19 November 1986 and convicted and sentenced the applicant, again in absentia, for having committed fraud.   6      The Supreme Court rejected the applicant's appeal in cassation on 27 September 1988.   7      The applicant complains under Article 6 paras. 1, 2 and 3 (c) of the Convention that he did not have a fair trial because he was convicted in absentia since, before the Court of Appeal, his lawyer was not allowed to conduct his defence in his absence.   B.     The proceedings   8      The application was introduced on 8 March 1989 and registered on 3 April 1989.   9      On 7 October 1991 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.   10     The Government's observations were submitted on 16 December 1991. The applicant submitted his observations in reply on 20 April 1992.   11     On 12 October 1992 the Commission declared the application admissible and the parties were invited, should they so desire, to submit further observations regarding the merits of the application. No such observations were received.   12     After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   13     The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  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                  C. L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.F. REFFI                  M. NOWICKI   14     The text of the Report was adopted on 4 May 1993 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 1 of the Convention.   15     The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         (1)   to establish the facts, and         (2)   to state an opinion as to whether the facts            found disclose a breach by the State concerned            of its obligations under the Convention.   16     A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application forms Appendix II.   17     The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   18     By summons of 17 September 1986 the applicant was ordered to appear before the Magistrate (politierechter) of the Regional Court (Arrondissementsrechtbank) of The Hague on charges of fraud concerning social security benefits. It had appeared that the applicant, while receiving social security benefits, was gainfully employed by a temporary employment agency, whereas in his statements to the social security service on his income he had stated to have had no income.   19     On 19 November 1986 the Magistrate convicted the applicant in absentia and sentenced him to four weeks' imprisonment, of which two weeks suspended with three years' probation.   The Magistrate added as a special condition that the applicant should repay the unlawfully received benefits.   20     The applicant filed an appeal against this decision with the Court of Appeal (Gerechtshof) of The Hague and by summons of 13 July 1987 was ordered to appear before the Court of Appeal on 7 September 1987.   21     The record (proces-verbaal terechtzitting) of the Court of Appeal's hearing of 7 September 1987, insofar as relevant, reads as follows:   <Dutch>         "     De voorzitter doet de zaak tegen na te noemen       verdachte uitroepen.       De verdachte genaamd:       Radjinderpersad Roy LALA,       geboren te (...) op (...),       wonende te 's-Gravenhage, (...),       is niet verschenen.              Als raadsman van verdachte is ter terechtzitting       aanwezig mr. B.R. Angad-Gaur, advocaat te 's-Gravenhage,       die mededeelt dat zijn cliënt niet ter terechtzitting zal       verschijnen, omdat er nog een geldboete tegen hem openstaat       en hij die geldboete niet kan betalen en derhalve de kans       loopt om meteen opgepakt te worden voor het uitzitten van       de vervangende hechtenis.              Op vordering van de procureur-generaal verleent het       gerechtshof verstek tegen de niet verschenen verdachte en       beveelt, dat met de behandeling van de zaak zal worden       voortgegaan.       (...)."   <translation>         "     The president has the case called against the accused named       hereinafter.       The accused named:       Radjinderpersad Roy LALA,       born in (...) on (...),       residing at The Hague, (...),       has not appeared.              As counsel of the accused is present at the hearing,       mr. B.R. Angad-Gaur, lawyer at The Hague, who states that       his client will not appear at the hearing, because a fine       imposed on him, which he is unable to pay, is still       outstanding and, that, therefore, he risks to be       apprehended immediately in order to serve the alternatively       imposed prison sentence.              Following the procurator-general's request the Court       of Appeal declares the accused in default of appearance and       orders that the examination of the case will be proceeded       with.       (...)."   22     On 21 September 1987 the Court of Appeal quashed the Magistrate's judgment for technical reasons. After a new examination of the facts and evidence, i.e. the applicant's confession of 24 April 1986 before the police, a letter of 18 February 1986 of the Director of the Municipal Social Service of The Hague concerning the applicant and eighteen declarations signed and sent by the applicant to the Municipal Social Service between July and November 1985 in which he had stated that he had no income, the Court of Appeal convicted the applicant in absentia for having committed fraud and sentenced him to two weeks' imprisonment.   23     The applicant's appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 27 September 1988.   24     In respect of the applicant's complaint that the Court of Appeal had unjustly failed to provide his lawyer with an opportunity to defend him in his absence at the hearing before this Court, the Supreme Court held:   <Dutch>         "In gevallen waarin bij de aanvang van het onderzoek ter       terechtzitting de verdachte niet doch diens raadsman wel blijkt       te zijn verschenen, mag de rechter er van uitgaan dat deze,       indien hij ondanks de afwezigheid van de verdachte als zodanig       wil optreden, dit aan de rechter kenbaar maakt. Aangezien het       proces-verbaal der terechtzitting van het Hof niets inhoudt       waaruit kan worden afgeleid dat de raadsman aan het Hof heeft       kenbaar gemaakt dat hij als zodanig wilde optreden - noch zijn       enkele aanwezigheid, noch zijn verklaring van de afwezigheid van       zijn client kan daartoe dienen - moet het ervoor worden gehouden       dat hij dit niet heeft gedaan. Onder deze omstandigheden was het       Hof niet verplicht de raadsman toe te staan bij de behandeling       van de strafzaak tegen zijn client als zodanig op te treden."   <translation>         "In cases where the accused has not appeared but his counsel is       present at the beginning of the court hearing, the court may       proceed on the assumption that if the accused's counsel wishes       to act as such despite the absence of his client, he will make       this known to the court. As the Court of Appeal's record of the       hearing contains nothing from which it could be derived that the       applicant's counsel made it known to the Court that he wished to       act in this capacity - neither his own presence nor his       explanation of his client's absence may be taken to imply this -       it must be assumed that he has failed to do this. Under these       circumstances, the Court was not obliged to allow the applicant's       counsel to act as such in the course of the hearing of the       criminal case against his client."   B.     Relevant domestic law and practice   25     Under the Netherlands Code of Criminal Procedure a lawyer is not entitled to conduct at the court's hearing the defence of a person accused of having committed an offence punishable by a prison sentence, where the latter has been declared in default of appearance.   26     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 EC member states in which civil liability issues arise (Hoge Raad, judgment of 17 November 1981, N.J. 1982 nr. 269), and   -      in cases where at the beginning of a court hearing the lawyer explicitly requests the court to be allowed to conduct the accused's defence and, in the court's opinion, there are compelling reasons (klemmende redenen) preventing the appearance of the accused at the hearing of his case, but the court sees no reasons to suspend the hearing in order to enable the accused to appear at a hearing on another date (Hoge Raad, judgment of 26 February 1980, N.J. 1980 nr. 246 and judgment of 16 February 1988, N.J. 1988 nr. 794; judgment of 14 November 1986, N.J. 1987 nr. 862 and judgment of 18 September 1989, N.J. 1990 nr. 145).   27     Concerning the second category the Supreme Court has held that fear of arrest is no compelling reason (Hoge Raad, judgment of 24 November 1987, nr. 81 798).   28     Under Section 399 of the Code of Criminal Procedure it is possible to file an objection (verzet) against a final conviction in absentia.   29     An objection can be filed within fourteen days after the pronouncement of the judgment, when the summons has been notified in person and otherwise within fourteen days after the occurrence of a situation from which it is clear that a person has become aware of his conviction.   30     No objection can be raised against a conviction in absentia by a first instance court against which an appeal may be lodged, or against a conviction in absentia on appeal.   31     Sections 408 and 409 para. 2 of the Code of Criminal Procedure contain safeguards that an accused will be able to make an effective use of the possibility to file an appeal against a conviction in absentia by a first instance court.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   32     The Commission has declared admissible the applicant's complaint that he was convicted in absentia in proceedings in which his lawyer was not given the opportunity to defend him.   B.     Point at issue   33     Accordingly, the issue to be determined is whether there has been a violation of Article 6 para. 1 and/or Article 6 paras. 2 and 3(c) (Art. 6-1, 6-2, 6-3-c) of the Convention, as alleged by the applicant.   C.     Article 6 (Art. 6) of the Convention   34     Article 6 paras. 1, 2 and 3(c) (Art. 6-1, 6-2, 6-3-c), insofar as relevant, read as follows:         "1.   In the determination (...) of any criminal charge       against him, everyone is entitled to a fair and public       hearing (...) by an independent and impartial 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 (...);       (...)."   35     The Government submit that, apart from regulations pertaining to minors, Dutch law contains no obligation for an accused to appear at the court hearing of his case. If present at the hearing he is entitled to be assisted by counsel. If an accused chooses to be absent from the hearing, he also renounces the possibility of conducting his own defence and cannot have his defence conducted in his absence by counsel. However, taking account of the Convention, criteria have been developed in Dutch case-law, in respect of hearings involving an offence punishable by a prison sentence, for allowing counsel to act as such where the accused cannot be present in court. Counsel may then act on the accused's behalf if the court finds that compelling reasons prevent the accused from appearing at the session and there are no grounds to adjourn the hearing for a set period.   36     The Government consider that the criminal proceedings against the applicant complied with Article 6 (Art. 6) of the Convention. At each stage of the proceedings - the hearing in first instance before the Magistrate, the appeal proceedings before the Court of Appeal and the appeal in cassation before the Supreme Court - there was a fair and public hearing of the criminal case against the applicant by an independent and impartial tribunal within a reasonable time.   37     The Government point out that the applicant was summoned to appear at the hearings in person in accordance with the relevant statutory provisions, and had the opportunity of conducting his defence, but that he chose not to avail himself of this opportunity.   38     With reference to the Supreme Court's judgment of 27 September 1988 the Government submit that, as the applicant's lawyer did not inform the Court of Appeal that he was present in his capacity of defending counsel, the applicant is not entitled retroactively to invoke his right to be defended.   39     The applicant submits that under Dutch law counsel for the defence is under no obligation to appear before the court and that in Dutch criminal proceedings it is hard to imagine any other reason for the appearance of a counsel than to plead the defendant's case. The applicant further states that his lawyer, pursuant to Section 39 of the Dutch Code of Criminal Procedure, gave the court prior notice that he would be acting for the applicant.   40     The applicant further states that his lawyer also endeavoured to argue the applicant's case, but that the Court of Appeal did not allow this in view of the applicant's absence, which, according to the applicant, under the provisions contained in the Dutch Code of Criminal Procedure entails proceedings in absentia.   41     The applicant finally states that counsel has no influence over the drawing up of the court's record, as he is not allowed to plead on his client's behalf or indeed to speak at all. Anything counsel may say is disregarded and excluded from the record by the Registrar of the Court of Appeal in order to prevent a disguised plea being made on the defendant's behalf.   42     The Commission recalls that the guarantees in paras. 2 and 3 of Article 6 (Art. 6-2, 6-3) of the Convention are specific aspects of the right to a fair trial set forth in para. 1 of this provision (cf. Eur. Court H.R., Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, p. 31, para. 67). It will therefore examine the applicant's complaint on the basis of view of these provisions taken together.   43     The Commission notes that on 19 November 1986 the applicant was convicted and sentenced in absentia by the Magistrate of the Regional Court of The Hague on charges of fraud in respect of social security benefits, and that on 21 September 1987 the Court of Appeal of The Hague quashed the judgment of 19 November 1986 and convicted and sentenced the applicant, again in absentia, for having committed fraud.   44     The Commission recalls that the guarantees set forth in Article 6 (Art. 6) of the Convention are in principle applicable to appeal proceedings (cf. Eur. Court H.R., Delcourt judgment of 7 January 1970, Series A no. 11, pp. 13-15, para. 25).   45     The Commission recalls that the right of an accused to participate in person in the trial is a fundamental element of a fair trial and that States must assure that this right is enjoyed in an effective manner (Eur. Court H.R., Colozza judgment of 12 February 1985, Series A no. 89, p. 16, para. 32).   46     The Commission notes that at the hearing of 7 September 1987 before the Court of Appeal the applicant's lawyer was present. However, under Dutch law it was not possible for the lawyer to present the applicant's defence in view of the applicant's unexcused absence.   47     Under Article 6 para. 3 (c) (Art. 6-3-c) everyone charged with a criminal offence may defend himself in person or "through legal assistance of his own choosing" ("avoir l'assistance d'un défenseur de son choix").   The applicant did not defend himself in person at his trial before the Court of Appeal and does not complain that he was prevented from doing so.   But he claims that he was denied the right to defend himself "through legal assistance of his own choosing", i.e. through counsel who was present for him at the trial before the Court of Appeal.   48     The Commission does not consider that the right to defend oneself through legal assistance can only be invoked by defendants who are themselves present at their trial.   Nor does it find that a distinction can be made, as regards entitlement to this right, between defendants who are prevented from appearing at their trial and those who could or should appear, but for reasons of their own prefer not to do so.   It is therefore irrelevant for the determination of the present complaint whether or not the applicant should himself have appeared at his trial.   49     It follows that, although he himself had failed to appear, the applicant was entitled under Article 6 para. 3 (c) (Art. 6-3-c) to "legal assistance of his own choosing" at his trial before the Court of Appeal.   Therefore, in order to comply with this provision, the Court of Appeal should have allowed counsel for the applicant, who was present in the applicant's place, to make submissions on the applicant's behalf.   However, in accordance with Dutch practice in criminal proceedings, this was not done, the applicant having been found to be in default.   50     The Commission notes that the applicant could file an appeal in cassation to the Supreme Court, of which opportunity he did in fact avail himself. However this appeal was limited to points of law and, therefore, did not lead to a fresh determination of the criminal charges against him.   51     The Commission is of the opinion that the position adopted in Dutch law, that a person - charged with an offence punishable by a prison sentence - who chooses not to attend his trial in person, usually loses his right to defend himself through his counsel is incompatible with the respect for the fundamental guarantees which every person charged with a criminal offence should enjoy. The need to secure the attendance of an accused at the trial of his case cannot justify proceeding to judgment against him without hearing the defence he wishes to put forward through his counsel.   52     Considering the case under the general "fair hearing" clause of Article 6 para. 1 (Art. 6-1) the Commission notes that the Court of Appeal, after having quashed the conviction by the Magistrate of the Regional Court, convicted and sentenced the applicant after hearing the procurator-general but without giving the floor to counsel for the defence, who was present.   This infringed the principle of equality of arms, an essential element of the right to a fair trial. Moreover, having regard to the prominent place the right to a fair trial holds in a democratic society, this infringement can again not be justified by the need to secure the defendant's attendance at the hearing of his case.   53     The Commission finds no separate issue under Article 6 para. 2 (Art. 6-2) of the Convention.   D.     Conclusion   54     The Commission concludes unanimously that there has been a violation of Article 6 para. 1 in conjunction with Article 6 para. 3(c) (Art. 6-1+6-3-c) of the Convention.   Secretary to the Commission              President of the Commission      (H.C. Krüger)                              (C.A. Nørgaard)                                 APPENDIX I                           HISTORY OF PROCEEDINGS   Date                                     Item ___________________________________________________________________   8 March 1989                             Introduction of application   3 April 1989                             Registration of application   Examination of admissibility   7 October 1991                           Commission's decision to                                         invite the Government to                                         submit their observations                                         on the admissibility and                                         merits of the application   16 December 1991                         Government's observations   20 April 1992                            Applicant's observations in                                         reply   21 October 1992                          Commission's decision to                                         declare the application                                         admissible. Commission's                                         decision to invite the                                         parties, should they so                                         desire, to submit further                                         observations on the merits of                                         the application Examination of the merits   4 May 1993                               Commission's deliberations                                         on the merits final vote                                         and adoption of the Report