CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 juillet 1995

.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. 23737/94                       by Mario André Antonio Alexander VAN SOEST                       against the Netherlands        The European Commission of Human Rights (Second Chamber) sitting in private on 4 July 1995, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              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 2 May 1994 by Mario André Antonio Alexander VAN SOEST   against the Netherlands and registered on 6 May 1994 under file No. 23737/94;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the Commission's decision of 30 November 1994 to communicate the      application;   -     the observations submitted by the respondent Government on      16 February 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Dutch citizen, born in 1957, and resides at Amsterdam. Before the Commission he is represented by Mr. H.G. Kersting, a lawyer practising in Amsterdam.        The facts of the case, as submitted by the parties, may be summarised as follows.   A.    The particular circumstances of the case        By summons of 17 July 1991 the applicant was summoned to appear before the Magistrate (Politierechter) at the Regional Court (Arrondis- sementsrechtbank) of Amsterdam on charges of theft. On 21 October 1991, following a hearing at which neither the applicant nor his lawyer had appeared, the Magistrate convicted the applicant, in absentia, of theft and sentenced him to two months' imprisonment.        On 4 November 1991, the applicant filed an appeal against the Magistrate's judgment. On 10 December 1992, a hearing was held by the Court of Appeal (Gerechtshof) of Amsterdam. The applicant's lawyer requested the court to adjourn its examination as the applicant had been admitted to hospital for an operation. The Court of Appeal adjourned the hearing until 4 March 1993.        On 4 March 1993, the applicant did not appear before the Court of Appeal. His lawyer, however, was present. According to the minutes of this hearing the applicant's lawyer was unable to provide the court with compelling reasons (klemmende redenen) for the applicant's absence. The Court of Appeal subsequently declared the applicant in default of appearance and started its examination. The applicant's lawyer was not provided with the opportunity to conduct the defence of the applicant in view of the latter's absence.        On 18 March 1993, the Court of Appeal quashed the Regional Court's judgment on technical grounds, convicted the applicant of theft and sentenced him to two months' imprisonment.        In his appeal in cassation to the Supreme Court (Hoge Raad), the applicant complained that the Court of Appeal had not allowed his lawyer to conduct his defence in his absence. He invoked Article 6 paras. 1 and 3 (c) of the Convention.        In its judgment of 14 December 1993, the Supreme Court rejected the applicant's appeal in cassation. It held, inter alia:   <translation>        "In cases where the accused has not appeared but his lawyer is      present at the beginning of the court hearing, the court may      proceed on the assumption that if the lawyer for the accused      wishes to act as such despite the absence of his client, he will      make this known to the court. As the record of the hearing of the      Court of Appeal contains nothing which might indicate that the      lawyer made it known to the Court of Appeal that he wished to act      in that capacity - his presence cannot serve this purpose - it      must be assumed that he has failed to do so. Under these      circumstances the Court of Appeal - notwithstanding the quoted      treaty provisions and national law - was not obliged to allow the      lawyer to conduct the defence."   B.    Relevant domestic law and practice        The Netherlands Code of Criminal Procedure (Wetboek van Strafvordering) does not ensure the right of a lawyer to conduct the defence of an accused before a court, where the latter has been declared in default of appearance.        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 EU member states in which civil liability issues arise (Hoge Raad, judgment of 17 November 1981, N.J. 1982 nr. 269), and   -     in cases where there are compelling reasons (klemmende redenen) preventing the appearance of an accused at the hearing of his case (Hoge Raad, judgment of 26 February 1988, N.J. 1988 nr. 794) and where a lawyer has made an explicit request to that effect to the court (Hoge Raad, judgment of 14 November 1986, N.J. 1987 nr. 862 and judgment of 18 September 1989, N.J. 1990 nr. 145).   COMPLAINT        The applicant complains under Article 6 paras. 1, 2 and 3 (c) of the Convention that at the hearing of 4 March 1993 before the Court of Appeal of Amsterdam, 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.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 2 May 1994 and registered on 6 May 1994.        On 30 November 1994 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on its admissibility and merits.        The Government's written observations were submitted on 16 February 1995.   The applicant informed the Commission on 28 April 1995 that, in view of the Government's observations, he did not wish to avail himself of the opportunity to submit observations in reply.   THE LAW        The applicant complains that in the determination of the criminal charges against him he did not receive a fair hearing as the Court of Appeal did not allow his lawyer to conduct the defence in his absence.        The applicant invokes Article 6 paras. 1, 2 and 3 (c) (Art. 6-1, 6-2, 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 ... .        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 ... ."        The Government submit that the facts in the case at issue are similar to those in the cases of Lala and Pelladoah in which the Court found a violation of Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention (Eur. Court H.R., Lala and Pelladoah judgments of 22 September 1994, Series A nos. 297-A and 297-B respectively). Following these judgments, counsel for an accused who has not appeared in court is now always given the opportunity to speak in his client's defence. The Government are also considering amending the law on this point.        In view of the above, the Government defer to the opinion of the Commission.        The Commission considers in the first place that there is no appearance of a violation of the principle of presumption of innocence as guaranteed by Article 6 para. 2 (Art. 6-2) of the Convention.        It follows that in this respect the complaint is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        The Commission further notes that this application raises the same issues as the cases of Lala and Pelladoah (above-mentioned judgments of 22 September 1994, Series A nos. 297-A and 297-B).        Having regard to the parties' submissions and the case-law of the Convention organs, the Commission considers that the complaint under Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention raises questions of fact and law which require an examination of the merits. This part of the application cannot, therefore, be declared inadmissible as being 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 ADMISSIBLE, without prejudging the merits of the case,      the applicant's complaint that his defence lawyer was not allowed      to conduct the defence in the absence of the applicant;        DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Second Chamber       President of the Second Chamber        (M.-T. SCHOEPFER)                        (H. DANELIUS)