CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 janvier 1996

.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. 25514/94                       by Guno Vincentius MENCKEBERG                       against the Netherlands         The European Commission of Human Rights (Second Chamber) sitting in private on 17 January 1996, 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                  P. LORENZEN              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 6 October 1994 by Guno Vincentius MENCKEBERG against the Netherlands and registered on 2 November 1994 under file No. 25514/94;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       11 July 1995 and the observations in reply submitted by the       applicant on 12 September 1995;         Having deliberated;         Decides as follows:   THE FACTS   1. Particular circumstances of the case         The applicant is a Dutch citizen, born in 1962, and resides in Amsterdam. Before the Commission he is represented by Mr. G. Meijers, a lawyer practising in Amsterdam.         The facts of the case, as submitted by the parties, may be summarised as follows.         On 6 July 1992, the applicant was arrested in flagrante delicto attempting extortion together with one or more persons and detained on remand. He was subsequently summoned to appear on 21 July 1992 before the Magistrate (Politierechter) of the Regional Court (Arrondissements- rechtbank) of Amsterdam on charges of attempted extortion committed in association with one or more other persons.         On 21 July 1992, following adversarial proceedings in which the applicant was represented by the assigned legal aid lawyer Mr. L.B., the Magistrate of the Regional Court acquitted the applicant and ordered his immediate release. On 27 July 1992, the public prosecutor lodged an appeal against this judgment with the Court of Appeal (Gerechtshof) of Amsterdam.         On 31 July 1992, pursuant to Section 409 para. 2 of the Code of Criminal Procedure (Wetboek van Strafvordering), an attempt was made to notify the applicant of the public prosecutor's appeal. This unsuccessful attempt was made at the applicant's official place of residence, i.e. the address at which he was registered at that moment at the Registry Office (Bevolkingsregister) of Amsterdam.         On 6 October 1992, in the prison at Heerhugowaard, where he was detained in connection with another criminal case, the applicant was notified in person that the public prosecutor had lodged an appeal against the acquittal.         On 5 February 1993, an unsuccessful attempt was made at the applicant's official place of residence to serve him with the summons to appear before the Court of Appeal. According to the Registry Office of Amsterdam, the address at which the attempt was made, was still the applicant's official place of residence. Pursuant to Section 588 para. 4 of the Code of Criminal Procedure, the summons was, on 15 February 1993, presented to the Registrar (griffier) of the Regional Court.         On 4 March 1993, Mr. L.B., who had also represented the applicant in the first instance proceedings, informed the Court of Appeal that he had been assigned as the applicant's lawyer and requested to be provided with the applicant's case-file.         In the morning of 16 March 1993, the Court of Appeal started its examination of the case. The applicant was not present but his lawyer was. The lawyer stated that he did not know why the applicant had not appeared. The Court of Appeal declared the applicant in default of appearance (verstek) and started its examination. At the request of the Procurator General (Procureur-Generaal), the Court of Appeal adjourned its examination until 2.30 p.m. that same day in order to hear police officers D. and T. as witnesses.         At 2.30 p.m., the Court of Appeal resumed its examination. The applicant was still not present. The applicant's lawyer, who could not provide the Court of Appeal with compelling reasons (klemmende redenen) for the applicant's absence, asked for leave to conduct the defence in the applicant's absence. The request was rejected. The Court of Appeal subsequently heard the two witnesses. The applicant's lawyer was not allowed to put any questions to them.         The Procurator General informed the Court of Appeal that the applicant, in three different sets of criminal proceedings had been previously convicted, by judgments of 30 October 1992, 24 November 1992 and 11 December 1992 respectively, by the Magistrate of the Regional Court of Amsterdam and sentenced to terms of imprisonment of three months, three months and two months, respectively.         On 30 March 1993, the Court of Appeal quashed the Magistrate's judgment, and convicted the applicant in absentia of attempted extortion committed together with one or more other persons, and sentenced him to four months' imprisonment. The Court of Appeal used in evidence a statement of the victim and the statements of police officers D. and T. on what they had seen at the time of the applicant's arrest on 6 July 1992. The applicant received notice of the Court of Appeal's judgment in prison.         The applicant subsequently lodged an appeal in cassation with the Supreme Court (Hoge Raad). At that time, he was detained in the prison at Arnhem. During the proceedings in cassation, the applicant was assisted by another lawyer than in the proceedings before the Regional Court and the Court of Appeal.         The applicant argued that, in view of the fact that on 6 October 1992 he had been officially notified in the penitentiary of the appeal lodged by the prosecution, and in view of the fact that he had been sentenced to several prison terms at the end of 1992, it should have been clear to the Court of Appeal that it was doubtful whether he was actually living at his official place of residence at the time the attempts to serve him with the summons were made. The applicant further argued that the Court of Appeal should have declared the summons void or should have adjourned its examination of the case in order to give him the opportunity to appear and conduct his defence.         The applicant also complained that the Court of Appeal had not allowed the lawyer who assisted him at the time to conduct the defence in his absence, the consequence of which had been that, in violation of the principle of equality of arms, the defence could not question the witnesses, whereas the Procurator General could. He pointed out that his conviction was based to a large extent on the statements of the police officers D. and T.         On 29 March 1994, the Advocate General (Advocaat-Generaal) at the Supreme Court submitted his written conclusions. He found that the summons to appear before the Court of Appeal had been lawfully served. In his opinion, it had not been obvious during the appeal proceedings that the applicant was in detention. He further stated that he agreed with the Court of Appeal's rejection of the request of the applicant's lawyer to conduct his client's defence in his absence.         On 31 May 1994, the Supreme Court rejected the applicant's appeal in cassation.   2. Relevant domestic law         Pursuant to Section 409 para. 1 of the Code of Criminal Procedure (CCP), the Registrar of the Regional Court transmits, after an appeal has been lodged against a judgment of the Regional Court, the case-file in question to the Court of Appeal. When only the public prosecutor has lodged an appeal, the Registrar does not send the case-file to the Court of Appeal until after the defendant has been notified of the public prosecutor's appeal (Section 409 para. 2 CCP). According to Section 412 para. 1 CCP, the President of the Court of Appeal determines, if possible within eight days after the transmission of the case-file, the day of the hearing on appeal.         The notification of judicial communications (gerechtelijke mededelingen) to natural persons is regulated in Sections 585-590 CCP. In principle, a summons to appear in court is served on the defendant in person at his place of residence, usually by the mail carrier. If the defendant is not present, the summons may be delivered to another person present at the address who declares his willingness to pass it on to the defendant without delay (Section 588 para. 1b CCP).         If delivery of the summons to another person at the defendant's place of residence is also not possible, a notice is left behind giving the address at which the defendant, or someone authorised to act on his behalf, can collect the summons (usually the post office). If nobody claims the summons, it is returned to the public prosecutor's office (Section 588 paras. 2 and 3 CCP).         The public prosecutor's office then verifies at the Registry Office of the relevant municipality whether the defendant was in fact registered at the address where the summons was served on the day on which the summons was presented and five days afterwards. If this proves to be the case, the summons is presented to the Registrar of the Regional Court that will deal or has dealt with the case. The Registrar of the Regional Court will then send the summons by normal mail to the defendant's address (Section 588 para. 4 CCP).         If a defendant is detained in the Netherlands in connection with the case to which the summons refers, the summons must be served on the defendant in person (Section 588 para. 1a CCP).         According to Section 590 para. 1 CCP, the notification is null when the statutory regulations concerning notification of judicial communications have not been respected. However, this nullity will have no effect, when the defendant appears voluntarily at the hearing, or when a situation has occurred from which it ensues that the defendant was aware of the day of the hearing before the statutory delay of summoning (Section 590 para. 2 CCP).         Under Section 399 para. 1 CCP, an accused who has been convicted in absentia in a final judgment (einduitspraak) by the first instance court may file an objection (verzet). Such an objection entitles the accused to a full retrial by the same court (Section 403 CCP). An objection may not be filed by an accused who has, or has had, the opportunity to appeal to a higher court with jurisdiction as to both fact and law (Section 399 para. 2 CCP). It follows from Section 399 para. 1 CCP that no objection may be filed against a judgment in absentia given on appeal.         Under Dutch law, an accused who has been declared in default of appearance is not entitled to have his defence conducted by counsel, unless the court finds that there are "compelling reasons" preventing the accused from appearing (for further details see Eur. Court H.R., Lala judgment of 22 September 1994, Series A no. 297-A, pp. 9-11, paras. 16-21).   COMPLAINTS   1.     The applicant complains under Article 6 paras. 1 and 3 (a) of the Convention that during the appeal proceedings he was not informed of the accusations against him. He argues that the judicial authorities, when trying to serve him with the summons to appear before the Court of Appeal, only had regard to the information of the Registry Office of Amsterdam, whilst they should have been aware of the fact that he was in detention at that time.   2.     He complains under Article 6 paras. 1 and 3 (c) of the Convention that he was not given the opportunity to defend himself before the Court of Appeal, although he had not waived the right to defend himself and although it was not necessary in the interest of the administration of justice to examine his case in his absence.   3.     The applicant further complains under Article 6 paras. 1 and 3 (c) of the Convention that at the Court of Appeal's hearing of 16 March 1993 his lawyer was not allowed to conduct his defence in his absence.   4.     The applicant complains under Article 6 paras. 1 and 3 (d) of the Convention that at the Court of Appeal's hearing of 16 March 1993 the Procurator General could put questions to the witnesses, whereas the defence could not.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 6 October 1994 and registered on 2 November 1994.         On 6 April 1995, the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b)   of the Rules of Procedure.         The Government's written observations were submitted on 11 July 1995, after an extension of the time-limit fixed for that purpose.   The applicant replied on 12 September 1995.   THE LAW         The applicant complains under Article 6 paras. 1 and 3 (a), (c) and (d) (Art. 6-1 ; 6-3-a ; 6-3-c ; 6-3-d) of the Convention that in the proceedings on appeal he was not informed of date of the hearing before the Court of Appeal although the authorities should have been aware that he was in detention, that he could therefore not defend himself before the Court of Appeal, that at the Court of Appeal's hearing of 16 March 1993 his lawyer was not allowed to conduct his defence in his absence, including the questioning of witnesses heard and questioned by the prosecution in the course of that hearing.         Article 6 (Art. 6) of the Convention, insofar as relevant, provides as follows:         "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:              a.     to be informed promptly, in a language which he       understands and in detail, of the nature and cause of the       accusation against him;       ...            c.     to defend himself in person or through legal       assistance of his own choosing or, if he has not sufficient means       to pay for legal assistance, to be given it free when the       interests of justice so require;              d.     to examine or have examined witnesses against him and       to obtain the attendance and examination of witnesses on his       behalf under the same conditions as witnesses against him:       ...."         The Government submit that the notification procedure followed was in conformity with Dutch law. The applicant was informed in person of the fact that the prosecution authorities had filed an appeal and the subsequent summons to appear before the Court of Appeal was served in accordance with the relevant domestic statutory rules.         According to the Government, there was nothing either in the contents of the documents available to the prosecution authorities for the hearing on appeal or in the points raised during the hearing on appeal itself to arouse any suspicion that the applicant had been lawfully detained at the moment of the delivery of the summons on appeal. If this had become apparent, the Court of Appeal could have decided to suspend its examination in order to allow the applicant another opportunity to attend.         The fact that the prosecution informed the Court of Appeal on 16 March 1992 that the applicant, in three separate previous judgments, had been sentenced to a total of eight months' imprisonment could not lead to the conclusion that the applicant was in detention at that moment in connection with the execution of these sentences. The Government add that none of the documents in the applicant's case-file makes it clear why the applicant was detained on 6 October 1992, when in the Heerhugowaard prison he was personally notified of the prosecution's appeal.         The Government further submit that the applicant's lawyer in the proceedings before the Court of Appeal was likewise unaware of the applicant's detention, given that he was unable to inform the Court of Appeal of the reasons for the applicant's absence.         The Government also submit that about five months after the hearing before the Court of Appeal in the present case, namely in August 1993, the public prosecutor's office at the Regional Court in Amsterdam introduced a computerised system for finding out who is in detention and where. At the time the appeal summons in the present case was issued, the only way to determine whether an accused was detained was on the basis of the available documents in the case-file.         The Government finally submit that the applicant could have been expected to have made more of an effort to exercise his right to a defended action and that the applicant's lawyer fell short of his responsibility as an accused person's counsel to inform his client of the time at which the appeal hearing would take place. The applicant and his lawyer could each from their side have contacted the other prior to the hearing on appeal, which apparently each of them has failed to do.         The applicant refutes the Government's arguments. He submits that it is common knowledge that only judicial prison sentences are executed in the prison at Heerhugowaard and that all final convictions are registered in the general documentation register of which a summary was made available to the prosecution and the Court of Appeal at the hearing held on 16 March 1993.         The applicant further submits that it is evident from para. 9ff of the conclusions which the Advocate General to the Supreme Court submitted in recent proceedings in cassation in another case (Hoge Raad, 14 February 1995, Nederlandse Jurisprudentie 1995, no. 536) that since 1985 it has been possible to trace where convicted persons are being detained by way of a computerised information system ("MITRA"). It may be assumed that the prosecution authorities therefore were able to discover by means of this system that the applicant was detained on other grounds on 6 October 1992.         The applicant maintains that the prosecution authorities made insufficient effort in his case to inform him of the hearing before the Court of Appeal and thereby violated his rights under Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention.         Insofar as the applicant relies on Article 6 para. 3 (a) (Art. 6-3-a) of the Convention, the Commission notes that the applicant was arrested in flagrante delicto and subsequently summoned to appear before the Magistrate of the Amsterdam Regional Court on charges of attempted extortion committed in association with one or more other persons. The Commission further notes that the applicant was informed in person of the fact that the prosecution authorities had filed an appeal against his acquittal by the Magistrate and that it has not been argued nor appeared that these charges were modified in the proceedings on appeal.       The applicant has not complained that the charges contained in the summons ordering him to appear before the Magistrate fell short of the requirements of Article 6 para. 3 (a) (Art. 6-3-a) of the Convention.         In these circumstances, the Commission finds no indication that the applicant's rights under Article 6 para. 3 (a) (Art. 6-3-a) of the Convention have been violated in the proceedings at issue.         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         As regards the applicant's complaints under Article 6 paras. 1 and 3 (c) and (d) (Art. 6-1 ; 6-3-c ; 6-3-d) of the Convention, the Commission is of the opinion, after a preliminary examination of the substance of these complaints in the light of the parties' submissions, that they raise important issues of fact and law requiring an examination on the merits. These complaints cannot, therefore, be declared inadmissible as being manifestly ill-founded. No other grounds for inadmissibility have been established.         For these reasons, the Commission, unanimously,         DECLARES INADMISSIBLE the applicant's complaint under Article 6       para. 3 (a) (Art. 6-3-a) of the Convention that during the appeal       proceedings he was not informed of the accusations against him;         DECLARES ADMISSIBLE, without prejudging the merits, the remainder       of the application.   Secretary to the Second Chamber       President of the Second Chamber         (M.-T. SCHOEPFER)                       (H. DANELIUS)