CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 1997

.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. 24588/94                       by Petrus Hubertus VAN ULDEN                       against the Netherlands          The European Commission of Human Rights (Second Chamber) sitting in private on 21 May 1997, the following members being present:                Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              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 3 June 1992 by Petrus Hubertus VAN ULDEN against the Netherlands and registered on 12 July 1994 under file No. 24588/94;        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      21 March 1996 and the observations in reply submitted by the      applicant on 10 June 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Dutch citizen, born in 1956, and residing in Kerkrade, the Netherlands. Before the Commission he was initially represented by Ms M. Hegeman, a lawyer practising in Maastricht, who was succeeded by Ms T. Spronken, also a lawyer practising in Maastricht.        The facts of the case, as submitted by the parties, may be summarised as follows.   A.    The particular circumstances of the case        On 31 October 1991, the applicant was arrested on the suspicion of having committed eight car thefts. When the public prosecutor (officier van justitie) on 1 November 1991 ordered him to be taken into police custody (inverzekeringstelling) the applicant requested to be legally assisted by his lawyer Ms Hegeman, who had already been assigned to represent him in two other criminal prosecutions instigated against him.        Due to the fact that Ms Hegeman was unavailable at that moment, the applicant was visited at the police station by Mr W., the lawyer on call (piket-advocaat), who provided him with legal assistance in respect of his detention in police custody (inverzekeringstelling). Mr W. subsequently represented the applicant when the Investigating Judge (Rechter-Commissaris) dealt with the public prosecutor's request to have the applicant detained on remand (voorlopige hechtenis).        On 5 November 1991 the applicant telephoned Ms Hegeman and asked her to represent him. Thereupon, Ms Hegeman informed Mr W. by telephone of the applicant's request. However, Mr W. refused to relinquish the case and was officially designated as legal aid defence counsel to the applicant by decision of 6 November 1991 of the Acting President of the Maastricht Regional Court (Arrondissementsrechtbank).        On 7 November 1991 the applicant was represented by Mr W. in the proceedings before the Regional Court which ordered the applicant's continued detention on remand.        On 18 and 28 November and 4 December 1991 the applicant and/or Ms Hegeman requested the President of the Regional Court to amend the assignation whereby Mr W. was appointed as legal aid defence counsel to the applicant. In his letter of 4 December 1991, the applicant stated that the reason for his request was that he had no confidence in Mr W. given the latter's inappropriate remarks to him about Ms Hegeman. Hereupon, the President informed Ms Hegeman on 4 December 1991 that he could see no immediate cause to amend the assignation as requested.        The applicant also complained in writing to the Dean of the Regional Bar Association (Deken van de Orde van Advocaten in het Arrondissement Maastricht) on 3 December 1991 that Mr W., despite the fact that the applicant had no confidence in him, did not wish to relinquish his case. The applicant requested the Dean to be allowed to be represented by Ms Hegeman, whom he trusted. That same day Ms Hegeman requested the Dean to mediate in the conflict.        Mr W. was not present on 5 December 1991 when the Regional Court examined the prosecution's demand that the applicant's detention on remand should be prolonged. The following day the applicant requested the President of the Regional Court to revise his earlier decision not to amend the assignation of Mr W. Also on 6 December 1991 Ms Hegeman requested the President to assign her instead of Mr W. as legal aid defence counsel to the applicant.        On 10 December 1991, the President informed the Dean of the Regional Bar Association that at that time he saw no reason to amend the assignation, upon which Ms Hegeman filed a complaint with the Dean on 11 December 1991 against Mr W. for having acted contrary to the Rules of Conduct for Lawyers (Gedragsregels voor Advocaten).        Ms Hegeman represented the applicant on 31 December 1991 before the Regional Court where a further request for the prolongation of the applicant's detention on remand was examined. The Regional Court decided to release the applicant. Since Mr W., who had not been present at the hearing, had not given Ms Hegeman permission to represent the applicant, he filed a complaint against Ms Hegeman with the Dean.        On 7 January 1992, the Dean informed the parties that in his opinion Mr W. should relinquish the applicant's case. As Mr W. refused to do so, the Dean referred the complaints which had been lodged with him to the Disciplinary Board (Raad van Discipline) of Den Bosch.        On 4 February 1992, a hearing took place before the Regional Court in several criminal proceedings against the applicant, including the one where Mr W. had been assigned legal aid defence counsel and several others in which Ms Hegeman had been so assigned.        Mr W. requested the Court to record his presence at the hearing. Following mediation by the Dean and consultation with the President of the Regional Court, the judge presiding over the hearing allowed Ms Hegeman to examine the documents pertaining to the proceedings in which Mr W. had been assigned. At the hearing this judge further stated that Ms Hegeman would be able to conduct the defence in these proceedings. The hearing was then adjourned as the applicant was unable to attend.        A hearing before the Disciplinary Board took place on 1 June 1992 during which Mr W. was three times requested by the President of the Board to relinquish the case since the relationship between Mr W. and the applicant was no longer based on trust. However, Mr W. refused, saying that he had been appointed by the President of the Regional Court and that the latter had not found it necessary to amend this assignment.        On 6 July 1992, the Disciplinary Board decided that it could not deal with the applicant's complaint against Mr W., since his letter merely contained a request for the assignment of Ms Hegeman and not a complaint directed against Mr W.        The Disciplinary Board declared Ms Hegeman's complaint against Mr W. inadmissible. It held that the dispute between the applicant and Mr W. did not directly concern her. Pursuant to Article 56 of the Act on the Legal Profession (Advocatenwet) no appeal to the Disciplinary Court (Hof van Discipline) lies against a decision of inadmissibility.        A complaint filed by Mr W. against Ms Hegeman concerning her visit to the applicant whilst he was detained on remand was declared ill-founded by the Disciplinary Board since Ms Hegeman represented the applicant in different proceedings and she was therefore entitled to visit him. As regards the complaint that Ms Hegeman had represented the applicant on 31 December 1991 without the permission of Mr W., the Disciplinary Board held that Mr W. could not object to the interests of his client being looked after in his absence. The Board declared this complaint inadmissible.        In the criminal proceedings before the Regional Court against the applicant a hearing took place on 20 November 1992. Mr W. did not appear and Ms Hegeman conducted the applicant's defence also in the case in which Mr W. had been assigned. Ms Hegeman subsequently sent an invoice to the applicant which has so far not been paid.        On 4 December 1992 the Regional Court convicted the applicant of all offences he had been charged with and sentenced him to seventeen months' imprisonment with deduction of the time spent in pre-trial detention. The applicant did not appeal against this judgment.   B.    Relevant domestic law        If an accused who is being detained in police custody (inverzekeringstelling) has not chosen a defence counsel, the prosecution department informs the lawyer "on call" without delay.        This lawyer will represent the accused for the duration of the police custody (Article 40 of the Code of Criminal Procedure - Wetboek van Strafvordering, hereinafter "CCP").        If, following the expiration of the police custody, detention on remand (voorlopige hechtenis) is ordered the President of the Regional Court assigns legal aid defence counsel ex officio (Article 41 para. 1 (a) CCP).        The assignment of a legal aid defence counsel covers the entire proceedings for each particular level of jurisdiction (Article 43 CCP), including the period for filing an appeal to an appeal court. Pursuant to Article 45 para. 2 CCP, an accused may request to be assigned another legal aid defence counsel.   COMPLAINT        The applicant complains under Article 6 para. 3 (c) of the Convention that in the criminal proceedings against him he did not receive free legal assistance of his own choosing.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 3 June 1992 and registered on 12 July 1994.        On 17 January 1996 the Commission decided to communicate the application to the respondent Government and to invite them, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure, to submit written observations on the admissibility and merits of the application.        The Government's written observations were submitted on 21 March 1996. The applicant replied on 10 June 1996.   THE LAW        The applicant complains under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention that in the criminal proceedings against him he did not receive free legal assistance of his own choosing.        Article 6 para. 3 (c) (Art. 6-3-c) of the Convention reads as follows:        "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 or, if he has not sufficient means      to pay for legal assistance, to be given it free when the      interests of justice so require;      ..."        The Government submit in the first place that the applicant failed to comply with the requirement of exhaustion of domestic remedies under Article 26 (Art. 26) of the Convention in that he himself failed to file a disciplinary complaint against Mr W.        The Government further submit on this point that it does not appear that the applicant and Ms Hegeman raised the question of the failure to change the assignment   - as they saw it - in the criminal proceedings against the applicant, where Ms Hegeman was allowed to conduct the applicant's defence.        As to the substance, the Government submit that, in conformity with the relevant regulations, the authorities tried to contact Ms Hegeman at the relevant time as the applicant had stated he wished to be represented by her. As she was unavailable at that time, the applicant was represented by the duty lawyer, Mr W. In such cases, pursuant to Articles 41 and 42 of the CCP, the assigned lawyer remains assigned for the rest of the proceedings. The Government consider that limitations on the change of legal aid lawyers are necessary. After a legal aid lawyer is appointed, he is expected to study the case thoroughly, which means that only if he continues with the case those efforts will be rewarded.        The Government further submit that, according to the case-law of the Convention organs, a free choice of a legal aid lawyer is not an absolute right. Under Article 45 of the CCP, both the assigned lawyer and the suspect may request that another lawyer be assigned. In practice, this does not happen unless there are good grounds for doing so. The Government consider that there has been no violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention in the present case, as the applicant has never indicated in what way Mr W. did not function properly in the exercise of the applicant's defence and, in view of the conflict between Mr W. and Ms Hegeman, the President of the Regional Court dealing with the criminal proceedings against the applicant allowed Ms Hegeman, in addition to Mr W., to inspect the documents and defend the applicant.        The applicant submits that he has complied with the exhaustion requirement. In his view, to lodge a complaint himself against Mr W. does not constitute an effective and adequate remedy within the meaning of Article 26 (Art. 26) of the Convention, as at the time the Disciplinary Board rejected his complaint on 6 July 1992 the first hearing in the criminal proceedings had already been held, i.e. on 4 February 1992.        The applicant further submits that this remedy cannot be regarded as effective, as, even assuming that his complaint had been held to be well-founded by the Disciplinary Board, the competence to assign a legal aid lawyer to suspects in pre-trial detention belongs exclusively to the President of the Regional Court.        As to the substance, the applicant submits that he informed the Regional Court of Maastricht repeatedly that he had absolutely no confidence in Mr W. In his opinion the court itself could have concluded that Mr W. was not functioning properly given his absence at the hearings on the extension of the applicant's pre-trial detention and the fact that, at the hearing held on 4 February 1992, Mr W. appeared, requested the Regional Court to record his presence in order to be able to obtain his legal aid fee and left the hearing immediately.        Relying, inter alia, on the European Court's judgment of 25 April 1983 in the case of Pakelli v. Germany (Series A no. 64), the applicant argues that Article 6 para. 3 (c) (Art. 6-3-c) of the Convention includes the right for an accused person to have recourse to free legal assistance of his own choosing.        Given the attitude of Mr W. and the obvious conclusions which the court could draw from the way in which Mr W. performed his duties as legal aid lawyer in the present case, whereas Ms Hegeman was prepared to defend him and in fact did so, the applicant considers it incomprehensible why he should have to bear the costs of legal assistance. He considers that the Dutch authorities fell short of their obligations under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention by failing to comply with his request to assign Ms Hegeman as his legal aid lawyer.        The Commission does not find it necessary to determine whether or not the applicant has duly exhausted domestic remedies within the meaning of Article 26 (Art. 26) of the Convention, as in any event the complaint is manifestly ill-founded on the following grounds.        The Commission recalls that a person charged with a criminal offence, who does not wish to defend himself in person, must be able to have recourse to legal assistance of his own choosing and that, if he does not have sufficient means to pay for such assistance, he is entitled under the Convention to be given it free when the interests of justice so require (Eur. Court HR, Pakelli v. Germany judgment of 25 April 1983, Series A no. 64, p. 15, para. 31).        However, notwithstanding the importance of a relationship of confidence between lawyer and client, the right under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention for an accused to be defended by counsel of his own choosing cannot be considered to be absolute. It is necessarily subject to certain limitations where free legal aid is concerned and also where it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When appointing defence counsel the national courts must certainly have regard to the defendant's wishes. However, the courts can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (cf. Eur. Court HR, Croissant v. Germany judgment of 25 September 1992, Series A no. 237-B, p. 32-33, para. 29).        As regards the present case, the Commission notes that, on 1 November 1991, the applicant did request Ms Hegeman's appointment as his legal aid lawyer. The Commission further notes that the authorities acceded to this request and attempts were made to contact her. However, as she was not available at that time and the applicant required immediate legal assistance, the legal aid lawyer "on call", i.e. Mr W., was appointed, and he did in fact provide the applicant with legal assistance in connection with the latter's pre-trial detention.        The Commission cannot find this course of action contrary to Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.        The Commission further considers that it does not appear from the facts of the case that, at any point in the domestic proceedings, the applicant raised complaints alleging that Mr W. fell short of his professional obligations as the applicant's defence lawyer. The applicant did in fact request Mr W. to be replaced by Mrs Hegeman but, insofar as can be established, this request was not based on an alleged lack of quality of Mr W.'s professional activities in the applicant's case, but on Ms Hegeman's activities as legal aid lawyer in two other criminal procedures against the applicant.        It appears from the applicant's letters to the President of the Regional Court and the Dean of the Regional Bar Association that the applicant's request for Mr W.'s replacement was founded on his lack of confidence in Mr W. and that the applicant's only reason for holding this opinion was that certain inappropriate remarks about Ms Hegeman had allegedly been made by Mr W. The applicant's opinion was not based on the quality of Mr W.'s activities as the applicant's defence lawyer.        The Commission cannot find it unreasonable, in view of the general desirability of limiting the total costs of legal aid, that national authorities take a restrictive approach to requests to replace legal aid lawyers once they have been assigned to a case and have undertaken certain activities in such a case.        In the particular circumstances of the present case, the Commission cannot find that the refusal to replace Mr W. by Ms Hegeman as the applicant's legal aid lawyer infringed the applicant's rights under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention as the request for the replacement of Mr W. was not based on reasons which could reasonably be regarded as sufficient for reaching the conclusion that the effectiveness of the applicant's defence was no longer secured.        Finally, the Commission notes that the trial court did in fact grant Ms Hegeman access to the applicant's case-file and allowed her to conduct the applicant's defence.        In these circumstances, the Commission cannot find that the refusal to replace Mr W. by Ms Hegeman as the applicant's legal aid lawyer affected the fairness, within the meaning of Article 6 (Art. 6) of the Convention taken as a whole, of the proceedings at issue.        It follows that the application must be rejected as 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.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber