CEDH · CASELAW;REPORTS;ENG — 2 juillet 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 } .s23A41E03 { width:36pt; display:inline-block } .s8828C2CA { width:31.28pt; display:inline-block } .s41A29154 { width:6.84pt; display:inline-block } .s9A9585A5 { width:23.34pt; display:inline-block } .s28DAEA75 { width:27.97pt; display:inline-block } .s3BF17DD1 { width:28.07pt; display:inline-block } .s932E7F2A { width:27.5pt; display:inline-block } .s9B2C2C0D { width:18.61pt; display:inline-block } .s79535B21 { width:28.92pt; display:inline-block } .s49A78FE0 { width:26.55pt; display:inline-block } .s7742A756 { width:35.15pt; display:inline-block } .sE23107D { width:24.29pt; display:inline-block } .s69CD3139 { width:17.11pt; display:inline-block } .s9288C869 { width:26.97pt; display:inline-block } .s490C142E { width:28.91pt; display:inline-block } .sECC8F45 { width:24.18pt; display:inline-block } .s44B3A84A { width:19.48pt; display:inline-block } .sC54A673A { width:28.45pt; display:inline-block } .s50014358 { width:26.56pt; display:inline-block } .s80F1F894 { width:21.82pt; display:inline-block } .sC89A8679 { width:33.17pt; display:inline-block } .s6CFF9571 { width:25.89pt; display:inline-block } .s14C63E04 { width:29.39pt; display:inline-block }        EUROPEAN COMMISSION OF HUMAN RIGHTS     SECOND CHAMBER     Application No. 22411/93     A.Ö.     against     the Netherlands     REPORT OF THE COMMISSION     (adopted on 2 July 1997)     TABLE OF CONTENTS     Page   I.   INTRODUCTION     (paras. 1-15)   1     A.   The application     (paras. 2-4)   1     B.   The proceedings     (paras. 5-10)   1     C.   The present Report     (paras. 11-15)   2   II.   ESTABLISHMENT OF THE FACTS   (paras. 16-27)   3     A.   The particular circumstances of the case     (paras. 16-23)   3     B.   Relevant domestic law     (paras. 24-27)   4   III.   OPINION OF THE COMMISSION   (paras. 28-45)   5     A.   Complaint declared admissible     (para. 28)   5     B.   Point at issue     (para. 29)   5     C.   As regards Article 6 paras. 1 and 3 (b) and (c) of the Convention     (paras. 30-44)   5       CONCLUSION     (para. 45)   7   APPENDIX :   DECISION OF THE COMMISSION AS TO THE             ADMISSIBILITY OF THE APPLICATION   8     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 Turkish national, born in 1956 and resides in Rotterdam.   He was represented before the Commission by Mr J.I.M.G. Jahae, a lawyer practising in Amsterdam.   3.   The application is directed against the Netherlands. The respondent Government were represented by their Agents, MM. K. de Vey Mestdagh and H. von Hebel, of the Netherlands Ministry of Foreign Affairs.   4.   The case concerns the applicant's complaint that he did not have a fair trial as the Supreme Court dismissed his appeal in cassation without having notified him of the hearing of the appeal and thus of the time-limit for filing a pleading. The applicant invokes Article 6 paras. 1 and 3 (b) and (c) of the Convention.   B.   The proceedings   5.   The application was introduced on 7 May 1993 and registered on 4 August 1993.   6.   On 30 November 1994 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.     7.   The Government's observations were submitted on 24 February 1995.   The applicant replied on 24 April 1995.   8.   On 28 February 1996 the Commission declared the application admissible.   9.   The text of the Commission's decision on admissibility was sent to the parties on 12 March 1996 and they were invited to submit such further information or observations on the merits as they wished. Neither party availed itself of this possibility.   10.   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.   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   11.   The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, 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. ŠVÁBY       P. LORENZEN       E. BIELI?NAS       E.A. ALKEMA       A. ARABADJIEV     12.   The text of this Report was adopted on 2 July 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:     (i)   to establish the facts, and     (ii)   to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   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.   The particular circumstances of the case   16.   On 26 January 1990, the applicant was arrested and detained on remand on suspicion of drug offences. On 14 November 1990 the Regional Court (Arrondissementsrechtbank) of Rotterdam convicted him of drug offences and sentenced him to six years' imprisonment.   17.   The applicant appealed to the Court of Appeal (Gerechtshof) of The Hague. On 25 November 1991, the Court of Appeal quashed the judgment of the Regional Court, found the applicant guilty of drug offences and sentenced him to seven years and six months' imprisonment with deduction of the time spent in detention on remand.   18.   In the proceedings before both the Regional Court and the Court of Appeal the applicant was represented by counsel.   19.   The applicant himself filed an appeal in cassation with the Supreme Court (Hoge Raad) against the judgment of the Court of Appeal within the legal time- limit of fourteen days set for this purpose.   20.   The applicant had been in detention on remand throughout the entire proceedings. In December 1992 the applicant's lawyer requested the Court of Appeal of The Hague, which remained competent to decide requests for release from pre-trial detention pending the proceedings before the Supreme Court, to suspend the applicant's detention on remand. However, the lawyer was informed by the Registry of the Court of Appeal that this Court was no longer competent to examine the request, since the applicant's appeal in cassation had been rejected.   21.   The Supreme Court had in fact rejected the applicant's appeal in cassation on 3 November 1992. The Supreme Court noted that the applicant had not submitted any grounds of cassation and, after an ex officio examination of the appeal, found no grounds on the basis of which the judgment of 25 November 1991 should be quashed.   22.   It appears that a notification pursuant to Section 437 para. 1 of the Code of Criminal Procedure (Wetboek van Strafvordering), stating that the hearing of the appeal in cassation before the Supreme Court was set for 14 September 1992, had been issued to a remand centre (huis van bewaring) in Rotterdam for service on the applicant. It is not clear, however, to which of the two remand centres in Rotterdam the notification was sent. In any event, the notification was returned to the Supreme Court as the person to whom it was addressed was unknown in the remand centre concerned. The notification was subsequently sent, according to the customary procedure, through the Regional Court of The Hague to the applicant's private address, after this address had been verified with the population registry of the municipality of Rotterdam.   23.   Arguing that the failure to notify the applicant in person of the hearing before the Supreme Court was contrary to the Dutch rules on notification of hearings, the applicant's lawyer applied on 10 February 1993 for a revision (herziening). The Supreme Court rejected this request on 28 September 1993, holding that the grounds advanced by the applicant did not constitute grounds for revision.   B.   Relevant domestic law   24.   Pursuant to Section 437 of the Code of Criminal Procedure (CCP) the defendant must be notified of the impending hearing of his case before the Supreme Court at least eight days before the date of the hearing. If the defendant has not been properly notified, the Supreme Court will order that a new date be set for the hearing.   25.   Section 585 para. 3 CCP provides that this notification should be served (betekend). If the judicial document to be handed over relates to the criminal case for which the defendant has been deprived of his liberty by law, the document should be served on the defendant in person, as provided for in Section 588 para. 1 (a) CCP.   26.   A defendant who has lodged an appeal in cassation may, but is not obliged to, submit grounds for his appeal in writing until the day the Supreme Court is scheduled to hear the case, and/or orally during the hearing before the Supreme Court (Sections 433 para. 2 and 439 CCP), provided that these grounds are also set out in a written document which must be submitted to the Supreme Court before the closure of its hearing. The defendant is not himself permitted to speak before the Supreme Court; pursuant to Section 439 CCP only his legal counsel is entitled to do so.   27.   Pursuant to Section 99 of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie) an appeal in cassation is limited to questions of law and procedural conformity. The Supreme Court will examine the cassation memorials submitted by the Public Prosecutions Department (Openbaar Ministerie) and/or the appellant but will also examine the impugned decision ex officio (Section 441 para. 1 CCP).   III.   OPINION OF THE COMMISSION   A.   Complaint declared admissible   28.   The Commission has declared admissible the applicant's complaint that, in cassation proceedings before the Supreme Court, he did not receive the notification of the date of the hearing before this Court and he was thus unable to prepare and conduct his defence.   B.   Point at issue   29.   The Commission must accordingly examine:   -   whether there has been a violation of Article 6 paras. 1 and 3 (b) and (c) (Art. 6-1, 6-3-b-c) of the Convention.   C.   As regards Article 6 paras. 1 and 3 (b) and (c) (Art. 6-1, 6-3-b-c) of the Convention   30.   Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads 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 established by law ..."   31.   Article 6 para. 3 (b) and (c) (Art. 6-3-b-c) of the Convention reads as follows:     "3.   Everyone charged with a criminal offence has the following minimum rights:   ...   b.   to have adequate time and facilities for the preparation of his defence;     c.   to defend himself in person or through legal assistance of his own choosing ..."   32.   The applicant complains that he was not notified of the date of the hearing of his appeal in cassation before the Supreme Court, as a result of which he was unable to have his defence prepared and conducted. He submits that his lawyer did not notify the Supreme Court in advance of the fact that he was representing the applicant since, in the lawyer's experience, he would only be informed by the Supreme Court's registry that the case-file had not yet been received. Instead, the applicant's lawyer waited for the applicant to be notified of the date of the hearing, as required by law, once such information had been received, he would have identified himself to the Court, would have received a copy of the case-file and would have prepared the arguments underlying the appeal in cassation.   33.   The applicant concedes that the Supreme Court examines cases ex officio, but in his opinion an appeal in cassation is dealt with more thoroughly when grounds for the appeal have been submitted.   34.   The Government submit that, despite the fact that the notification did not reach the applicant as a result of an apparent misunderstanding, his defence rights were not prejudiced to such an extent as to constitute a contravention of Article 6 paras. 1 and 3 (b) and (c) (Art. 6-1, 6-3-b-c) of the Convention.   35.   In this respect the Government contend that the applicant was represented at first instance and on appeal by legal counsel and that the facts of the case were not re-examined in cassation where the Supreme Court solely examines whether the law has been applied correctly and the correct procedure has been observed. Furthermore, the Supreme Court checks as a matter of course to see whether there are any defects in the disputed judgment.   36.   The Government argue, moreover, that, although it appears that the applicant was in contact with his lawyer at the time the appeal in cassation was introduced by the applicant himself, the applicant's lawyer did not notify the Supreme Court that he was representing the applicant. If he had done so, he would have received a copy of the notification. Neither did the applicant's lawyer enquire about the date on which the appeal in cassation was to be heard.   37.   As the requirements of paragraph 3 (b) and (c) of Article 6 (Art. 6-3-b-c) of the Convention constitute specific aspects of the right to a fair trial, guaranteed under paragraph 1, the Commission will examine the complaint under the three provisions taken together (cf. Eur. Court HR, Hadjianastassiou v. Greece judgment of 16 December 1992, Series A no. 252, p. 16, para. 31).   38.   The Commission recalls that the manner of application of Article 6 (Art. 6) to proceedings before appellate or cassation courts depends upon the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of appellate or cassation courts therein (cf. Eur. Court HR, Monnell and Morris v. the United Kingdom judgment of 2 March 1987, Series A no. 115, p. 22, para. 56; and, mutatis mutandis, Jan-Åke Andersson v. Sweden judgment of 29 October 1991, Series A no. 212-B, p. 43, para. 22).   39.   The Commission notes that it is not in dispute between the parties that the applicant was represented by counsel in the proceedings before the Regional Court and the Court of Appeal and it has not been argued that the applicant was unable to advance whatever he deemed relevant in those proceedings. The Commission observes, furthermore, that the present case does not concern the question of the applicant's or his lawyer's absence from the hearing before the Supreme Court as such. The applicant's complaint relates to the opportunity for a person charged with a criminal offence to be informed of the date of a hearing where this hearing also constitutes the time-limit for submission of legal argument.   40.   The Commission observes that in cassation proceedings the Supreme Court does not re-hear the case on the facts but only considers questions of law and compliance with procedural requirements. When no cassation memorial has been submitted by an appellant the Supreme Court will not for that reason declare the appeal in cassation inadmissible but it will examine the case ex officio.   41.   Although domestic law thus ensures that an appeal in cassation will be examined by the Supreme Court despite the absence of a cassation memorial, the Commission cannot exclude that an appellant in cassation may raise issues which would not otherwise have been considered by the Supreme Court. Indeed, if this were not so the possibility for the appellant to submit grounds for his appeal in cassation would appear to be superfluous.   42.   In the circumstances of the present case, moreover, the Commission cannot find that the applicant and his lawyer acted unreasonably or unwisely by awaiting the legally required notification of the date of the hearing to the applicant before preparing a cassation memorial. In view of the fact that the applicant was detained in connection with the criminal charge to which the proceedings in cassation related they were entitled to rely on the authorities serving the notification on the applicant in person pursuant to Section 588 para. 1 (a) CCP.   43.   The Commission emphasises that States must ensure that everyone charged with a criminal offence benefits from the safeguards provided by Article 6 para. 3 (Art. 6-3). Putting the onus on a convicted appellant to find out when an allotted period of time expires, as occurred in the present case, is not compatible with the "diligence" which the Contracting States must exercise to ensure that the rights guaranteed by Article 6 (Art. 6) are enjoyed in an effective manner (cf. Eur. Court HR, Vacher v. France judgment of 17 December 1996, to be published in Reports 1996, para. 28).   44.   The Commission accordingly considers that since the applicant did not receive the notification of the date of the hearing before the Supreme Court he was deprived of the possibility of putting his case, or having his case put, to the Supreme Court in a concrete and effective manner.     CONCLUSION   45.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 paras. 1 and 3 (b) and (c) (Art. 6-1, 6-3-b-c) of the Convention.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber