CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 octobre 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. 32368/96                       by Harald Eduard VAN BOMMEL                       against the Netherlands          The European Commission of Human Rights (Second Chamber) sitting in private on 22 October 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 19 September 1995 by Harald Eduard VAN BOMMEL against the Netherlands and registered on 22 July 1996 under file No. 32368/96;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Dutch national, born in 1953, and resides in Eindhoven, the Netherlands.        The facts of the case, as submitted by the applicant, may be summarised as follows.   a.    Particular circumstances of the present case        On 24 January 1992, the applicant was present in the home of his friend Ms A.F., when the latter's former husband W.R., in the company of his friend Ms S.E., arrived there to pick up the two children born out of their dissolved marriage in the context of an access arrangement. A fight broke out between the applicant and W.R. as one of the children was allegedly too sick to leave with W.R. The latter went to the police who intervened.        On 7 February 1992, W.R. filed an assault complaint against the applicant with the police. On the same day the police took statements from W.R. and S.E.        On 18 February 1992, the police took a statement by A.F. On the same day the police also took a statement from the applicant after he had been informed by the police of what he was suspected and that, as a suspect, he was not obliged to answer any questions. According to the formal minutes on the applicant's questioning by the police on 18 February 1992 (proces-verbaal van verhoor), the applicant stated on that occasion that he was residing at J.E. street 27 in Eindhoven.        The applicant was deleted from the municipal population register of Eindhoven on 10 July 1992. He resided abroad between 23 July 1992 and 8 February 1993.        On 8 February 1993, a summons addressed to the applicant to appear before the Magistrate (politierechter) of the Regional Court (Arrondissementsrechtbank) of Roermond on charges of assault committed on 24 January 1992, was presented by the postal services at the address E. street 38 in Eindhoven. However, the applicant had left this address already on 10 July 1992. The postal services subsequently returned the summons to the prosecution department under the mention that, according to information obtained from the occupant, the addressee was not living or formally residing at the address indicated in the summons.        As the summons to appear before the Magistrate could not be served on the applicant otherwise, it was served on the Registrar of the Regional Court (Arrondissementsrechtbank) of Roermond on 18 February 1993 under the mention that there was no known address of the applicant in the Netherlands. On 14 April 1993, following proceedings in absentia, the Magistrate convicted the applicant of assault and imposed a fine of 750 Dutch guilders and a suspended prison sentence of two weeks.        On 17 May 1993, the applicant registered himself with the municipal authorities of Eindhoven as residing in this municipality. In September 1993, the applicant found out that he had been convicted on 14 April 1993. On 24 September 1993 Mr M.N., a lawyer practising in Venlo, filed an appeal with the Court of Appeal (Gerechtshof) of 's-Hertogensbosch on behalf of the applicant. The lawyer stated in the written act of appeal (akte hoger beroep) he deposited that the applicant was residing at V. street 16B in Eindhoven.        Following an unsuccessful attempt on 11 March 1994, the summons to appear before the Court of Appeal was served on the applicant in person on 12 March 1994 by the postal services.        In its judgment of 11 May 1994, following adversarial proceedings in the course of which the Court of Appeal took evidence from the applicant, W.R. and S.E., the Court of Appeal quashed the judgment of 14 April 1993, and after a full review of the facts and evidence convicted the applicant of assault and imposed a fine of 750 Dutch guilders and a suspended prison sentence of two weeks.        On 24 May 1994, the applicant filed an appeal in cassation with the Supreme Court (Hoge Raad). In the written act of cassation (akte cassatie), which he deposited on that date with the Registry of the Court of Appeal, the applicant indicated that he resided at H. street 36 in Venray.        On 25 August 1994, the applicant registered with the municipal authorities of Venray as residing in that municipality.        The notification (aanzegging) of the date of the hearing in cassation before the Supreme Court was sent by the Procurator General at the Supreme Court (Procureur-Generaal bij de Hoge Raad) to the applicant at the address H. street 36 in Venray. When, on 10 November 1994, the postal services presented this notification at this address, the applicant was not there. The notification was, however, left in the hands of a person present, Mr H., who stated that he was willing to accept the notification and to transmit it without delay to the applicant. Apart from containing the date and hour of the hearing before the Supreme Court in the applicant's case, the notification further contained procedural information, i.e. that oral pleadings before the Supreme Court could only be presented by a lawyer and not by the applicant himself and that the applicant could file a request for legal aid for this purpose.        This notification allegedly did not reach the applicant. Consequently, the applicant was not present at the hearing of his case before the Supreme Court on 31 January 1995.        By judgment of 11 April 1995, the Supreme Court rejected the applicant's appeal in cassation. In a notification, sent to B. street 27 in Venray, the applicant was informed of the judgment of 11 April 1995.        On 29 May 1995, the prosecution department at the Court of Appeal of 's-Hertogenbosch addressed a written notification to the applicant, at the address K. 58 in Eindhoven, in respect of the conditional prison sentence imposed by the Court of Appeal on 11 May 1994.        On 31 May 1995, the applicant informed the Procurator General at the Supreme Court that he had received the notification that his appeal in cassation had been rejected. Stating that he had not received a summons to appear before the Supreme Court, the applicant filed a written request for a revision (herziening) to the Supreme Court. He stated that B. street 27 in Venray was his address.        By letter of 9 June 1995, the Supreme Court Registrar informed the applicant that the notification of the hearing had been served in accordance with the requirements of Article 588 para. 1 (b) of the Code of Criminal Procedure (Wetboek van Strafvordering) and that a request for revision would, therefore, stand little chance of success.        In his reply of 11 June 1995, the applicant disputed the lawfulness of the serving of the notification of the hearing. He stated that at the time of the notification he was formally registered as residing at B. street 27 in Venray. He further stated that he maintained his revision request and that correspondence could be addressed to V. street 16b in Eindhoven.        By letter of 21 August 1995, the municipal authorities of Maastricht confirmed that the applicant had sought to register himself on 17 February 1993 in the municipal population register of Maastricht.        In its decision of 28 November 1995, the Supreme Court declared the applicant's request for revision inadmissible as its judgment of 11 April 1995 did not constitute a final conviction within the meaning of Article 457 para. 1 of the Code of Criminal Procedure.   b.    Relevant domestic law        The rules governing the procedure of the serving of judicial notifications are set out in Articles 585 - 590 of the Code of Criminal Procedure (CCP).        According to Article 585 para. 3 CCP summonses and notifications (dagvaardingen en aanzeggingen) must be served (betekening). Pursuant to Article 587 para. 1 CCP, a serving takes place by the delivery (uitreiking) of a judicial communication (gerechtelijke mededeling) by the postal services.        Article 588 CCP, insofar as relevant, reads as follows:   <Translation>      "1.    The serving takes place:            a.     ...            b.     upon all others: in person or, in case the serving in                  person is not prescribed and the communication is                  presented in the Netherlands:                  1*   to the address where the addressee is registered                  in the basic personal data administration, or                  2* if the addressee is not registered in the basic                  personal data administration, to the permanent or                  temporary domicile of the addressee, or                  3*   if the address is not registered in the basic                  personal data administration and a permanent or                  temporary domicile is not known, to the Registrar of                  the Regional Court before which or in whose judicial                  district the case will be heard or has been heard                  previously.        2.     ...        3.     Where in a situation referred to in paragraph 1, section b.            under 1* or 2*,            a.     the addressee is not found, the serving takes place by                  delivery <of the judicial communication> to the person                  present at that address who declares to be willing to                  transmit the document without delay to the addressee;            b.     nobody is found, the serving takes place by delivery                  to the addressee or a person authorised by the                  addressee at a place the address of which is indicated                  in a written message which must be left behind;            c.     the delivery has not taken place, the communication is                  returned to the authority which issued it. When it                  appears that the addressee on the day of presentation                  and at least five days thereafter has been registered                  in the basic personal data administration as residing                  at the address indicated on the communication, the                  communication shall subsequently be delivered to the                  Registrar of the Regional Court before which or in                  whose judicial district the case will be heard or has                  been heard previously. The Registrar will then send                  the communication without delay by regular mail to                  that address and annotates this on the act of delivery                  referred to in Article 589 <CCP>.      4.     ..."   Article 590 CCP, insofar as relevant, provides:   <Translation>      "1.    The serving is null and void, where the delivery has not            taken place in accordance with the conditions set out in            Articles 588 paras. 1 and 3, and 589.      2.     ...      3.     Where the addressee is registered as resident in the basic            personal data administration, whereas at the trial it            appears that he resides in fact at another address, the            judge may order the appearance of the suspect who has not            appeared."     COMPLAINTS        The applicant complains under Article 6 para. 1 of the Convention and Article 2 of Protocol No. 7 that he did not receive a fair trial in the criminal proceedings against him and that he was deprived of access to an appeal court. He submits that the notification of 18 February 1993 is null and void and that he wanted to submit this objection to the Supreme Court, which has been made impossible by the Supreme Court's failure to send him a notification in accordance with Article 588 CCP as this failure resulted in his absence at the hearing before the Supreme Court.     THE LAW        The applicant complains under Article 6 (Art. 6) of the Convention and Article 2 of Protocol No. 7 (P7-2) that he did not receive a fair trial in the criminal proceedings against him and that he was deprived of access to an appeal court.        The Commission notes in the first place that the Netherlands is not a Party to Protocol No. 7. Consequently, insofar as the applicant relies on Article 2 of Protocol 7 (P7-2), it follows that this part of the application must be rejected for being incompatible ratione personae with the Convention.        Article 6 (Art. 6) of the Convention, insofar as relevant, reads:        "1.    In the determination of ... any criminal charge against      him, everyone is entitled to a fair ... hearing .... by a ...      tribunal established by law. ...        2.     ...        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;              b.     to have adequate time ... for the preparation of his      defence;              c.     to defend himself in person or through legal      assistance of his own choosing ... ;        ...."        The Commission notes that the applicant's complaint refers to a summons dated 18 February 1993. The Commission understands the complaint as referring to the summons dated 8 February 1993 ordering the applicant to appear before the Magistrate of Roermond on assault charges. The Commission further notes that, as this summons was sent to an address where the applicant no longer resided and apparently never reached the applicant, the proceedings before the Magistrate resulted in the applicant's conviction after proceedings held in absentia.        However, the Commission further notes that, following the applicant's appeal against his conviction by the Magistrate, the applicant was duly and successfully summoned to appear before the Court of Appeal. Furthermore, adversarial proceedings were held before the Court of Appeal in the course of which the Court of Appeal took evidence from the applicant and two other persons involved. Finally, in its judgment of 11 May 1994, the Court of Appeal quashed the Magistrate's conviction in absentia.        In these circumstances, the Commission considers that the applicant can no longer claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention insofar as his complaint relates to the proceedings in absentia before the Magistrate.        The Commission further finds no indication that the proceedings before the Court of Appeal fell short of the requirements of Article 6 (Art. 6) of the Convention as to the fairness of criminal proceedings.        The question therefore remains whether the applicant was deprived of a fair hearing in the subsequent cassation proceedings before the Supreme Court.        The Commission considers at the outset that the question whether or not the notification of the hearing before the Supreme Court has been served in accordance with Article 588 of the Code of Criminal Procedure is not a matter which it can review under the terms of Article 19 (Art. 19) of the Convention. In the present case, the Commission can only examine whether or not the alleged failure of the judicial authorities to duly notify the applicant of the date and time of his hearing before the Supreme Court deprived him of a fair hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. No. 19890/92, Dec. 3.5.93, D.R. 74, p. 234).        The Commission recalls that the object and purpose of Article 6 (Art. 6) of the Convention taken as a whole show that a person "charged with a criminal offence" is entitled to take part in the hearing of his case and that the Contracting States must exercise diligence in order to ensure that the rights guaranteed by this provision are enjoyed in an effective manner (cf. Eur. Court HR, Colozza v. Italy judgment of 12 February 1985, Series A no. 89, pp. 14-15, paras. 27 and 28). The Commission further recalls that an accused must be informed with sufficient notice about the date and place of the trial (cf. No. 8231/78, Dec. 6.3.82, D.R. 28, p. 5).        In the present case, the Commission observes in the first place that the notification of the hearing in cassation was sent to the address indicated by the applicant in the formal act of cassation he deposited with the Registry of the Court of Appeal. The Commission further notes that, when the postal services presented the notification to this address, the applicant was not there. However, another person present, Mr H., stated that he was willing to accept the notification and to transmit it without delay to the applicant, which is a situation foreseen in Article 588 para. 3 of the Code of Criminal Procedure.        Secondly, the Commission has found no indication that the applicant had informed the Registry of the Supreme Court at any point in time that he had moved to a different address although he was aware that cassation proceedings were pending and could thus reasonably be expecting a notification of the date and hour of the hearing of his case before the Supreme Court.        Given the fact that the notification concerning the hearing in cassation was delivered in a manner foreseen by the Code of Criminal Procedure and the applicant's apparent lack of diligence in his case, the Commission is of the opinion that the authorities cannot be held responsible for the applicant's absence at the hearing of his case before the Supreme Court.        It follows that this part of 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, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.        M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber