CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mars 1998

.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. 34329/96                       by Lyas Rachid Bruno BENAHMED                       against the Netherlands          The European Commission of Human Rights (Second Chamber) sitting in private on 4 March 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  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 10 October 1996 by Lyas Rachid Bruno BENAHMED against the Netherlands and registered on 20 December 1996 under file No. 34329/96;        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 1972, and resides in Amsterdam. Before the Commission he is represented by Mr G.P. Hamer, a lawyer practising in Amsterdam.        The facts of the case, as submitted by the applicant, may be summarised as follows.   1. Particular circumstances of the case        On 7 April 1993, the applicant was arrested and detained on remand on suspicion of attempted theft and unlawful possession of a fire arm. The police did not allow him to contact his regular lawyer, Mr Hamer, despite the applicant's explicit request to be assisted by Mr Hamer nor did the police inform any lawyer on call (piket-advocaat) of the applicant's arrest and detention. The applicant was released on 9 April 1993.        On 5 January 1994, the applicant was arrested and detained on remand on suspicion of attempted manslaughter. During the initial phase of this detention the applicant was not allowed to have any contacts with the outside world with the exception of certain privileged officials, including his lawyer. He was released at some unspecified date in June 1994.        By summons dated 18 February 1994, the applicant was ordered to appear on 8 April 1994 before the Magistrate (politierechter) of the Regional Court (Arrondissementsrechtbank) of Haarlem in connection with the facts for which the applicant had been arrested on 7 April 1993. This summons did not reach the applicant as it was sent to his official home address at M. street in Amsterdam and as, at that time, he was detained on remand without the right to have contacts with the outside world. Also his lawyer was unaware that these criminal proceedings had been instituted since the applicant had remained without legal assistance at the time of his arrest and detention in April 1993.        On 8 April 1994, following proceedings in absentia as neither the applicant or his lawyer had appeared, the Magistrate convicted the applicant of attempted theft and unlawful possession of a fire arm and sentenced him to two months' imprisonment.        On 2 June 1994, this judgment was served on the applicant in person in the remand centre where he was detained. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam.        At the hearing of the applicant's case before the Court of Appeal on 10 May 1995 both the applicant and his lawyer were present. The Court of Appeal heard the applicant and pleas for the prosecution and the defence.        By judgment of 24 May 1995, following adversarial proceedings, the Court of Appeal quashed the judgment of 8 April 1994, convicted the applicant of attempted theft and unlawful possession of a fire arm and sentenced him to six weeks' imprisonment.        The Court of Appeal rejected the argument raised by the defence that the initial summons should be declared null and void and that the case should be referred back to the Magistrate. The Court of Appeal held on this point, inter alia, that there is no provision in the law or any treaty to the effect that the judicial authorities, in a case where an accused has a permanent place of residence, must verify whether the accused is detained on other grounds. It further held that the Magistrate had no reasons to take into account the possibility that the applicant could be detained at the time of the hearing before the Magistrate. The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad).        By judgment of 11 June 1996, the Supreme Court rejected the applicant's appeal in cassation. The Supreme Court accepted the grounds on which the Court of Appeal had rejected the argument that the initial summons should be declared null and void and that the case should be referred back to the Magistrate.   2. 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 (Wetboek van Strafvordering, hereinafter "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.     upon the person who has been lawfully deprived of his                  liberty in the Netherlands in connection with the                  criminal proceedings to which the judicial                  notification relates: in person;            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 himself 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."        Under Article 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 (Article 403 CCP). An objection may not be filed by an accused who has the opportunity to appeal to a higher court with jurisdiction as to both fact and law (Article 399 para. 2 CCP). It follows from Article 399 para. 1 CCP that no objection may be filed against a judgment in absentia given on appeal.     COMPLAINT        The applicant complains under Article 6 paras. 1 and 3 of the Convention that he was harmed in his defence rights in that the judicial authorities fell short of their obligation under the Convention to secure that he was informed of the hearing of his case before the Magistrate and thus provide him with the opportunity to defend himself. He submits that, given the contents of his criminal record, the authorities could have suspected that the applicant was detained at the relevant time and/or have contacted his regular lawyer.     THE LAW        The applicant complains under Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention that he was harmed in his defence rights in that the judicial authorities failed to inform him of the hearing of his case before the Magistrate.        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 recalls that the guarantees contained in paragraph 3 of Article 6 (Art. 6) of the Convention are constituent elements, amongst others, of the general notion of a fair trial referred to in Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court HR, Hennings v. Germany judgment of 16 December 1992, Series A no. 251-A, p. 11, para. 25) and 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).        The Commission notes that the summons to appear before the Magistrate on 8 April 1994 never reached the applicant, as it   was sent to the applicant's home address whereas he was detained at that time. Consequently, 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, adversarial proceedings were held before the Court of Appeal. In its judgment of 24 May 1995, 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 subsequent proceedings before the Court of Appeal and the Supreme Court fell short of the requirements of Article 6 (Art. 6) of the Convention as regards fairness of proceedings.        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, unanimously,          DECLARES THE APPLICATION INADMISSIBLE.        M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber