Last Updated on May 17, 2019 by LawEuro
Communicated on 15 October 2018
THIRD SECTION
Application no. 72631/17
X
against the Netherlands
lodged on 2 October 2017
STATEMENT OF FACTS
1. The applicant, Ms X, is a Netherlands national. She is represented before the Court by Mr M. Berndsen, a lawyer practising in Amsterdam.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. After the postponement at the request of the defence of a hearing scheduled for 3 March 2014, on 30 January 2015 the single-judge chamber of the criminal division (politierechter) of the Central Netherlands Regional Court (rechtbank Midden-Nederland) tried the applicant for theft. The defence was conducted by counsel, who had been authorised (gemachtigd) by the applicant to do so in her absence. The single-judge chamber convicted the applicant of theft committed on 18 December 2013 and on 25 October 2015 (an added case; gevoegde zaak) and sentenced her to two months’ imprisonment, suspended for two years, and ordered the execution of two earlier suspended sentences for theft, the first a four-week prison sentence imposed in 2012 and the second a fine of 5,000 euros imposed in 2013.
4. The applicant lodged an appeal with the Arnhem-Leeuwarden Court of Appeal (gerechtshof).
5. The applicant was summoned to the hearing of the Court of Appeal to be held on 4 June 2015.
6. By letter of 21 May 2015 the applicant’s counsel informed the Court of Appeal that the applicant would be out of the country on that date in the service of her employer, a multinational company. The applicant’s counsel submitted e-mail correspondence from within that company, received from the applicant the previous day, setting out the applicant’s travel schedule and reflecting the impossibility of adjusting it to the date of the Court of Appeal’s hearing.
7. On 4 June 2015 the Court of Appeal adjourned the hearing sine die.
8. The Court of Appeal informed the applicant’s counsel that the hearing would be resumed on 20 July 2015. This date was chosen in consultations between the applicant’s counsel, Mr S., and the registry of the Court of Appeal.
9. On 18 June the applicant’s counsel Mr S. sent the president of the Court of Appeal a fax message that included the following:
“In consultation with a Court of Appeal staff member a new hearing has been agreed with me for 20 July next at 9.30 a.m.
I have informed Ms X of this by e-mail. She has informed me by return of e-mail that she will be abroad on 20 July 2015 in connection with her work … It is apparent from her messages that she will be in the Netherlands from 27 July 2015 until the end of August 2015.
On her behalf, I request you to deviate from what has been agreed with your staff member and to set a hearing date during the period in which she will be in the Netherlands, of course with my apologies for the inconvenience.
For the record I attach, by way of further explanation, the e-mail correspondence between my client and myself. This includes her working schedule until the end of the year.”
The attached e-mail correspondence included, as well as the applicant’s travel schedule, an e-mail from the applicant stating that she would be abroad for work on a range of dates including 20 July 2015.
10. On 30 June 2015 Mr S. sent the president of the Court of Appeal a fax message in the following terms:
“Re my last letter to you in this case, that of 18 June 2015, I have spoken to one of your staff members, Ms R. She told me that you were not in favour of a further adjournment, because the case was already in process for some time. I was asked whether I could not speak on behalf of Ms X at the hearing.
[I] have forwarded this proposal to my client in an e-mail. She has replied to me today. I attach a copy of her e-mail.
On her behalf, I urge you to address her arguments. I have already sent you a schedule of her business abroad. This schedule also indicates clearly when my client will be able to attend a hearing.”
The attached e-mail from the applicant included the following:
“I have indicated the dates on which I will be abroad for work in good time. Has this information been forwarded to the [Court of Appeal]?
The (unjustified) impression is now being given that I am trying to shift the hearing date all the time, which is not conducive to making a positive image.
In addition, I would like the hearing to be over so that I can close this episode and move on.
I would like to attend the hearing myself because I am best placed to explain the causes of my reoffending and also my willingness to prevent reoccurrence. I can also explain the aspects that have had a positive effect on preventing reoffending in the period since I was last arrested. In addition, I wish to address any questions the judges may have for me in person.
I therefore ask you to inform the [Court of Appeal] that:
I will be abroad in the period [including 20 July 2015] and have so indicated well in advance;
My stay abroad is consequent on my professional activities and concerns [a project] in several countries that cannot be rescheduled;
I wish to be present at the hearing and explain my case in person.
My urgent request to the [Court of Appeal] is therefore to move the hearing of 20 July 2015 to a different date.
I again attach an overview of the periods during which I will be abroad in connection with my work: …”
11. The Court of Appeal resumed the hearing on 20 July 2015. The applicant was not present. Mr S. stated that he had not been authorised (gemachtigd) to conduct the defence. He made a further statement, which was recorded as follows:
“I request an adjournment. I have made a professional mistake by not finding out from my client whether she would be in the Netherlands on the day of the hearing. I thought she would be absent abroad only once. I have not had sufficient insight into her work. She works for the Y company … I did not realise that she would need to spend time abroad throughout the year. I should have consulted with her before. She wants to attend the hearing no matter what. I have discussed with her by e-mail whether she could authorise me [to conduct the defence in her absence], but she has indicated that she absolutely intends to attend the hearing in person. …”
12. The prosecuting Advocate General (Advocaat-Generaal) made the following statement during the hearing:
“I am opposed to an adjournment. This is a suspect with a criminal record. The case has been adjourned before. According to the probation and social rehabilitation service (reclassering) the suspect has a worrying history of evading care (zorgwekkende zorgmijder). There can be no more adjournment. I see no documents relating to the suspect’s job.”
13. The Court of Appeal refused to order a second adjournment. It declared the applicant to be in default of appearance (verstek) and proceeded with the hearing in the applicant’s absence. Its refusal is recorded in the following terms:
“The request for an adjournment is refused. The suspect has appealed. In view of the job she states to have, which apparently means that she has to spend much time abroad, it would have been proper for the suspect to inform her counsel in advance of the dates on which she knew that she would be available or not as the case might be. It would moreover have been proper for counsel to check with the suspect whether she would be abroad on the planned hearing date. In addition, the Court of Appeal has weighed the interest of society in an effective and expeditious trial and the interest of a proper organisation of judicial proceedings. In this connection it is significant that the case has been adjourned once already because the applicant was abroad.”
14. The prosecuting Advocate General asked for the judgment of the Regional Court (see paragraph 3 above) to be confirmed.
15. The Court of Appeal gave judgment on 3 August 2015. The Court of Appeal found the applicant guilty as charged and replaced the suspended prison sentence imposed by the Regional Court by an unconditional sentence of two weeks’ imprisonment. It also ordered the execution of the two earlier suspended sentences, as the Regional Court had done. As regards sentencing, the Court of Appeal considered, inter alia, that:
“The suspect has been found guilty of two counts of shoplifting. Shoplifting causes considerable nuisance to shopkeepers. Moreover, it causes considerable financial loss to tradespeople each year. In addition, the suspect has been convicted of shoplifting on previous occasions and she was in the probationary periods of two earlier shoplifting convictions at the time when she committed this one [sic]. It is apparent from the advisory opinion of the probation and social rehabilitation service (reclasseringsadvies) that the suspect does not want to lend her cooperation to treatment within the framework of probation and social rehabilitation.”
16. The applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad). As relevant to the case before the Court, she complained, relying on Article 6 of the Convention, that the Court of Appeal had failed to weigh her right to attend the hearing in person in the balance. The error had been made by the applicant’s counsel and should not be imputed to the applicant herself. It was moreover not the case that the applicant had failed to inform her counsel of her travel plans: she actually had done so and a copy of the relevant correspondence had been submitted to the Court of Appeal. In that regard that court’s judgment was incomprehensible.
17. The Procurator-General (Procureur-Generaal) to the Supreme Court, in her advisory opinion of 14 March 2017 (ECLI:NL:PHR:2017:312), expressed the view, inter alia, that
“In the light of the importance of the suspect’s right of attendance, guaranteed by Article 6 of the Convention, on which she has expressly and repeatedly relied, the circumstance that the applicant’s counsel has failed to check whether the suspect could be able to attend the hearing on 20 July 2015 does not constitute sufficient ground to reject the request for an adjournment.”
and
“Considering that the facts charged date from December 2013 and October 2014 [respectively] and the single-judge chamber of the Regional Court gave judgment on 30 January 2015, it cannot be seen without further reasoning, which is lacking, why already on 20 July 2015 the interests mentioned by the Court of Appeal should weigh more heavily in the balance than the suspect’s interest in being tried in her presence. I take into account that the present case concerns two charges of shoplifting. It seems to me an exaggeration that the interests of the supermarkets – which incidentally the Court of Appeal did not specify – imperatively require the request for an adjournment to be rejected. The present case is of an entirely different order than cases involving victims of, for example, crimes of violence or of a sexual nature, who have a justified interest not to be left too long in uncertainty about the outcome of the criminal case.”
18. The Supreme Court gave judgment dismissing the applicant’s appeal on points of law on 9 May 2017 (ECLI:HR:2017:826). Its reasoning included the following:
“2.4. The Court of Appeal refused the request for an adjournment, holding that it would have been proper for the suspect to inform her counsel in advance of the dates on which she would not be able to attend the hearing, that it would moreover have been proper for counsel to check with the suspect whether or not she would be prevented from attending the hearing on the planned date, and that society has an interest in an effective and expeditious trial and a proper organisation of judicial proceedings, in which connection the Court of Appeal considered it significant that the case had been adjourned once already because the applicant was abroad. It is therefore implicit that the Court of Appeal has weighed in the balance on the one hand the interest of the requested adjournment of the hearing and the basic interest of the suspect in being able to exercise her right to attend the hearing and on the other hand the interests of an effective and expeditious trial and a proper organisation of judicial proceedings. In so far as the ground of appeal complains that the Court of Appeal failed to make such an assessment, it [is unfounded].
2.5. In so far as the ground of appeal complains that the Court of Appeal’s assessment is incomprehensible, it fails. Considering, among other things, the grounds on which after the first adjournment of the hearing the renewed request for an adjournment was based, the reasoning given by the Court of Appeal constitutes sufficient justification for its rejection.”
B. Relevant domestic law
1. The Code of Criminal Procedure
19. As relevant to the case before the Court, the Code of Criminal Procedure (Wetboek van Strafvordering) provides as follows:
Article 278
“…
3. If the suspect [sc. having failed to appear] has indicated that he wishes to conduct his defence in person and requests an adjournment of the hearing of his case, the [trial court] shall decide on the request for an adjournment. The [trial court] shall grant or refuse the request for an adjournment, after which, in the latter case, it shall continue with the hearing with due regard to Article 280 § 1. …”
Article 279
“1. The suspect who has not appeared at the hearing may have the defence conducted at the hearing by a lawyer (advocaat) who states that he has been expressly authorised to do so. The [trial court] shall agree to this …”
Article 280
“1. If the suspect does not appear at the hearing and the [trial court] does not have occasion to
a. declare the summons null and void …
b. order the suspect to be brought before it …
it shall give an order declaring the suspect in default of appearance and the hearing in the case shall be continued in his absence, unless it has agreed to the defence being conducted in accordance with Article 279 § 2. …”
By virtue of Article 415 these provisions apply equally to appeal proceedings.
2. The 2011 Country-wide Adjournment Protocol
20. A Country-wide Adjournment Protocol (Landelijk aanhoudingenprotocol) was adopted in 2011 by the Country-wide Consultation Structure of Presidents of Criminal Divisions (Landelijk overleg van Voorzitters van de Strafsectoren). As relevant to the case before the Court, it reads as follows:
“Starting point
This Adjournment Protocol gives a –non-exhaustive – enumeration of points of interest and recommendations (hereafter recommendations) relative to the treatment of requests for adjournments. These points of interest and recommendations are intended to promote (formal) legal unity, the expeditious pursuit of proceedings and an optimal use of the capacity available for hearings.
The protocol applies in particular to requests for adjournments made before the hearing. For other such requests, made during the hearing, the protocol should be applied by analogy as far as possible.
Adjournment policy
General points of interest
Before a request for an adjournment is considered, the file number (parketnummer), the name of the suspect, the hearing date and the reason(s) for any adjournment must be known.
A general point of interest is to seek the position of the Public Prosecution Service (openbaar ministerie) on the request for an adjournment before the request for an adjournment is decided on.
If a request for an adjournment is honoured, then in principle the case concerned will be adjourned – in consultation with the Public Prosecution Service – for a set period.
Any rejection of a request for an adjournment must be reasoned, a mere reference to this adjournment protocol not being sufficient.
Points of interest in case of absence of the suspect
In the case of a request for an adjournment by a suspect it needs to be considered whether the reason given by the suspect for his or her absence is sufficiently urgent and credible and whether the suspect’s interest in any adjournment should take precedence over the interest of the proper administration of criminal justice.
Credibility does not flow from the statement by itself: in general some sort of proof will be required (unless the absence can already be accepted based on the information contained in the file). As a rule, therefore, the suspect can be expected to provide the information in support of the request which are considered desirable with a view to the decision to be taken. If a request is insufficiently supported by evidence, or if a request for additional information is not or not sufficiently complied with, then consequences may be attached to that.
The urgency must always be considered. If the absence could have been made known at an earlier time, then that can be understood to indicate a lack of urgency and/or credibility.
…”
3. Relevant domestic case-law
21. In its judgment of 13 October 2015, ECLI: NL:HR:2015:3026, the Supreme Court held as follows:
“2.3. In deciding on a request for an adjournment of the hearing in the case, the trial court must weigh in the balance all the interests concerned, including the interest of the suspect in being able to exercise his right to attend the hearing – which includes the right to have the defence conducted in his absence by a lawyer expressly authorised to do so –, [and] the interest not only of the suspect but also of society in an effective and expeditious trial and the interest of a proper organisation of judicial proceedings …”
COMPLAINT
22. The applicant complains under Article 6 §§ 1 and 3 (c) of the Convention that she had been denied the right to attend the hearing of the Court of Appeal in person.
QUESTION TO THE PARTIES
Was the applicant able to defend herself in person, as required by Article 6 § 3 (c) of the Convention (see Hokkeling v. the Netherlands, no. 30749/12, 14 February 2017)?
Leave a Reply