AS TO THE ADMISSIBILITY OF
by Angelique POST
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 20 January 2009 as a Chamber composed of:
Ann Power, judges,
and Stanley Naismith, Deputy Section Registrar,
Having regard to the above application lodged with the European Court of Human Rights on 2 May 2008,
Having deliberated, decides as follows:
The applicant, Ms Angelique Post, is a Dutch national who was born in 1983 and lives in Vlijmen. She was represented before the Court by Ms T. Spronken, a lawyer practising in Maastricht.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On an unspecified date in March 2007 the applicant was arrested, held in custody and subsequently in pre-trial detention (voorlopige hechtenis) on suspicion of murder. She was subsequently summoned to appear before the ‘s Hertogenbosch Regional Court (rechtbank) in order to stand trial. The order for her pre-trial detention was duly prolonged, for the last time on 7 May 2007 when the ‘s-Hertogenbosch Regional Court sitting in chambers (raadkamer) extended by 60 days the order for the applicant’s further detention on remand (gevangenhouding).
The applicant’s trial started on 4 July 2007 before the ‘s-Hertogenbosch Regional Court, which decided to adjourn the examination in court until 20 September 2007. On 25 September 2007, the Regional Court fully recommenced its examination as its composition had changed in the meantime. It further decided to adjourn for an unspecified period its examination in court of the applicant’s case.
By letter of 24 October 2007, the Acting President of the ‘s Hertogenbosch Regional Court informed the applicant that, due to a misunderstanding, one member of the three judge section of the Regional Court having considered the applicant’s case on 25 September 2007 was a judge in training, assigned temporarily to the ‘s-Hertogenbosch Regional Court and who apparently had not yet been officially appointed and sworn in as a deputy judge (rechter-plaatsvervanger) before taking up her position in ‘s-Hertogenbosch. The applicant was further informed that a fresh hearing would be scheduled as soon as practically possible.
On 25 October 2007, the applicant’s lawyer filed a request to lift the applicant’s pre-trial detention with immediate effect.
On 30 October 2007, the ‘s-Hertogenbosch Regional Court sitting in chambers lifted the order for the applicant’s pre-trial detention and ordered her immediate release. It considered that, although it lacked competence to pronounce the nullity of the trial proceedings conducted on 25 September 2007 and could only determine the validity of the legal basis for the applicant’s ongoing pre-trial detention, it was rather obvious that the competent forum would pronounce that nullity. In this light, it concluded that article 66 § 2 of the Code of Criminal Procedure found no application and that the delay referred to in article 282 § 2 of the Code of Criminal Procedure (Wetboek van Strafvordering; “CCP”) had expired. As this thus risked giving rise to uncertainty about the applicant’s legal position, the Regional Court – for the sake of clarity – lifted the order for the applicant’s pre-trial detention and ordered her immediate release. On 31 October 2007, the public prosecutor filed an appeal against the decision to lift the pre-trial order.
On 6 November 2007, the ‘s-Hertogenbosch Court of Appeal (gerechtshof) accepted the prosecutor’s appeal, quashed the decision of 30 October 2007 and rejected a request filed during the hearing before the Court of Appeal to lift the applicant’s pre-trial detention. It rejected the applicant’s argument that, pursuant to article 282 of the CCP, her pre-trial detention should be regarded as having become unlawful on 4 October 2007 as the court hearing of 25 September 2007 was ipso iure null and void. The Court of Appeal considered that such ipso iure nullity would only arise if that hearing had been held before a non-judicial body, which was not the situation in the case at hand. The hearing of 25 September 2007 was one in a series of hearings before and decisions taken by the ‘s-Hertogenbosch Regional Court in the applicant’s case under the provisions of the CCP. This was not altered by the fact that the hearing of 25 September 2007 was flawed as one member of the three judge section of the Regional Court did not have the status of judge. As the hearing of 25 September 2007 was not ipso iure null and void, it could not be concluded that the legal basis for the applicant’s pre-trial detention had become extinct three months after 4 July 2007. This legal basis remained article 66 § 2 of the CCP. The Court of Appeal acknowledged that the composition of the three-judge section at issue was very seriously flawed and that this raised the question whether this flaw had a bearing on the legal basis for the applicant’s pre-trial detention. After an examination of the statutory system concerning the rules on pre-trial detention, it concluded that there remained a legal basis for the applicant’s pre-trial detention, namely article 282 § 2 of the CCP, given that three months had not yet elapsed since 25 September 2007. It further decided, after having noted that it was intended to hold a fresh trial hearing on 7 November 2007 before the Regional Court, that the applicant’s interest in being released from pre-trial detention was outweighed by general interest considerations. No further appeal lay against this decision, of which the applicant was notified on 6 November 2007.
B. Relevant domestic law and practice
A pre-trial detention order issued by the Regional Court remains in force until 60 days after the final judgment (einduitspraak) at that instance has been given (article 66 § 2 of the CCP”). For the purposes of limiting the application and duration of pre-trial detention, article 282 of the CCP regulates the duration of suspensions of trial proceedings. This provision reads in its relevant part:
“1. If the defendant is being held in pre-trial detention, the following paragraphs shall apply [in relation to suspensions of trial proceedings].
2. If the Regional Court suspends the examination in court (onderzoek op de terechtzitting) for a specific period, the period of suspension shall as a rule not exceed one month. However, if there are compelling grounds, it may set a longer period but in no case longer than three months.
3. If the Regional Court suspends examination in court sine die, it shall determine by analogous application of the second paragraph a maximum period within which the examination in court must be resumed....”
An overview with further details of the relevant domestic law and practice in respect of pre-trial detention can be found in the Court’s decision on admissibility in the case of Close v. the Netherlands (no. 9298/02, 25 May 2004).
The applicant complained under Article 5 §§ 1 (c), 3 and 4 of the Convention that, given the provisions of article 282 of the CCP, she was unlawfully deprived of her liberty as from 4 October 2007.
PROCEDURE BEFORE THE COURT
The application was lodged with the Court by facsimile on 2 May 2008 in the form of an introductory letter dated 29 September 2000 signed and sent by the applicant’s representative Ms Spronken.
By letter of 6 May 2008, the applicant’s representative was asked to complete the application by returning the forms prescribed under the Rules of Court, which were appended to the letter, together with copies of relevant supporting documents. The last paragraph of this letter, set in bold characters, reads as follows:
“You must send the duly completed application form and any necessary supplementary documents to the Court as soon as possible and at the latest within six months of the date of the present letter. No extension of this period is possible. If the application form and all the relevant documents are not sent within the above period, the file opened will be destroyed without further warning.”
On 13 November 2008, the Court received a completed application form signed by the applicant’s representative and copies of supporting documents. These submissions did not include an authority for representation. In the accompanying letter dated 5 November 2008, the applicant’s representative informed the Court that she did not yet have the applicant’s authority for representation and that she would transmit this authority to the Court as soon as she received it.
To date, this authority form has not been received by the Court.
Rule 36 of the Rules of Court reads, in the relevant part:
“1. Persons, non-governmental organisations or groups of individuals may initially present applications under Article 34 of the Convention themselves or through a representative. ...
4. (a) The representative of the applicant shall be an advocate authorised to practise in any of the Contracting Parties and resident in the territory of one of them, or any other person approved by the President of the Chamber.”
Rule 45 § 3 of the Rules of Court, in so far as relevant, reads:
“1. Any application made under Articles 33 or 34 of the Convention shall be submitted in writing and shall be signed by the applicant or by the applicant’s representative. ...
3. Where applicants are represented in accordance with Rule 36, a power of attorney or written authority to act shall be supplied by their representative or representatives.”
The applicant has never been in contact with the Court directly and introduced her application through her representative Ms Spronken. Where applicants choose to be represented by a lawyer under Rule 36 of the Rules of Court, rather than to introduce their application themselves, it is a requirement, under Rule 45 § 3 of the Rules of Court, that a power of attorney or written authority to act shall be supplied by their representatives. However, the date on which a form of authority to represent an applicant in the proceedings before it has been submitted is not decisive for the purposes of assessment of the compliance with the six-month requirement under Article 35 § 1 of the Convention (see Fitzmartin and Others v. the United Kingdom (dec.), 34953/97, 21 January 2003).
The Court notes that the application was lodged on 2 May 2008 in the form of an introductory letter signed and sent by the applicant’s representative who stated that she was acting on the applicant’s behalf. The applicant’s representative did not claim that she herself was a victim of a breach of the Convention but that she represented the applicant in the proceedings before the Court. The Court considers that this introductory letter of 2 May 2008 contained sufficient information to interrupt the running of the six-month time-limit set out in Article 35 § 1. Accordingly, the Court accepts the introduction date as being that of the introductory letter of 2 May 2008. The case was therefore introduced within six months of the final decision, namely the ruling given by the Court of Appeal on 6 November 2007.
The Court further notes that, by letter of 6 May 2008, the applicant’s representative was duly informed about the need to supply, inter alia, a duly completed and signed form of authority in respect of the applicant for whom she purported to act and to do so within a non-extendible period of six months to be counted from 6 May 2008.
The Court lastly notes that the applicant’s submissions of 5 November 2008 consisted of a duly completed application form signed by the applicant’s representative and of copies of supporting documents. However, these submissions did not include an authority for the applicant’s representation and, when the time-limit referred to in the Court’s letter of 6 May 2008 expired, no such authority had been received by the Court.
The Court considers it essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim(s) within the meaning of Article 34 of the Convention on whose behalf they purport to act. As the case file contains no document in which the applicant herself has indicated that she wishes Ms Spronken to file an application with the Court on her behalf and in the absence of any indication whatsoever whether and, if so, why in the present case it would have been impossible for the applicant or her representative to respect this very simple yet crucial procedural requirement to submit a power of attorney within the six months’ period fixed for this purpose, the Court cannot but conclude that the case must be rejected for want of an “applicant” for the purposes of Article 34 of the Convention. Consequently, in the circumstances of the case the application must be rejected for being incompatible ratione personae, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Stanley Naismith Josep Casadevall
Deputy Registrar President