(Application no. 26036/08)
22 February 2011
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Lalmahomed v. the Netherlands,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 25 January 2011,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“OFFICIAL RECORD OF DELIVERY OF ORAL JUDGMENT (AANTEKENING MONDELING VONNIS)
Judgment given by District Court judge C. on 11 October 2007 in the case against the accused
First names: Goelzeer
Born on: 30 October 1962 in District Suriname (Suriname)
Place of residence: Delft
Defended case, [accused] failed to turn up after adjournment
Minor offence defined in Article 447e of the Criminal Code (Wetboek van Strafrecht), section 2 of the Compulsory Identification Act (Wet op de identificatieplicht)
on 7 June 2006
Fine of EUR 60,00 or 1 day's detention in lieu
The judge states that for lodging an appeal this case is subject to a special procedure, the so-called leave-to-appeal system.
(signed) the District Court judge”
“I did not attend the hearing because:
I was mistaken about the time. I thought it was at 1 p.m. ...
I would have wished to put forward the following:
I am not the person who committed the offences. I have been acquitted 8 or 9 times already because someone else is misusing my identity.”
“In view of the case file, which includes an extract from the criminal register (justitiële documentatie), the President does not consider plausible the applicant's statement that his identity details are systematically misused by someone else and that he has been acquitted by the courts several times already because of that.
The President is not aware of any other reasons for which the interests of the proper administration of justice require the case to be heard in appeal.”
The judgment of the District Court judge thus became final.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
A. Domestic law
1. The Code of Criminal Procedure (Wetboek van Strafvordering)
“1. If an appeal is possible and has been lodged against a judgment concerning only one or more minor offences (overtredingen) or indictable offences (misdrijven) which, according to the statutory description, carry a sentence of imprisonment not exceeding four years, and no other sentence or measure has been imposed than a fine not exceeding – or, if two or more fines have been imposed in a single judgment, not exceeding a combined maximum – of EUR 500, the appeal lodged shall only be heard and considered if, in the considered opinion of the President, such is required in the interests of the proper administration of justice. ...”
This provision entered into force on 1 July 2007.
2. Failure to present an identity document
3. The Criminal Records (Information) Ordinance (Besluit Justitiële Gegevens)
“In relation to minor offences, the following shall be information for the record:
a. the information mentioned in sections 6 and 7(1) of cases in which the public prosecution service has taken a decision to settle the case, with the exception of a decision to hand out a penal order (strafbeschikking) in which only a fine is imposed to an amount of less than EUR 100 and a decision not to pursue the prosecution, unless the latter decision is made subject to conditions;
b. the information mentioned in sections 6 and 7(1) of cases in which a court has given a decision, whether final or not, in so far as a penal community service order (taakstraf) or a custodial sentence other than in lieu of a sentence of another kind (vrijheidsstraf anders dan vervangende) has been imposed, or a fine of at least EUR 100, and in those cases in which an additional penal measure (bijkomende straf) has been imposed.”
Section 6 of the ordinance sets out the information identifying the convicted person that is to be recorded; section 7(1) sets out the information required to record the criminal act concerned, the decision of the public prosecution service or the court as the case may be and the execution of the sentence or other penal measure.
B. Communication No. 1797/2008 of the Human Rights Committee of the United Nations
“5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”
“Consideration of the merits
8.1 The Human Rights Committee has considered the present communication in the light of all the information made available to it, as provided under article 5, paragraph 1, of the Optional Protocol.
8.2 As to the author's claim that he has not been able to exercise his right to appeal under article 14, paragraph 5, in an effective and meaningful way, since he did not have access to a duly reasoned, written judgment of the trial court and to other documents such as trial transcripts, the Committee notes that the State party confirmed that in the present case no such document had been produced. The Committee notes the State party's submission that the author's counsel was provided with a number of official police reports on the case prior to his application for leave to appeal, without specifying their content and relevance to the verdict. The Committee, however, observes that these reports could not have provided guidance as to the motivation of the first instance court in convicting the author of a criminal offence, nor indication on what particular evidence the court had relied. The Committee recalls its established practice that in appellate proceedings guarantees of a fair trial are to be observed, including the right to have adequate facilities for the preparation of his defence. In the circumstances of the instant case, the Committee does not consider that the reports provided, in the absence of a motivated judgment, a trial transcript or even a list of the evidence used, constituted adequate facilities for the preparation of the author's defence.
8.3 The Committee further notes that, according to the State party, the President of the Court of Appeal denied leave to appeal with the motivation that a hearing of the appeal was not in the interests of the proper administration of justice and that counsel's contentions were not supported in law. The Committee considers this motivation inadequate and insufficient in order to satisfy the conditions of article 14, paragraph 5, of the Covenant, which require a review by a higher tribunal of the conviction and the sentence. Such review, in the frame of a decision regarding a leave to appeal, must be examined on its merits, taking into consideration on the one hand the evidence presented before the first instance judge, and on the other hand the conduct of the trial on the basis of the legal provisions applicable to the case in question.
8.4 Accordingly, in these specific circumstances, the Committee finds that the right to appeal of the author under article 14, paragraph 5, of the Covenant has been violated, due to failure of the State party to provide adequate facilities for the preparation of his defence and conditions for a genuine review of his case by a higher tribunal.
9. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it reveal violation of article 14, paragraph 5, of the Covenant.”
A. The Government's preliminary objection
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...
3. Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”
A. Argument before the Court
1. The applicant
2. The Government
3. The Court's assessment
III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION
“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 22 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall Section Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Judge Ziemele is annexed to this judgment.
CONCURRING OPINION OF JUDGE ZIEMELE
I agree with the reasoning and conclusions of the Chamber as concerns the violation of Article 6 § 1 taken together with Article 6 § 3 (c) of the Convention. I do, however, have some observations to make as concerns the argument raised by the Government and the corresponding reasoning of the Court with respect to Article 2 of Protocol No. 7 (paragraphs 30, 35 and 39).
The case concerns the leave-to-appeal system for minor offences in the Netherlands. The appeal is available in a limited category of cases as defined by Article 410a of the Code of Criminal Procedure. The appeal is not automatic since the article says that: “[...] the appeal lodged shall only be heard and examined if, in the considered opinion of the President, this is required in the interests of the proper administration of justice...” On 27 July 2010 the Human Rights Committee, a treaty-monitoring body of the International Covenant on Civil and Political Rights (ICCPR), adopted Views on an individual complaint brought against the Netherlands in which among other things it stated: “The Committee further notes that, according to the State party, the President of the Court of Appeal denied the leave with the motivation that a hearing of the appeal was not in the interests of the proper administration of justice.... The Committee considers this motivation inadequate and insufficient to satisfy the conditions of Article 14 paragraph 5.”
In the case before the Court leave to appeal was refused based on facts about which the single-judge chamber of the Court of Appeal did not have full information (paragraph 47). Refusal of leave to appeal under such circumstances was seen by the Court to be contrary to fair trial guarantees in the national legal system, which recognises a possibility of appeal, albeit limited. The inadequacy of the case file in the applicant's case gave the Chamber a chance to look at the leave to appeal from the angle of Article 6, even though Article 6 as such does not require the States Parties to provide for appeals in civil and criminal cases. This obligation only emerges in criminal cases under Article 2 of Protocol No. 7, although exceptions are permitted.
The Chamber states that it cannot examine the leave-to-appeal system from the point of view of Protocol No. 7 or subject it to the same scrutiny as the HRC precisely because the Netherlands has not ratified Protocol No. 7 (paragraph 35). I agree with the Chamber that there may be differences in obligations under different treaties the Netherlands has ratified and depending on whether the case is brought to the Human Rights Committee or the European Court of Human Rights (paragraph 39).
My problem goes back to another case in which the Grand Chamber, when asked to explain the rules of interpretation of the Convention in the light of other rules of international law, arrived at the following conclusions: “The Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. [...] In this context, it is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned. It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law...” (Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 85-86, 12 November 2008). It may well be that the Demir and Baykara case represents an example of unfortunate drafting and that nothing further beyond the scope of Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties should be read into it. However, if we were to follow the literal meaning of what the Grand Chamber said, it might suggest that in our case, even though the Netherlands has not ratified Protocol No. 7, since it does provide for a leave-to-appeal system of sorts the Chamber should have assessed whether the leave-to-appeal system as such complied with Article 6. After all, the applicant did complain that the domestic law governing this procedure was contrary to the Convention (paragraphs 26-27).
I believe that the outcome in this case, which differs on the facts from the case examined by the HRC, might not have been any different had we examined the same facts, as the Court's case-law has accepted that leave-to-appeal proceedings may comply with Article 6 requirements (paragraph 37), and the Chamber actually takes a somewhat more substantive look at the Netherlands system (paragraphs 36-37). The problem is really in the wording used by the Chamber in the instant case and the Grand Chamber in the Demir and Baykara case concerning the role of non-ratified treaties. I would like to think that what the Grand Chamber meant when it referred to non-ratified treaties was those treaties that some States may not have ratified but that could still indicate the emergence of a universal or regional customary norm. Where the customary rule turns out to be different from the Convention provision, at least in its original form and intent, that rule may indeed affect the subsequent reading of the Convention provision (see M. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, Martinus Nijhoff Publishers, 2009, p. 433). Should not the Chamber have tried to assess whether there might be a regional custom as concerns procedural guarantees for the leave to appeal in minor offences cases, and whether any effect might be discerned in relation to the scope of Article 6, especially since the Netherlands provides for the possibility of the leave to appeal and in that sense the difference between the obligations under Article 6 of the Convention and Article 14 of the ICCPR is reduced?