EHRM, 22-02-2011, nr. 26036/08

In its relevant part, Article 410a of the Code of Criminal Procedure provides as follows:

This provision entered into force on 1 July 2007.

Section 2 of the Compulsory Identification Act (Wet op de identificatieplicht) requires every person aged fourteen or over to present an official identity document to a police officer upon first demand. Article 447e of the Criminal Code (Wetboek van Strafrecht) makes failure to do so a minor offence punishable by a second-category fine (i.e. not exceeding, at the relevant time, EUR 3,350).

Section 3 of the Criminal Records (Information) Ordinance provides as follows:

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.

The applicant alleged a violation of the right to defend himself in person, as guaranteed by Article 6 §§ 1 and 3 (c) of the Convention, as he had not been offered any opportunity to appear in person before the Court of Appeal. This violation was, in his submission, aggravated by the absence to lodge any further appeal on points of law to the Supreme Court. It was his position that the domestic legislation which made such a state of affairs possible in itself violated the Convention provisions mentioned.

The applicant stated that the form which he had returned to the authorities did not state that leave to appeal could be denied without a hearing. Moreover, prospective appellants usually did not receive any documents from the first-instance case file at the leave-to-appeal stage.

He also pointed, ‘for the sake of completeness’, to the Views of the United Nations Human Rights Committee on Communication No. 1797/2008, the facts of which were, in his submission, very similar to his own case.

Finally, he complained, under Article 6 § 2, that his statement that he had been acquitted on grounds of mistaken identity had been dismissed as implausible before without further examination. He had claimed to have been acquitted on the ground that someone else had misused his identity, but acquittals of minor offences were excluded from the criminal record by virtue of section 3 of the Criminal Records (Information) Ordinance (paragraph 17 above).

The Government submitted that Article 6 of the Convention did not include a right of access to an appellate jurisdiction, unlike Article 2 of Protocol No. 7 which was not in force for the Kingdom of the Netherlands.

They also noted that the Netherlands leave-to-appeal system was far from unique; such systems were found in many countries. They served to prevent large numbers of relatively insignificant cases from clogging up the criminal justice system. Moreover, exceptions to the right of appeal in criminal matters in regard to offences of a minor character were recognised even in Article 2 of Protocol No. 7.

In the alternative, they argued that the applicant had in fact had the benefit of review of his case by a higher tribunal, albeit not in the form of a full re-hearing. The single-judge chamber of the Court of Appeal sitting as President had been presented with the complete case file, including the investigation documents. The applicant had not been prevented from making what legal points he wished, including references to the Convention if he saw fit, and the assessment by the single-judge Chamber had not been subject to any statutory restrictions.

For the remainder, they stated that the applicant was himself to blame for not turning up at the hearing after the proceedings had been adjourned by the District Court judge. The mere fact that the applicant had not attended the second hearing did not suffice to make the conviction unfair.

The Court notes at the outset that Article 6 does not compel Contracting Parties to provide appeals in civil or criminal cases (see Delcourt v. Belgium, 17 January 1970, § 25, Series A no. 11). A right to seek review of conviction and sentence is enshrined in Article 2 § 1 of Protocol No. 7 in terms similar to those of Article 14 § 5 of the International Covenant on Civil and Political Rights.

It is also correct that the Kingdom of the Netherlands has not ratified Protocol No. 7. Consequently the Convention did not impose on the respondent Party the obligation to provide the applicant with the opportunity to appeal.

Even so, a Contracting Party which provides for the possibility of an appeal is required to ensure that persons amenable to the law shall enjoy before the appellate court the fundamental guarantees contained in Article 6 (see the above-cited Delcourt judgment, loc. cit., and De Cubber v. Belgium, 26 October 1984, § 32, Series A no. 86; as more recent examples, Khalfaoui v. France, no. 34791/97, § 37, ECHR 1999-IX; and Kudła v. Poland [GC], no. 30210/96, § 122, ECHR 2000-XI). The right to a fair trial, from which the requirement of the proper administration of justice is to be inferred, applies to all types of criminal offence, from the most straightforward to the most complex. The right to the fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrificed for the sake of expedience (see Delcourt, loc. cit.; more recently, Ryakib Biryukov v. Russia, no. 14810/02, § 37, ECHR 2008-…; and Ramanauskas v. Lithuania [GC], no. 74420/01, § 53, ECHR 2008-…).

However, it is quite possible that leave-to-appeal proceedings may comply with the requirements of Article 6, even though the appellant be not given an opportunity to be heard in person by the appeal court, provided that he or she had at least the opportunity to be heard by a first-instance court (see, in particular, Monnell and Morris v. the United Kingdom, 2 March 1987, § 58, Series A no. 115; more recently, Sibgatullin v. Russia, no. 32165/02, § 35, 23 April 2009). Moreover, as long as the resulting decision is based on a full and thorough evaluation of the relevant factors (Monnell and Morris, § 69), it will escape the scrutiny of the Court; in this connection, the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I; and Cornelis v. the Netherlands (dec.), no. 994/03, ECHR 2004-V (extracts)), as it is not a court of appeal — or, as is sometimes said, a ‘fourth instance’ — from these courts (see, among many other authorities, Kemmache v. France (no. 3), 24 November 1994, § 44, Series A no. 296-C; and Melnychuk v. Ukraine (dec), no. 28743/03, ECHR 2005-IX).

It is also worth noting for the sake of clarity that Protocol No. 7 adds to the guarantees contained in the Convention: it does not detract from them. For present purposes, this means that Article 2 of Protocol No. 7 cannot be construed a contrario as limiting the scope of Article 6 guarantees in appellate proceedings with respect to those Contracting Parties for which Protocol No. 7 is not in force (Ekbatani v. Sweden, 26 May 1988, § 26, Series A no. 134).

Nonetheless, the mere fact that Protocol No. 7 cannot be applied prevents the Court from subjecting the law governing the Netherlands leave-to-appeal system to scrutiny similar in nature and scope to that of the Human Rights Committee.

It remains to be decided whether the requirements of Article 6 of the Convention were met in the present case.

The Court can agree that it was entirely the applicant's responsibility to take all reasonable measures to attend the hearing of the first-instance court. It has not been explained how the applicant came to make the mistake he did.

The case before the Court does not end there even so. The Court cannot overlook the fact that the single-judge chamber of the Court of Appeal sitting as President refused the applicant leave to appeal on the ground that he ‘[did] not consider plausible the applicant's statement that his identity details [were] systematically misused by someone else and that he [had] been acquitted by the courts several times already because of that’. The applicant complains about this under Article 6 § 2. The Court, for its part, considers it more appropriate to deal with the matter here.

The Court reiterates that for the requirements of a fair trial to be satisfied, the accused, and indeed the public, must be able to understand the judgment or decision that has been given; this is a vital safeguard against arbitrariness. As the Court has often noted, the rule of law and the avoidance of arbitrary power are principles underlying the Convention (Taxquet v. Belgium [GC], no. 926/05, § 90, 16 November 2010, with further references). In addition, while courts are not obliged to give a detailed answer to every argument raised, it must be clear from the decision that the essential issues of the case have been addressed (Taxquet, § 91, with further references).

The Court accepts that the extract from the applicant's criminal record contained in the case file and placed before the single-judge chamber of the Court of Appeal showed a number of convictions. However, the various acquittals by the District Court of The Hague (paragraph 14 above), although not mentioned on the extract from the applicant's criminal record and therefore not before the single-judge chamber, span a period overlapping the time of the events complained of.

The applicant claimed that his identity had been misused and that he had been acquitted on that ground several times before. The single-judge chamber of the Court of Appeal dismissed this ground of appeal as implausible as the acquittals did not appear in the extract from the criminal register (paragraph 13 above).

In the Court's view, although the grounds for the acquittals are not stated, they suggest that the applicant's claim that his identity had been misused ought not to have been discounted without further examination.

The acquittals too being part of the official record, the Court considers that the single-judge chamber of the Court of Appeal ought to have been aware of them. As it was, the absence from the case file of this information meant that the denial of leave to appeal in the present case could not be based on a full and thorough evaluation of the relevant factors (see paragraph 37 above).

There has, therefore, been a violation of Article 6 § 1 of the Convention taken together with Article 6 § 3 (c).