CASE OF ZOON v. THE NETHERLANDS
No violation of Art. 6-1 and 6-3-b
Georg Ress
6. The applicant used to work as a general practitioner in Dirksland, the Netherlands. 7. On 9 September 1993 preliminary judicial investigations were initiated into allegations of forgery and fraud perpetrated by the applicant. 8. In the course of these investigations the applicant stated on his own initiative that in March 1993 he had performed euthanasia on, and at the request of, one of his patients. However, he had stated to the municipal coroner (gemeentelijk lijkschouwer) that the patient had died from natural causes. 9. The applicant was summoned to appear before the Regional Court (Arrondissementsrechtbank) of Rotterdam on the following charges: (1) principally: murder; alternatively: taking another person's life at that person's request; (2) in his capacity of physician, falsifying a death certificate as regards the cause of a person's death; (3) falsifying prescriptions; (4) forging and presenting prescriptions for the acquisition of an opiate. 10. On 30 August 1994 the applicant lodged an objection (bezwaarschrift) against the summons (dagvaarding) with the Regional Court. 11. Following a hearing in camera on 2 December 1994, the Regional Court dismissed the objection. 12. On 27 April 1995 a public hearing took place before the Regional Court, during which the case was considered on the merits. Both the applicant and his defence counsel, two lawyers from the same law firm in Rotterdam, were present. In their pleadings, counsel for the applicant raised the following points: (a) the indictment was invalid (it being argued that certain points were not set out in sufficient detail); (b) the prosecution case was inadmissible (the argument being that the use of far-reaching measures such as a house search and pre-trial detention was excessive and unlawful); (c) the obligation incumbent on physicians to report cases of euthanasia themselves, thus exposing themselves to the risk of criminal punishment, ran counter to Article 6 of the Convention; (d) the evidence had been obtained unlawfully; (e) the prescriptions had only been forged in part, not in their entirety; (f) the applicant had confessed to euthanasia, which precluded a conviction of the more serious crime of murder; (g) there was a defence of force majeure in respect of the charges of euthanasia and forging the death certificate; (h) the applicant had not acted culpably; (i) in the event of a conviction, no sentence should be imposed as the applicant had suffered enough already as a result of the proceedings (which had destroyed his reputation and his practice) and further punishment would serve no legitimate purpose. 13. On 11 May 1995 the Regional Court gave judgment in public and in the presence of the applicant's defence counsel. It is a matter of dispute whether the grounds of the judgment were read out in addition to the operative provisions or only the operative provisions. According to the Government, the President of the Regional Court, in accordance with the usual practice, read out the considerations relating to the validity of the summons, the main considerations underlying the dismissal of the defence plea concerning the admissibility of the prosecution, a summary of considerations relating to the evidence, and considerations as to whether the applicant was criminally liable. The applicant submitted, however, that his lawyers only heard the President state that he was acquitted of the principal charge under (1) and of the charge under (4), that the defence in respect of the alternative charge under (1) was rejected, that the applicant was found guilty of the alternative charge under (1) and the charges under (2) and (3), and that the seriousness of these offences warranted a suspended term of imprisonment of six months and a fine of 50,000 Netherlands guilders (NLG). 14. As to a written copy of the judgment, the Government submitted that they had ascertained that a signed version of the judgment in abridged form (kop-staart vonnis) was available when judgment was pronounced on 11 May 1995 and that it was the policy of the Regional Court of Rotterdam at the relevant time to provide a copy of the judgment in abridged form if this was requested in writing. According to the applicant, however, his lawyers telephoned the Regional Court's registry before the expiry of the period within which an appeal could be filed and were told that no judgment was available. Furthermore, the applicant's lawyers were not aware that the Regional Court had a policy of issuing copies of judgments only upon a request in writing. 15. The applicant did not appeal. The public prosecutor lodged an appeal but withdrew it on 2 June 1995. 16. The judgment in abridged form, a copy of which was submitted by the Government, contains, inter alia, the Regional Court's considerations as to the validity of the summons and as to the admissibility of the prosecution. As regards the latter, the Regional Court rejected the applicant's argument that the prosecution in respect of the charges of murder and euthanasia was inadmissible. It considered that since section 10 of the Act on the Disposal of the Dead (Wet op de Lijkbezorging) had not yet entered into force at the time of the impugned act, there had not existed a legal obligation for the applicant to report the fact that he had committed an offence. 17. The judgment in abridged form further lists those offences of which the Regional Court acquitted the applicant and those of which it found him guilty. In respect of the items of evidence on which the Regional Court based its verdict, the judgment in abridged form only states “P.M.”, for pro memoria, meaning that a detailed enumeration of the items of evidence would be produced at a later date, if necessary. The Regional Court proceeded to deal with, and reject, the applicant's subsidiary pleadings to the effect that if the prosecution was admissible, then the evidence had been obtained unlawfully. Subsequently, the Regional Court examined the criminal liability of the applicant and determined the sentence to be imposed on him, rejecting the applicant's claim that he had acted legitimately in a situation of force majeure. The judgment in abridged form concludes with a sentence stating that the judgment was read out in public on 11 May 1995. 18. According to Article 359 § 1 of the Code of Criminal Procedure (Wetboek van Strafvordering – “CCP”), a judgment must detail the items of evidence on which a conviction is based. However, since – pursuant to Article 345 § 3 CCP – the court has to deliver the judgment within fourteen days following the closure of the trial, it was not unusual at the relevant time that initially a judgment in abridged form would be drafted in cases where the accused was convicted. Such a judgment did not give an account of the items of evidence on which the conviction was based. A complete version of the judgment was not prepared unless the convicted person or the public prosecutor lodged an appeal against the judgment. In that case the items of evidence were detailed in the judgment and the case file, including the complete judgment, was transmitted to the appellate court. 19. Where a judgment in abridged form was prepared, compliance with Article 365 § 1 CCP, which required that a (full) judgment be signed within forty-eight hours after its delivery by the judges who examined the case, was precluded. However, the judgment in abridged form would be signed in that form and, as soon as this had been done, the accused or his counsel would be able to inspect it, as well as the official records of the hearings, at the registry of the trial court, as was prescribed by Article 365 § 3 CCP for full judgments. 20. It appears that at the relevant time the Regional Court of Rotterdam had a practice of providing the defence with a copy of the judgment in abridged form only if a request was made in writing. 21. According to Article 404 taken in conjunction with Article 408 § 1 (a) CCP, an appeal against a judgment of the regional court had to be lodged with the court of appeal (Gerechtshof) within fourteen days following the day on which the judgment was read out in public. Once lodged, the appeal could be withdrawn by the person who instigated it, at the latest just prior to the start of the hearing on appeal (Article 453 § 1 CCP). 22. The Supreme Court (Hoge Raad) has held that an appeal filed outside the fourteen-day period is inadmissible even if the accused or his counsel have, through no fault of their own, been unable to inspect the judgment of the regional court within the fourteen-day period (judgment of 11 November 1986, Nederlandse Jurisprudentie (NJ) 1987, no. 568). 23. When the court of appeal examines the case, it should have before it a complete version of the judgment of the lower court. If this is not the case, the judgment is null and void and should be quashed (vernietigd) by the court of appeal on formal grounds pursuant to Article 359 §§ 1 and 10 CCP. However, this does not mean that the court of appeal must refer the case back to the regional court: Article 423 § 2 CCP provides that a case should be referred back to a regional court only if the judgment is quashed and the regional court has not decided on the merits of the case. This provision thus embodies the principle of the right to be tried at two levels by courts competent to examine the facts. 24. The proceedings before the court of appeal offer a full new hearing since most of the provisions of the CCP which apply to the proceedings before the lower court also apply on appeal (Article 415 CCP). The accused who has lodged the appeal may at his discretion submit his objections and possible additional objections in writing, both before and during the hearing. He may also submit additional objections orally in the course of the hearing until the formal closure of the appeal court's examination (Articles 416 and 311 §§ 1 and 4 CCP). 25. In a case which led to a judgment of the Supreme Court on 17 September 1990, the accused complained before the court of appeal that the judgment of the first-instance court did not detail the items of evidence. The court of appeal subsequently quashed the judgment because the items of evidence were not detailed but it did not refer the case back to the regional court, since the latter court had already decided on the merits of the case (see paragraph 23 above). In cassation the applicant invoked Article 6 § 3 of the Convention. The Advocate-General (Advocaat-Generaal) at the Supreme Court submitted an advisory opinion (conclusie) to the effect that the fact that the judgment of the first-instance court had not detailed the items of evidence did not prevent the accused from conducting his defence on appeal since, firstly, an accused does not have to defend himself against the judgment by which he was convicted but against the accusation levelled against him by the public prosecution department; and secondly, the court of appeal examines the case independently on the basis of the trial and the summons and not on the basis of the judgment of the first-instance court. The Supreme Court eventually dismissed the appeal and, for its reasoning, referred to the advisory opinion of the Advocate-General (NJ 1991, no. 12). 26. When only the accused has filed an appeal, the court of appeal may impose a sentence heavier than that imposed at first instance if that decision is reached unanimously (Article 424 § 2 CCP). Unanimity is not required if the public prosecutor has also filed an appeal. If it is found that the public prosecutor has filed an appeal with the sole aim of preventing the unanimity requirement in Article 424 § 2 from applying, his appeal may be declared inadmissible (see the judgments of the Supreme Court of 22 June 1982, NJ 1983, no. 73, and 29 March 1983, NJ 1983, no. 482). 27. The practice described in paragraph 18 above was subsequently codified in Articles 138b and 365a CCP, which entered into force on 1 November 1996, after the events complained of. If no appeal is lodged, a complete judgment will be made available upon request of the prosecutor or the accused or his lawyer within three months after delivery of the judgment, unless this request is devoid of reasonable interest (Article 365c §§ 1 and 2 CCP, which also entered into force on 1 November 1996).