CASE OF LALA v. THE NETHERLANDS
Violation of Art. 6-1+6-3-c;Not necessary to examine Art. 6-2;Non-pecuniary damage - finding of violation sufficient
R. Pekkanen
8. Mr Radjinderpersad Roy Lala is a Netherlands national born in 1961 and resident in The Hague. It appears that in proceedings predating, and unrelated to, the events complained of he was sentenced to pay a fine, failing which he was liable to a term of detention (hechtenis). 9. On 19 November 1986, after a trial in absentia, the Hague Regional Court (arrondissementsrechtbank) convicted Mr Lala of the indictable offence (misdrijf) of forgery (valsheid in geschrifte) in that he had concealed an income from work while enjoying social- security benefits. It sentenced him to four weeks’ imprisonment (gevangenisstraf), two weeks of which were suspended for a probationary period of three years on condition, inter alia, that he co-operated in repaying the excess. 10. Mr Lala filed an appeal to the Hague Court of Appeal (gerechtshof). Summoned to the hearing of that court on 7 September 1987, he failed to appear. The official record of the hearing states that Mr Lala was declared to be in default and contains the following passage: "Mr A. G., lawyer in The Hague, is present as counsel of the accused and states that his client will not appear at the hearing because he is still liable to pay a fine, which he is unable to do, and he therefore runs the risk of being arrested immediately to serve the term of detention to which he is liable in the event of failure to pay." 11. In its default judgment of 21 September 1987, the Court of Appeal overturned the judgment of the Regional Court on technical grounds; it again convicted Mr Lala but reduced the sentence to two weeks’ imprisonment. 12. Through his lawyer, the applicant filed an appeal on points of law to the Supreme Court (Hoge Raad). Those of his complaints which are of relevance here may be summarised as follows: firstly, the Court of Appeal had not allowed the applicant’s counsel to speak last, as required by law; and secondly, not only had the Court of Appeal not allowed the applicant’s counsel to conduct the defence, although the latter had signalled the wish to do so by his presence, but the Court of Appeal had also failed to determine whether Mr Lala had had a compelling and legitimate reason not to appear, in which case his counsel should have been entitled to conduct the defence in his client’s absence. 13. In its judgment of 27 September 1988, the Supreme Court dealt with the applicant’s second complaint first in the following terms: "In cases where the accused has not appeared but his counsel is present at the beginning of the court hearing, the court may proceed on the assumption that if counsel for the accused wishes to act as such despite the absence of his client, he will make this known to the court. As the record of the hearing of the Court of Appeal contains nothing from which it might be deduced that counsel made it known to the Court of Appeal that he wished to act in that capacity - neither his own presence nor his explanation of his client’s absence will serve this purpose - it must be assumed that he has failed to do so. Under these circumstances the Court of Appeal was not obliged to allow counsel to act as such in the course of the hearing of the criminal case against his client." As to the first complaint, the Supreme Court held that it appeared from the official record of the hearing that the lawyer had stated the reasons for his client’s absence, but not that he had acted as counsel during his client’s trial. Consequently, that it had to be assumed that he had not so acted. Accordingly, the Court of Appeal had been under no obligation to allow the lawyer to speak last. 14. In general, the accused - if he is not a juvenile (section 500 h of the Code of Criminal Procedure (Wetboek van Strafvordering, CCP)) - is not under an obligation to appear at the hearing. The court must examine of its own motion the validity of the summons (geldigheid der dagvaarding - section 348 CCP). If, in spite of having been properly summoned, the accused does not appear at the hearing, the court will declare him to be in default (verstek verlenen) and proceed with the case in his absence. This is the rule even if the accused gives prior notice of his absence and asks for the hearing to be adjourned (see, inter alia, the judgment of the Supreme Court of 26 February 1985, NJ (Nederlandse Jurisprudentie, Netherlands Law Reports) 1985, 567) or submits his defence in writing (see the judgment of the Supreme Court of 9 October 1990, NJ 1991, 133) and even if the accused cannot be blamed for his absence (see, inter alia, the judgments of the Supreme Court of 20 December 1977, NJ 1978, 226, and 10 October 1989, NJ 1990, 293). The court has the power to order the accused to appear or to be produced before them by the police (section 272 CCP) but it is rarely made use of unless the accused is a juvenile. 15. An accused who has been convicted in his absence by the first-instance court may file an objection (verzet - section 399 (1) CCP); this is an ordinary legal remedy in Netherlands law. Such an objection entitles the accused to a full retrial by the same court (section 403 CCP). An objection may not be filed by an accused who has, or has had, the opportunity to appeal to a higher court with jurisdiction as to both fact and law (hoger beroep - section 399 (2) CCP). This means that the possibility of an objection is limited to those cases in which the law does not admit of such an appeal, i.e. where the sentence is nothing more serious than a small fine or where a regulatory offence (overtreding) has been dealt with in first instance by the Regional Court. It follows from section 339 (1) CCP that no objection may be filed against a default judgment given on appeal. 16. In certain cases the accused may be represented in his absence. In cases which are dealt with at first instance by the Regional Court, this possibility exists if the criminal offence with which the accused is charged does not carry a prison sentence. However, the representative must be a lawyer who must state that he has been specifically empowered to act as such (bepaaldelijk daartoe gevolmachtigd - section 270 CCP). At the hearing the procedural position of the representative is that of the accused himself, i.e. - even if the representative is a lawyer - not that of counsel (see, inter alia, the judgment of the Supreme Court of 25 April 1989, NJ 1990, 91). This means that like the accused, he may be cross-examined by the court and the prosecution and his statements may be used as evidence (see the judgment of the Supreme Court of 13 February 1951, NJ 1951, 476); he may also be assisted by a lawyer - or another lawyer - as counsel. If representation is allowed at first instance before the Regional Court, it is also allowed on appeal before the Court of Appeal (section 415 CCP). 17. The question - which was in dispute among learned writers - whether the defendant, having been declared in default, is entitled to have his defence conducted for him by counsel was decided by the Supreme Court in its judgment of 23 November 1971 (NJ 1972, 293). Although the Procurator General (procureur-generaal) had suggested an answer in the affirmative, the Supreme Court came to the opposite conclusion. It reasoned that, were such an entitlement to be recognised, trial in absentia would take on an adversarial character incompatible with the basic idea of the Code of Criminal Procedure that a defendant who had been declared in default and convicted might always file an objection if he felt that he would not have been convicted had the court heard his defence. The Supreme Court went on to hold that it was true that since the introduction of the Code of Criminal Procedure the right to file an objection had been considerably curtailed, but pointed out that in so doing the legislature had not changed the character of trial in absentia. In conclusion, no section of the Code of Criminal Procedure nor any principle of unwritten law entitled a defendant who had been declared in default to have his defence conducted in his absence by counsel. 18. The Supreme Court has accepted, however, that a trial court may, at its discretion, allow counsel to speak in defence of an accused who has been declared in default. This discretion is quite frequently made use of. The Supreme Court strictly maintains the rule that if in such cases a trial court allows counsel to speak at all, it must allow him all rights available to the defence. It may not impose any limitations as to what subjects he may address (judgment of 19 May 1987, NJ 1988, 217); it may not deny him the right to speak last (judgment of 22 March 1988, NJ 1989, 13); if there are witnesses, counsel must be permitted to cross-examine them (judgment of 28 May 1991, NJ 1991, 729). 19. In principle the Supreme Court has held to its rule (see paragraph 17 above) that a defendant who has been declared in default is not entitled to have his defence conducted by counsel, but since its judgment of 26 February 1980 (NJ 1980, 246) it is its established case-law that there is one exception: in that judgment, it ruled, on the basis of, inter alia, Article 6 (art. 6) of the Convention, that a trial court is obliged to allow counsel to conduct the defence of an accused who has been declared in default if it is of the opinion that "compelling reasons" (klemmende redenen) prevent the accused from appearing at the hearing and it sees no reason to defer its examination of the case. The Supreme Court has accepted the corollary that counsel should in any case, if he so requests, be allowed the opportunity to argue that such reasons exist (judgments of 10 October 1989, NJ 1990, 293, and 19 December 1989, NJ 1990, 407). 20. The Supreme Court, in its judgment of 16 February 1988 (NJ 1988, 794), has held that a "compelling reason" exists not only if it is impossible for the accused to appear, but also if such an important interest is at stake for the accused that - in view of all circumstances that may be considered relevant - he cannot reasonably be expected to appear for trial and may therefore expect either that his trial will be adjourned until some later time when he will be able to attend or that his counsel will be allowed to conduct the defence. The Supreme Court has consistently refused to accept the possibility of the accused being arrested as a "compelling reason" for his absence (see, inter alia, its judgments of 24 November 1988, NJ 1988, 638, of 9 February 1992, DD (Delikt en Delinkwent, Offence and Offender) 93.292, and 4 May 1993, DD 93.396, in addition to its judgment in the instant case). 21. If counsel wishes to act for the defence in the absence of his client, he should expressly ask permission to do so. His presence alone is not sufficient (see, inter alia, the judgments of the Supreme Court of 14 November 1986, NJ 1987, 862; 25 November 1986, NJ 1987, 686; 8 December 1987, NJ 1988, 704; 18 September 1989, NJ 1990, 145; 14 December 1993, DD 94.166). Nor does a request made by counsel for the hearing to be deferred suffice, as was held in, inter alia, the Supreme Court’s judgment of 21 December 1993 (DD 94.176).