CASE OF LALMAHOMED v. THE NETHERLANDS
Violation of Art. 6-1+6-3-c
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1962 and lives in Delft. 6. On 7 June 2006 a person was stopped for questioning in connection with an offence against the General Municipality Bye-laws (Algemene Plaatselijke Verordening) of The Hague. He had no proof of his identity on his person. 7. The police officer identified the person as the applicant from a police photograph. The applicant was fined 50 euros (EUR) for not being able to show proof of identity. The fine was not paid, and the applicant was summoned to appear before the District Court judge (kantonrechter) of The Hague to answer a charge of failing to present an official identity document (see paragraph 16 below). 8. On 15 January 2007 the applicant appeared before the District Court judge. He claimed to be innocent, suggesting that the culprit might have been his brother. He stated that he had been acquitted of similar charges several times before. The District Court judge then adjourned the hearing in order to enable the reporting police officer and the applicant to check an identity photograph together. The applicant gave a mobile telephone number so that an appointment could be made. 9. On 9 May 2007 instructions were sent on the public prosecutor's behalf to the police for the applicant to be shown the police identity photograph, a new official record to be made and a photograph of the applicant and if possible his brother also to be attached thereto. 10. On 27 June 2007 a police officer drew up an official record of his various attempts to contact the applicant by telephone; he had been met with a recording of the voice of a man asking callers not to leave any messages because he had insufficient prepaid credit to listen to them and call back. The Government state that the police officer who had first identified the applicant (paragraph 7 above) wished to persist in his statement that he had recognised the accused as the applicant from the photograph in the possession of the police. Clear police photographs of the applicant and his brother, which the Government state show that there was little resemblance between them, were dispatched in addition. 11. The hearing was resumed on 11 October 2007 at 12 noon. The applicant had been summoned in writing but failed to turn up in time to take part. The District Court judge then tried him in absentia, convicted him and sentenced him to a fine of EUR 60 or one day's detention in lieu. Judgment was given orally. The official record of delivery reads as follows: “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 Name: Lalmahomed First names: Goelzeer Born on: 30 October 1962 in District Suriname (Suriname) Address: [etc.] Place of residence: Delft Defended case, [accused] failed to turn up after adjournment QUALIFICATION: Minor offence defined in Article 447e of the Criminal Code (Wetboek van Strafrecht), section 2 of the Compulsory Identification Act (Wet op de identificatieplicht) COMMITTED: on 7 June 2006 DECISION: 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” 12. The applicant lodged an appeal the same day by filling in a form at the registry. He stated his reasons for wishing to appeal as follows: “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.” 13. On 3 December 2007 a single-judge chamber of the Court of Appeal (gerechtshof) of The Hague sitting as President gave a decision refusing the applicant leave to appeal. It contains the following reasoning: “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. 14. The extract from the criminal register as contained in the case file of the single-judge chamber of the Court of Appeal shows that the applicant has been convicted of crimes from his early adulthood until recently. He has also submitted authentic copies of official records of oral delivery of recent summary judgments of the District Court of The Hague. These are dated 19 January 2006, 2 May 2006, 19 June 2006, 8 March 2007 and 8 January 2008. They give no details of the cases other than that they ended in acquittals. 15. In its relevant part, Article 410a of the Code of Criminal Procedure provides as follows: “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. 16. 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). 17. Section 3 of the Criminal Records (Information) Ordinance provides as follows: “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. 18. Article 14 of the International Covenant on Civil and Political Rights of 1966, in its relevant part, provides as follows: “5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.” 19. On 27 July 2010 the Human Rights Committee of the United Nations adopted Views under Article 5 § 4 of the Optional Protocol to the International Covenant on Civil and Political Rights on Communication No. 1797/2008 (Thomas Wilhelmus Henricus Mennen v. The Netherlands). These Views included the following (footnote references omitted): “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.”