VAN VELZEN v. THE NETHERLANDS
Inadmissible
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra
1. The applicant, Mr Franciscus van Velzen, is a Netherlands national, who was born in 1966 and lives in Delft. He is represented before the Court by Mr J.M. Lintz, a lawyer practising in The Hague. 2. The relevant facts, as submitted by the applicant and apparent from information submitted by the Government at the request of the Judge Rapporteur (Rule 49 § 3 (a) of the Rules of Court), may be summarised as follows. 3. The applicant lives on a caravan site. He is not married. 4. On 3 March 2008 a post office official handed a summons addressed to the applicant to another inhabitant of the caravan site, one Ms D. The official record of delivery states that the summons was handed to “Ms D., wife (echtgenote)”. 5. Ms D. lives together with the applicant’s brother, on the same caravan site but in a different caravan. Her postal address, which applies to the site as a whole, is the same as the applicant’s. 6. On 23 April 2008 the limited jurisdiction judge (kantonrechter) of Delft (a local dependency of the Regional Court (rechtbank) of The Hague whose jurisdiction includes minor offences (overtredingen) and small claims) convicted the applicant in absentia of “being the person in whose name a motor vehicle is registered for which a vehicle registration certificate has been issued, failing to subscribe to and maintain in force insurance in accordance with the Motor Vehicles (Third Party Liability Insurance) Act” (als degene aan wie het kenteken is opgegeven voor een motorrijtuig waarvoor een kentekenbewijs is afgegeven niet een verzekering overeenkomstig de Wet aansprakelijkheidsverzekering motorrijtuigen sluiten en in stand houden). The applicant was ordered to pay a fine of 380 euros (EUR) or undergo seven days’ detention in lieu. 7. The applicant appealed against the judgment on 28 May 2009 by setting out his grounds of appeal on a pre-printed form. The form states the following: “I did not attend the hearing because: [in handwriting] I did not know that the case was to be heard. I would have liked to make the following submission: [in handwriting] I do not even know which case it is.” 8. On 16 October 2009 the president of the Court of Appeal (gerechtshof) of The Hague gave a decision refusing the applicant leave to appeal. The decision was in the following terms: “The President notes that the appellant did not appear at the first-instance hearing, although the summons was handed to a member of his household on 3 March 2008. The mere fact that the appellant has not made use of the opportunity offered for stating his defence does not justify a hearing on appeal. There is no appearance of any special circumstances that might justify offering him this possibility. The President further notes that the appellant essentially wants nothing more than a rehearing of the case. An examination of the case based on the case file has not led the President to expect that a rehearing will lead to any other ruling than that given at first instance. 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.” 9. The judgment here in issue has not been executed; the Government have informed the Court that it will not be, pending the Court’s decision on the present application. 10. In its relevant part, Article 278 of the Code of Criminal Procedure provides as follows: “1. The Regional Court shall determine whether the summons was validly delivered to the suspect who has failed to appear. If it is apparent that it has not been validly delivered, it shall declare the summons null and void. ...” 11. In its relevant parts, Article 588 of the Code of Criminal Procedure provides as follows: “1. Delivery [sc. of a judicial notification] shall take place: a. to the person who has been lawfully deprived of his liberty in the Netherlands in connection with the criminal proceedings to which the judicial notification relates and to the person who has been otherwise lawfully deprived of his liberty in the Netherlands in other cases determined by or pursuant to delegated legislation: in person; b. to all others: in person or, if service otherwise than in person is allowed and the notification is presented in the Netherlands, i. at the address where the addressee (geadresseerde) is registered as resident in the Personal Records Database (basisadministratie persoonsgegevens), or as the case may be, ii. if the addressee is not registered as a resident in the Personal Records Database, at the permanent or temporary domicile (woon- of verblijfplaats) of the addressee, or as the case may be, iii. if the addressee is not registered as a resident, to the Registrar of the Regional Court before which or within whose jurisdiction the case will be heard or was last heard. 2. ... 3. If, in the situation referred to in paragraph 1, sub-paragraph b, under i or ii, a. the addressee is not found, delivery shall be to any person present at that address who declares that he is prepared to forward the document to the addressee without delay; b. no one is found, delivery shall be to the addressee or a person authorised by the addressee [to take delivery of it] at the place mentioned in a written message that shall be left at the address mentioned in the notification. Delivery to a person so authorised by the addressee shall count as service in person; c. no delivery has proved possible, the notification shall be returned to the authority that sent it. If it is found that the addressee was, on the day of attempted delivery and at least five days thereafter, registered in the Personal Records Database as resident at the address mentioned in the notification, the notification shall then be delivered to the Registrar of the Regional Court before which or within whose jurisdiction the case will be heard or was last heard. The Public Prosecution Service shall then send a copy of the notification to that address without delay, which act shall be noted in the official record of delivery ...” 12. 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 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. ...”