CASE OF HOKKELING v. THE NETHERLANDS
Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence in person;Defence through legal assistance);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Egbert Myjer;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
6. The applicant was born in 1947. At the time when the application was submitted, the applicant was serving a sentence of imprisonment in Oslo, Norway. 7. In December 2004 a group of individuals transported a considerable quantity (possibly three tons) of hashish (which in the Netherlands is a banned substance) from one hiding-place to another. It appears that the possessors of the hashish later found some of it missing and came to the conclusion that it had been removed by one E. In late January 2005 E.’s body was found dumped at a building site, with the hands tied behind the back, two ribs broken and holes in the knees and kneecaps consistent with the deliberate infliction of injury by means of an electric drill. 8. The applicant was arrested on 11 April 2006 on suspicion of having been criminally involved in the above events and taken into pre-trial detention. Throughout the ensuing criminal proceedings he claimed to be innocent. 9. The applicant was charged with causing E. grievous bodily harm resulting in his death, the abduction of E. resulting in his death, threatening grievous bodily harm against E., and importing, transporting and possessing three tons of hashish. His trial opened on 17 July 2006 before the Alkmaar Regional Court (rechtbank). 10. The prosecution sought an eight-year prison sentence. 11. After adjournments made necessary by the need for further investigative measures, the Regional Court gave judgment on 15 May 2007. It did not find it established that the abduction had resulted in E.’s death and acquitted the applicant of that aggravating circumstance, but convicted the applicant of the remainder of the crimes charged, finding him to have committed them together with others. It sentenced the applicant to four years and six months’ imprisonment. 12. Both the applicant and the prosecution appealed. 13. The appeal hearing opened on 31 October 2007 before the Amsterdam Court of Appeal (gerechtshof). Finding that the file was incomplete, the Court of Appeal adjourned the hearing sine die in view of its busy hearing schedule. Further adjournments were ordered, on the same ground, on 18 January 2008 and 4 April 2008. On 27 June 2008 an adjournment was ordered on the ground that no suitable hearing room was available. 14. The Court of Appeal held a scheduling hearing (regiezitting) on 23 September 2008. Two more adjournments were ordered, one until 2 December 2008 for the purpose of securing the attendance of further witnesses and one until 24 February 2009 to allow the applicant’s new counsel, who had replaced the lawyer who had conducted the applicant’s defence at first instance, to acquaint himself with the case file. At the hearing of 24 February 2009 it was decided that the hearing on the merits of the case would be held on 18, 19 and 27 May 2009. 15. On 26 March 2009 the applicant was released, having served two-thirds of the sentence handed to him by the Regional Court. 16. The hearing was resumed on 18 May 2009. The applicant was in attendance. Since further witnesses were to be heard by the investigating judge at the request of the defence, a further adjournment was ordered until 27, 29 and 30 October 2009; the applicant and his counsel were cautioned to be present without further notice. 17. On 4 October 2009 the applicant was arrested in Norway on suspicion of having imported “a considerable quantity of narcotic substances”. The applicant’s counsel informed the Court of Appeal of this development by fax on 13 October 2009. 18. The hearing was again resumed on 27 October 2009. The applicant’s counsel stated that the applicant was in pre-trial detention in Norway. He asked for the applicant to be brought to the Netherlands a few days before the following hearing so as to consult with him. 19. On 29 March 2010 the applicant received a summons at his detention address in Norway to appear at the hearing of the Amsterdam Court of Appeal to be held on 1 and 4 June. 20. On 10 May 2010 the applicant’s counsel sent an e-mail to the Advocate General (advocaat-generaal) to the Court of Appeal, with a copy to the president of the criminal division, restating his request for the applicant to be brought to the Netherlands in advance of the hearing of the Court of Appeal and announced his intention to oppose resumption of the hearing if this were not done. 21. On 25 May 2010 the applicant’s counsel informed the Court of Appeal by e-mail of his intention to seek an adjournment of the coming hearing. On the same day the president of the criminal division warned the applicant’s counsel and the Advocate General by e-mail, without prejudging any decision that might be taken, of the possibility that the merits of the case would be addressed. 22. The hearing was resumed on 1 June 2010. The official record of the hearing makes mention of the applicant’s place of detention, namely Oslo Prison (Oslo Fengsel), Oslo, Norway. 23. The applicant’s counsel asked for the hearing to be adjourned until the applicant could be present in person. He suggested that this might be done pursuant to an extradition request; by way of transfer under the European Convention on Mutual Assistance in Criminal Matters, which possibility in his submission had not been adequately explored; and, following the outcome of the criminal proceedings in Norway, by allowing the applicant either to return of his own accord or to serve any sentence handed to him by the Norwegian courts in the Netherlands as the case might be. 24. The Court of Appeal declined to adjourn its hearing until the applicant could be present. Its reasoning, reflected in the official record of its hearing, was as follows: “If a request is made to adjourn the hearing on the merits all relevant interests should be weighed, including the right of the accused to be present, the interest of not only the accused but also of society in a speedy determination of the charges and the interest of a proper organisation of the judicial system. In so doing, the court of Appeal will base itself on the following facts and circumstances: - The present case began in 2005. The applicant was arrested on 11 April 2006 and sentenced to four years and six months’ imprisonment by the Alkmaar Regional Court on 15 May 2007. The [applicant] took part in the proceedings. The [applicant] appealed against this judgment and the first appeal hearing took place on 31 October 2007. - The [applicant] was released on 26 March 2009. - It was not possible to hold the hearing on the merits on 18, 19 and 27 May 2009 as planned because the investigating judge had not finished hearing witnesses. - On 13 October 2009 the applicant’s counsel transmitted the information that the [applicant] had been arrested in Norway on 4 October 2009 on suspicion of having violated Article 192 § 3 of the Norwegian Criminal Code, to wit, unlawfully importing a large quantity of narcotic substances. The [applicant] was to remain in pre-trial detention until at least 4 November 2009. The hearing on the merits could therefore not be held on 27, 29 and 30 2009 October as planned and was moved to 1 and 4 June 2010. - The [applicant] has therefore brought it on himself that he cannot now attend the appeal hearing independently (dat hij niet zelfstandig tegenwoordig kan zijn bij zijn berechting in hoger beroep). - The [applicant] has indicated, following his arrest, that he wishes to attend the appeal hearing. - The Advocate General has, on 15 October 2009, drafted a request for mutual assistance, in consultation with the Centre for International Legal Assistance North West and Central Netherlands (Internationaal Rechtshulp Centrum Noordwest en Midden Nederland) (...) requesting the Norwegian authorities to transfer the [applicant] to the Netherlands temporarily under Article 11 of the European Convention on Mutual Assistance in Criminal Matters. - The Norwegian public prosecutor replied on 16 October 2009 that the [applicant]’s temporary transfer was not possible because Norway had entered a reservation relevant to Article 11 [of the European Convention on Mutual Assistance in Criminal Matters]. The request for temporary transfer would have to be made via the Ministry of Justice. - The Advocate General has, on 2 March 2010, prepared a draft request for mutual legal assistance setting out the request to the Norwegian authorities to transfer the [applicant] to the Netherlands under Article 11 [of the European Convention on Mutual Assistance in Criminal Matters]. - On 18 March 2010 the head of the Department for International Legal Assistance in Criminal Matters (afdeling Internationale Rechtshulp in Strafzaken) of the Ministry of Justice informed the Advocate General that Article 11 [of the European Convention on Mutual Assistance in Criminal Matters] provides only for the possibility to transfer temporarily as witnesses or for purposes of confrontation. Temporary transfer of an accused for trial requires extradition or surrender procedure (uitleverings- of overleveringsprocedure) to be followed, in which case there must be a valid Netherlands title for detention. - The Advocate General prepared a draft extradition request on 27 April 2010. - On 6 May 2010 the head of the Department for International Legal Assistance in Criminal Matters informed the Advocate General that it was not possible to request the [applicant]’s extradition from Norway because there was no Netherlands title for his detention. This means that one of the documents referred to in Article 12 § 2 (a) is missing. The ultimate conclusion is that since neither extradition nor temporary transfer within the meaning of mutual assistance in criminal matters (kleine rechtshulp) is possible, there is no possibility to allow the [applicant] to attend the hearing in his criminal case on 1 and 4 June 2010. - Counsel and [applicant] have had sufficient time to prepare the defence before the hearing on the merits [planned for] 18, 19 and 27 May 2009, which hearing was postponed until 27, 29 and 30 October 2009 only shortly before [it was due to begin]. Counsel has also had the opportunity to discuss the case with the [applicant] and prepare for the hearing before those new hearing dates. It does not make any difference that the [applicant] was arrested in Norway on 4 October 2009. Moreover, in March 2010 counsel visited the [applicant] in Norway to prepare today’s hearing, it being worth noting in this connection that it is open to [counsel] in consultation with the [applicant] himself to make use of [this possibility] more frequently, the Norwegian authorities having imposed no restrictions in this respect. - Counsel has been explicitly authorised (uitdrukkelijk gemachtigd) to defend the [applicant] at the hearing. The Court of Appeal considers, in these circumstances, that in weighing the various interests against each other the general interest, including due process (het belang van een behoorlijke rechtspleging) and the interest of bringing the case to a close within a reasonable time must now prevail over the [applicant]’s right to take part in the hearing in person. ...” 25. The hearing was continued on 4 June 2010. The applicant’s counsel conducted the defence in the applicant’s absence. 26. The Court of Appeal gave judgment on 18 June 2010. It convicted the applicant of complicity in causing grievous bodily harm resulting in death, abduction and transporting and possessing an unspecified quantity of hashish. It sentenced him to eight years’ imprisonment. 27. The applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad). He complained of a violation of his right to attend the hearing in person as a result of the Court of Appeal’s refusal to order an adjournment until he could be present. His arguments were the following: Firstly, the starting point should be that an accused had the right to attend the hearing in his case in person; as long as he did not waive that right, he was in principle entitled to an adjournment if he was prevented from so doing. This starting point was not reflected in the Court of Appeal’s reasoning. Secondly, it did not appear that the Court of Appeal had considered the seriousness of the charges. Considering the charges in issue, and the sentence imposed on appeal (which added years to the sentence imposed at first instance), the Court of Appeal’s decision was misconceived. Thirdly, the presence of counsel and the length of the proceedings, relied on by the Court of Appeal, were irrelevant. The length of proceedings in particular would be imputable to the suspect if an adjournment was requested by the defence. Fourthly, the Court of Appeal had failed to respond to the suggestion made by the defence to await the outcome of the proceedings in Norway, after which the applicant could return of his own accord or the execution of any Norwegian sentence could be taken care of in the Netherlands, thus enabling the applicant’s attendance. Fifthly, the Court of Appeal had failed to explain why “due process and the interest of bringing the case to a close within a reasonable time” were given priority over the applicant’s attendance rights on 1 June 2010 given that those interests had never previously stood in the way of an adjournment of the case. 28. The Advocate General (advocaat-generaal) to the Supreme Court submitted an advisory opinion (conclusie) in which he expressed the view that, in the light of Article 281 taken together with Article 415 of the Code of Criminal Procedure (Wetboek van Strafvordering), the Court of Appeal had been called upon to decide whether the interest of the examination of the case at the hearing required the hearing to be adjourned. The advisory opinion continues (footnotes omitted): “11. [In the light of the principle stated, the Court of Appeal’s findings] do not reflect an incorrect understanding of the law; nor, in view of the following, is it incomprehensible. The Court of Appeal has established as fact that [its own] Advocate General has made several unsuccessful attempts to have the suspect – who is detained in Norway – transferred to the Netherlands so that he can exercise his right to attend the hearing in person. This finding implies that the Court of Appeal has considered the question whether it was possible for the suspect to be placed at its disposal for the purposes of the appeal but has answered it in the negative. Moreover, it does not appear likely that the applicant will return to the Netherlands shortly after the end of the criminal proceedings in Norway and will be able to appear at a further hearing. Contrary to what is argued by the drafter of the ground of appeal, the Court of Appeal therefore sufficiently examined the possibilities of mutual legal assistance. The fact that the Court of Appeal did not react in so many words to counsel’s suggestion that the outcome of the Norwegian criminal proceedings should be awaited does not change this. After all, in refusing to order an adjournment the Court of Appeal is not bound to answer every detail of the argument explicitly. [The sentence reflecting the decision that all parts of the request had been refused] was sufficient. That also implies the refusal to await the outcome of the Norwegian criminal proceedings, so that the suspect would be able to attend the hearing in the Netherlands by his own means or by way of transfer of the execution of the Norwegian sentence, if any. Furthermore, the suspect appeared at the first instance hearings alongside his counsel, in addition to several appeal hearings which he attended together with his counsel. It follows that the suspect had the opportunity to exercise his right to attend hearings and state his version of events to a court, notwithstanding the fact that the merits of the case were not dealt with at the appeal hearings referred to. The summonses for the appeal hearing on 1 and 4 June 2010 – at which hearing the suspect did not appear – were served in accordance with the law. Moreover, the defence could be conducted at this hearing on the applicant’s behalf by the applicant’s counsel, as in fact was the case. In addition, the Court of Appeal adjourned its examination of the case at the appeal hearing of 27 October 2009 already, at the request of counsel, because of the suspect’s detention in Norway. The examination of the case at the hearing in appeal had been adjourned nine times already, whereas the appeal proceedings lasted more than three years in total. The criminal acts with which the applicant was charged were committed in December 2004 [the drugs crimes] and January 2005 [the crimes against the person of E.] respectively, so that at the time of the appeal hearing of 1 June 2010 – at which hearing the request for an adjournment was made – five years and five months had already passed. Finally, in the cases of the co-suspects, which were dealt with simultaneously with [the present case] but not joined with it, one of them, S., did appear at that hearing. 12. Contrary to the argument made by the drafter of the point of appeal, the Court of Appeal was under no obligation to consider the seriousness of the charges against the applicant in deciding on the request for an adjournment but it was at liberty to consider the presence of counsel authorised to conduct the defence and the length of the criminal proceedings. 13. The limpidity of the Court of Appeal’s reasoning is not impaired by the Court of Appeal’s reliance, in refusing the request for an adjournment, on due process and the interest of bringing the case to a close within a reasonable time, even though these arguments supposedly did not stand in the way of adjournments of earlier appeal hearings. I note in this connection that the adjournments, from 23 September 2008 onwards, were connected, at least in part, with the need to ensure due process: the hearing of witnesses and the realisation of the suspect’s right to attend the hearing in person.” 29. On 13 December 2011 the Supreme Court dismissed the applicant’s appeal on points of law on summary reasoning. 30. It would appear that the applicant returned to the Netherlands at some time in mid-2013. 31. The applicant served the remainder of the sentence given by the Amsterdam Court of Appeal. He was released on 26 August 2015. 32. On 27 January 2011 the Oslo District Court convicted the applicant of drugs offences and sentenced the applicant to eleven years’ imprisonment. 33. On 1 September 2011 the Borgarting Court of Appeal reduced the prison sentence to five years and six months. It appears from the judgment that on 4 October 2009 the applicant had been caught red-handed importing 46 kilogrammes of cannabis. This judgment became final on 14 December 2011.