CASE OF ELIAZER v. THE NETHERLANDS
No violation of Art. 6-1;No violation of Art. 6-3-c;No violation of Art. 14+6
Elisabeth Palm;Gaukur Jörundsson
8. By summons of 5 June 1995 the applicant was ordered to appear on 14 June 1995 before the First-Instance Court (Gerecht in Eerste Aanleg) of the Netherlands Antilles on charges of possession of about one kilogram of cocaine. 9. By judgment of 28 June 1995, following adversarial proceedings in the course of which the applicant was assisted by a lawyer, the First-Instance Court acquitted the applicant. The prosecution filed an appeal with the Joint Court of Justice (Gemeenschappelijk Hof van Justitie) of the Netherlands Antilles and Aruba. 10. As the applicant had failed to appear before the Joint Court of Justice at its first hearing on the appeal on 2 January 1996, he was declared in default of appearance (verstek). The Joint Court of Justice adjourned the proceedings until 9 January 1996. The applicant also failed to appear on 9 January 1996. On that date, the Joint Court of Justice resumed the proceedings and examined the appeal. The applicant’s lawyer attended this hearing and conducted the applicant’s defence. 11. By judgment of 23 January 1996, following proceedings in absentia, the Joint Court of Justice quashed the judgment of 28 June 1995, convicted the applicant of having violated section 3(1) of the 1960 Opium Act of the Netherlands Antilles (Opiumlandsverordening 1960) and sentenced him to two years’ imprisonment. 12. Relying on the Cassation Regulations for the Netherlands Antilles and Aruba (Cassatieregeling voor de Nederlandse Antillen en Aruba), the applicant filed an appeal in cassation with the Netherlands Supreme Court (Hoge Raad), which appeal is limited to points of law and procedural conformity. 13. In its judgment of 27 May 1997, the Supreme Court noted that, pursuant to Article 10 § 2 of the Cassation Regulations for the Netherlands Antilles and Aruba, no appeal in cassation lay against judgments pronounced following proceedings in absentia. 14. It rejected the argument advanced by the defence, that the appeal in cassation should nevertheless be declared admissible on the ground that this provision of the Cassation Regulations was contrary to Article 14 of the Convention and Article 26 of the International Covenant on Civil and Political Rights in that it constituted an unjustified difference in treatment between persons tried in adversarial proceedings and persons tried in proceedings in absentia. 15. The Supreme Court noted that, according to Article 239 of the Code of Criminal Procedure of the Netherlands Antilles (Wetboek van Strafvordering van de Nederlandse Antillen), a person convicted on appeal following proceedings in absentia could file an objection (verzet) against this conviction. If the accused then appeared before the trial court, the case would, pursuant to Article 240 § 2 of the Code of Criminal Procedure of the Netherlands Antilles, be fully retried by the same court in the course of adversarial proceedings and an appeal in cassation would lie against the resulting judgment. 16. The Supreme Court concluded that, in the circumstances, no appeal in cassation lay against the judgment of 23 January 1996. However, on the basis of the contents of a statement made on 29 January 1996 on behalf of the applicant, the Supreme Court interpreted the applicant’s appeal in cassation as being an objection against his conviction in absentia and ordered the transmission of the applicant’s case file to the Joint Court of Justice for a determination of the applicant’s objection. 17. According to Article 216 of the Code of Criminal Procedure of the Netherlands Antilles as in force at the relevant time, an appeal to the Joint Court of Justice lies against a judgment given by the First-Instance Court. This appeal is a full appeal, that is, one comprising both fact and law. 18. Under the Cassation Regulations for the Netherlands Antilles and Aruba an appeal in cassation may be filed with the Netherlands Supreme Court against judgments on appeal given by the Joint Court of Justice of the Netherlands Antilles and Aruba. Such an appeal in cassation is limited to procedural conformity and points of law. 19. According to Article 239 of the Code of Criminal Procedure of the Netherlands Antilles, a person convicted by the Joint Court of Justice in absentia may file an objection (verzet) against this conviction. 20. If the accused then appears at the hearing on the objection before the Joint Court of Justice, the case will, pursuant to Article 240 § 2 of the Code of Criminal Procedure of the Netherlands Antilles, be fully retried by that court. An appeal in cassation lies against the resulting judgment. 21. If the accused does not appear before the Joint Court of Justice for the purpose of a retrial, the objection will be declared defunct and the judgment given in absentia will become final. 22. Article 10 § 2 of the Cassation Regulations for the Netherlands Antilles and Aruba reads as follows: “The accused cannot file an appeal in cassation against judgments given in absentia [bij verstek gewezen vonnissen].” 23. According to the explanatory memorandum to the Cassation Regulations for the Netherlands Antilles and Aruba (Memorie van Toelichting, Kamerstukken II, Zitting 1959-1960 – 5959 (R 1945), no. 3, p. 5), Article 10 of these Regulations was based on the following considerations: “... given the great distance between the seat of the Supreme Court and the Netherlands Antilles, it is not to be recommended to provide for an appeal in cassation in Antillean cases in all cases, where this is possible for cases in the Netherlands ... In general the suspect himself will be to blame that his case has been dealt with in absentia. In these circumstances, there is no cause to attach more weight to his interests than to the inconveniences which are attached to proceedings in cassation in respect of overseas cases.”