CASE OF PELLADOAH 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 Satyanund Pelladoah is a Mauritian national born in 1947 and resident in Quatre Bornes, Mauritius. 9. On 27 December 1985 Mr Pelladoah was arrested at Schiphol Airport after customs officials found more than twenty kilograms of heroin, some of it mixed with methaqualone (a synthetic psychotropic drug), in a suitcase which he was carrying. He was charged primarily with bringing into the country, with or without criminal intent as the case might be, a quantity of a substance containing heroin. This amounts to an indictable offence (misdrijf) carrying a maximum penalty of twelve years’ imprisonment (gevangenisstraf) and a fine of NLG 100,000 if committed with criminal intent (opzettelijk - section 2 (1) (A) and section 10 (4) of the Opium Act - Opiumwet) but a summary offence (overtreding) carrying a maximum penalty of only six months’ detention (hechtenis) and a fine of NLG 25,000 if committed without such intent (section 2 (1) (A) and section 10 (1) of the Opium Act). In the alternative, he was charged with possession (aanwezig hebben) of such a substance, with or without criminal intent as the case might be, which is an indictable offence carrying a maximum penalty of four years’ imprisonment and a fine of NLG 100,000 if committed with criminal intent (section 2 (1) (C) and section 10 (2) of the Opium Act), but a summary offence carrying a maximum of six months’ detention and a fine of NLG 25,000 if criminal intent is absent (section 2 (1) (C) and section 10 (1) of the Opium Act). 10. On 14 August 1986 Mr Pelladoah was tried by the Haarlem Regional Court (arrondissementsrechtbank); he admitted having "taken a suitcase off the luggage conveyor ... [which, when examined by customs,] turned out to contain a large quantity of a substance subsequently found to be heroin". 11. The Regional Court gave judgment on 21 August 1986, acquitting Mr Pelladoah of bringing a quantity of heroin into the country with criminal intent, but finding him guilty of doing so without criminal intent; it sentenced him to six months’ detention. By the same judgment it ordered his immediate release as he had already spent that length of time in detention on remand. 12; Both the prosecution and the defence appealed against the Regional Court’s judgment to the Amsterdam Court of Appeal. The applicant was expelled from the Netherlands pursuant to the Aliens Act (Vreemdelingenwet) before the appeals were heard. 13. The Amsterdam Court of Appeal held a hearing in the case on 10 February 1987. The official record of the hearing states that Mr Pelladoah was declared to be in default and contains the following passage: "Mr K. [counsel for Mr Pelladoah] declares - in essence - : ... I request the court to allow me to conduct the defence, as my client, in view of his place of residence, is unable to appear at the hearing." The Court of Appeal refused this request since "no compelling reason (klemmende reden) had become apparent" to allow it. Witnesses were heard; the prosecution was allowed to question them but Mr Pelladoah’s lawyer was not. 14. The Court of Appeal gave judgment on 24 February 1987. In view of information to the effect that an extensive investigation into the drugs trade was under way in Mauritius, in the course of which Mr Pelladoah had made statements to the Mauritian authorities, the Court of Appeal held that the case had not been fully examined and ordered the case to be reheard. A new summons was issued for Mr Pelladoah to appear. 15. The second hearing of the Court of Appeal in the case was held on 20 November 1987. Since two of the three judges had not been present at the first hearing, the examination of the case was commenced anew. This time Mr Pelladoah’s lawyer asked to be allowed to represent his client pursuant to section 270 of the Code of Criminal Procedure (Wetboek van Strafvordering, CCP - see paragraph 23 below) as regarded the alternative charge. This request was refused because "it had not been stated, nor did it appear, that [the lawyer] had been specifically authorised by the accused to represent him; moreover, the primary charge, for which representation was not allowed, fell to be examined first". One of the witnesses who had been heard at the previous hearing was heard again; the prosecution was granted the opportunity to question him and make observations as to his statements but again Mr Pelladoah’s lawyer was not. The prosecution asked that Mr Pelladoah be sentenced to twelve years’ imprisonment. 16. The Court of Appeal then suspended the hearing until 22 January 1988 so as to enable the prosecution to have relevant parts of the report of the Mauritian authorities translated into Dutch. 17. The hearing was continued on 22 January 1988. The lawyer asked to be allowed to represent Mr Pelladoah at the hearing and submitted a written declaration authorising him to do so. The Court of Appeal again refused to accede to the lawyer’s request on the ground that "the primary charge, which carried a sentence of imprisonment and for which, consequently, representation [was] not allowed, fell to be examined first". 18. On 5 February 1988 the Court of Appeal delivered a default judgment. It found Mr Pelladoah guilty on the primary charge, committed with criminal intent, and sentenced him to nine years’ imprisonment. According to its judgment, it based the sentence on "the seriousness of the act concerned and the circumstances in which it was committed, and the person of the accused"; it drew attention to the quantity of the heroin-containing substance brought into the country and observed that Mr Pelladoah had made unlawful use of his diplomatic passport. 19. Through his lawyer, Mr Pelladoah filed an appeal on points of law to the Supreme Court (Hoge Raad). In his grounds of appeal (cassatiemiddelen) he complained essentially of the following: firstly, that at its first hearing on 10 February 1987 the Court of Appeal had erred in not considering the reason for the applicant’s failure to appear - the trouble and expense of a journey from Mauritius to the Netherlands - to be sufficiently "compelling"; secondly, that representation by the lawyer should have been allowed because even if criminal intent was proven the primary charge did not concern an indictable offence which carried a sentence of imprisonment. 20. The Supreme Court gave judgment on 24 October 1989. As to the applicant’s first complaint, it observed that on 20 November 1987, a different chamber of the Court of Appeal had begun a completely new examination of the case and that the judgment of that court had therefore not been based on the hearing of 10 February 1987. It held that a complaint concerning the refusal of a request made at the latter hearing could therefore not entail the nullity of that judgment. It also rejected the applicant’s second complaint, citing the legal provision according to which the primary charge, in case of criminal intent, constituted an indictable offence carrying a term of imprisonment. 21. In general, the accused - if he is not a juvenile (section 500 h of the Code of Criminal Procedure) - 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 deferred (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 it by the police (section 272 CCP) but it is rarely made use of unless the accused is a juvenile. 22. 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 summary offence 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. 23. 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 act 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). 24. 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. 25. 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 afford 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). 26. In principle the Supreme Court has held to its rule (see paragraph 24 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" 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). 27. 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. In its judgment of 30 November 1993, DD (Delikt en Delinkwent, Offence and Offender) 94.147, Bijl. NJB (case-law supplement to the Nederlands Juristenblad, Netherlands Law Review, 14 January 1994, no. 2, p. 17), the Supreme Court has recognised that the expulsion of the accused pursuant to the Aliens Act generally constitutes a "compelling reason" for his absence at the trial. 28. If counsel wishes to act for the defence in the absence of his client, he should expressly ask for 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). Neither is a request made by counsel for the hearing to be deferred, as was held in, inter alia, the Supreme Court’s judgment of 21 December 1993, DD 94.176.