SUART v. THE NETHERLANDS
Inadmissible
Gaukur Jörundsson;Josep Casadevall
The applicant is a Netherlands national, born in 1962 and resident on Curaçao (Netherlands Antilles). He is represented before the Court by Mr G.P. Hamer, a lawyer practising in Amsterdam. A. The applicant hails originally from Curaçao (Netherlands Antilles). It appears that at some time before the events complained of he was convicted of drugs dealing there and spent fourteen months in prison. He subsequently moved to the Netherlands. In the spring of 1993 the applicant went to visit his native Curaçao. He returned to the Netherlands on 13 April 1993, arriving at Schiphol (Amsterdam) Airport on 14 April. Passing through customs the applicant stated that he had nothing to declare. Nonetheless his luggage was inspected by customs officials. A clock was found which had a wooden casing decorated with a picture of a typical Curaçao house. It appears from an official record subsequently drawn up by the customs officials concerned that they had felt the clock body to be “rather thick” and that, when they tapped it, it had sounded hollow. They had drilled a hole into it and some white powder had come out on the drill. When opened the clock was found to contain 620 grams of a substance identified as cocaine. The cocaine and the clock were seized. The applicant was arrested and questioned by a police officer and a customs officer. He stated that he had not known that the clock contained cocaine. The police officer placed him in police custody (inverzekeringstelling). The applicant was questioned by the police officer and the customs officer on 16 April 1993. According to his statement on this occasion, he had met a young woman, one D., on Curaçao, with whom he had entered into an intimate relationship. The applicant and D. had planned to travel to the Netherlands together. For this reason he had postponed his departure for a few days. His airline ticket, which had cost 1,900 guilders, had been bought for him by a friend. He had given this friend 1,200 guilders and the friend had paid the balance himself. He declined to give the name of the friend. On the day of the applicant’s and D.’s planned departure, 13 April 1993, D. had told the applicant that she would not accompany him. She had given him a souvenir clock. The applicant had travelled to the Netherlands alone. The applicant stated that he was not prepared to relinquish title (afstand doen) to the clock and the cocaine because they were not his. An unsigned document which was apparently appended to a receipt dated 14 April 1993 and delivered to the applicant by the police officer and the customs officer states that the applicant had in fact relinquished title to the clock and the cocaine. This document further states that the clock and the cocaine would be kept by the police at Schiphol Airport pending a decision of the public prosecutor. The applicant was questioned by an investigating judge on 16 April 1993. He made a brief statement confirming the statement made earlier the same day to the police officer and the customs officer. The investigating judge placed him in detention on remand (voorlopige hechtenis). On 19 May 1993 the applicant was released pending trial by order of the Haarlem Regional Court after a brief hearing in camera. According to the applicant’s counsel the clock was present at that hearing. The Regional Court’s order, however, does not refer to it. Proceedings in the Regional Court On 19 July 1993 the public prosecutor (officier van justitie) sent the applicant a notification that he would be prosecuted for importing or, in the alternative, possessing a quantity of cocaine. The applicant was summoned to appear before the Regional Court (arrondissementsrechtbank) of Haarlem on 29 November 1993. The summons was served at the applicant’s registered address in Lelystad on 28 October 1993. As the applicant was not at home at the time, the summons was handed to his sister, who agreed to take charge of it and ensure that it reached the applicant without delay. On 24 November 1993 the applicant’s lawyer sent two fax messages, one to the Regional Court’s registrar and one to the public prosecutor, both asking for the clock to be produced at the hearing. Two days later the applicant’s lawyer received a message by telephone from the secretary of the public prosecutor to the effect that the clock had not been deposited at the registry of the Regional Court and could not be traced. The applicant did not appear at the hearing on 29 November 1993. His counsel, who was present, stated that the applicant was apparently living in Amsterdam and that he had the impression that the summons had reached the applicant. He did not seek an adjournment for lack of any arguments on which to base such a request. The Regional Court proceeded with the trial in the applicant’s absence. Invoking the report of the European Commission of Human Rights in the case of Lala v. the Netherlands (4 May 1993, no. 14861/89, Series A no. 297-A), the applicant’s counsel asked to be allowed to address the court in the applicant’s defence. The prosecution objected on the ground that no compelling reasons were apparent which prevented the applicant from attending the hearing. This objection was accepted by the Regional Court, which accordingly proceeded to a judgment without hearing any defence argument. On 13 December 1993 the Regional Court gave its judgment. It found the applicant guilty of having intentionally imported 620 grams of cocaine into the Netherlands and sentenced him to twelve months’ imprisonment. It withdrew the clock and the cocaine from circulation. Proceedings in the Court of Appeal The applicant appealed to the Court of Appeal (gerechtshof) of Amsterdam. A summons to appear before the Court of Appeal on 1 September 1994 was addressed to the applicant at his address in Lelystad. However, it appeared that the applicant had in the meanwhile returned to Curaçao, and so the Court of Appeal declared the summons null and void. The applicant was summoned anew, this time to appear before the Court of Appeal on 4 January 1995. The applicant’s counsel – not the same lawyer who had tried to defend the applicant before the Regional Court – submitted grounds of appeal in writing. Relying on the European Court’s Lala v. the Netherlands judgment of 22 September 1994 (Series A no. 297-A) he argued that the first-instance proceedings had not been fair because the defence had not been heard. He asked for the case to be referred back to the Regional Court for rehearing in the applicant’s presence. Relying on, inter alia, the judgment of the European Court of Human Rights in the case of Salabiaku v. France (7 October 1988, Series A no. 141-A), he argued that criminal intent on the part of the applicant could not be proved. The clock which D. had given the applicant had appeared perfectly normal and there had been nothing to suggest that it might contain any illicit substance. He asked for the clock to be produced at the hearing. The Procurator General (procureur-generaal) of the Court of Appeal wrote to the applicant’s counsel on 22 December 1994 informing him that the clock could not be produced because it had been destroyed. The applicant and his counsel were present at the hearing on 4 January 1995. Counsel asked the Court of Appeal first to rule on the preliminary objections contained in his statement of grounds of appeal. The Court of Appeal withdrew to consider these objections. After deliberating in private it rejected the objection that the summons to the first-instance hearing had been served at the wrong address, noting that the address to which it had been served had been the address at which the applicant was registered and that it did not appear that the applicant had not been resident there. It further found that Article 6 of the Convention did not oblige it to refer the case back to the Regional Court on the ground that the applicant’s counsel had not had the opportunity to address that court in the applicant’s absence. The hearing was resumed. The applicant availed himself of his right to remain silent. The applicant’s lawyer again asked for the clock to be produced. The Procurator General again stated that it had been destroyed. The lawyer then argued that the prosecution ought to be declared inadmissible because what it considered to be the most essential item of prosecution evidence, the clock, had been destroyed; in the alternative, since the clock could not be produced, it should be assumed that the applicant had not had any real reason to examine it when it was given to him, and so the clock could not be relied upon to ground a conviction. The Court of Appeal gave its judgment on 18 January 1995. It found the applicant guilty of having intentionally imported cocaine into the Netherlands and sentenced him to twelve months’ imprisonment. The Court of Appeal noted that although the applicant had not formally relinquished title to the clock, it could be inferred from his “procedural attitude” (proceshouding) at the relevant time that he had not been interested in having the clock re-examined at a later stage. There was therefore no need to declare the prosecution inadmissible merely because the clock had been destroyed by mistake. Moreover, the clock was not so important an item of prosecution evidence as the defence claimed. In any event, sufficient information about it was available in the form of descriptions and photographs, and to that extent the rights of the defence were not impaired to any material extent. In so far as the defence claimed that it had not been apparent that there had been anything unusual about the clock, the Court of Appeal referred to the official report by the customs officers who had arrested the applicant, from which it appeared that the applicant had been found in possession of a clock comprising a wooden body which had appeared “rather thick” and which, when tapped on, had sounded hollow. Proceedings in the Supreme Court The applicant, through his lawyer, lodged an appeal on points of law to the Supreme Court (Hoge Raad) on 29 May 1995. He complained, as his first ground of appeal, that since the prosecution had been responsible for the destruction of the clock, the prosecution ought to have been declared inadmissible or, in the alternative, all evidence based on the clock ought to have been rejected. It was of essential importance whether or not the appearance of the clock had been such as to justify any reasonable suspicion that it might contain cocaine – which in his contention was not the case. Moreover, even if the applicant should be considered to have relinquished title to the clock – which in his contention was not so either – he had not waived the right to base a defence on it. Finally, the photographs contained in the file were not adequate substitutes for the clock itself. He claimed, as his second ground of appeal, that since he had consistently denied all knowledge of the fact that the clock contained cocaine, it could not be proved that he had intentionally imported that substance into the Netherlands. In his contention the finding of intent had been based solely on the presence of the cocaine in his luggage. As his third ground of appeal, relying on the European Court’s above-mentioned Lala judgment, he complained about the refusal by the Court of Appeal to refer the case back to the Regional Court for a rehearing at first instance, given that the Regional Court had refused to allow his counsel to address it in his defence. Finally, should the above grounds of appeal in themselves not constitute sufficient reason to overturn the judgment of the Court of Appeal, he argued that, taken together, they reflected a general lack of fairness of the proceedings. The Supreme Court gave its judgment on 7 November 1995. It rejected the appeal in its entirety. With regard to the third ground of appeal, the Supreme Court referred to its own case-law according to which the failure by the first-instance court to allow counsel to plead in the absence of the accused, although unlawful per se, did not entail any obligation on the part of the Court of Appeal to refer the case back to the Regional Court for a rehearing at first instance. The fourth ground of appeal was rejected in view of what had been held with regard to the other three points.