R.W. v the Netherlands - 37281/05 [2010] ECHR 1468 (14 September 2010)

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The European Court of Human Rights (Third Section), sitting on 14 September 2010 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Egbert Myjer,
Luis López Guerra, judges,

The applicant, Mr R.W., is a Dutch national who was born in 1947 and lives in Spijkenisse. The Dutch Government (“the Government”) are represented by their Agent, Mr Roeland Böcker, of the Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

After an investigation, the Public Prosecution Service decided that, on the basis of the evidence it had gathered, it was unlikely that the applicant would be convicted. In view of the insufficiency of lawful and convincing evidence (onvoldoende wettig en overtuigend bewijs), the charges against the applicant were dropped (sepot).

The decision to discontinue the criminal proceedings against the applicant was registered in the Criminal Records Register (Justitieel Documentatie Systeem), as required by Dutch law. The data that were retained in this register comprised, in the relevant part, the applicant's personal details and the offences of which he had been suspected. Since the case concerned a sexual offence, these data will remain registered until 20 years after the applicant's death or until he reaches the age of 80 years.

The applicant unsuccessfully applied to have the code, indicating the reason why the proceedings against him had been discontinued (sepotcode), changed from 02 (“insufficient evidence”) to 01 (“wrongly considered a suspect”). If criminal proceedings are discontinued for the latter reason, no mention of those proceedings or the offence(s) of which the person concerned was suspected is made in the Criminal Records Register.

The final domestic decision in this regard was taken by the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) on 2 November 2005. It held, in the relevant part, that the decision to discontinue the proceedings against the applicant had been correctly based on the finding that there had been insufficient evidence against the applicant rather than that the applicant had been wrongly considered a suspect.

On 27 January 2009 the President of the Chamber to which the case was allocated (“the President”) decided, under Rule 54 § 2 (b) of the Rules of Court, that notice of the application should be given to the Government and that they should be invited to submit written observations on the admissibility and merits of the case. The Government were asked, by letter of 2 February 2009, to submit their observations by 25 May 2009.

On that same 2 February 2009 a letter was sent to the applicant, informing him, among other things, of the above decision. It comprised a Dutch language version of an information package for applicants concerning the procedure before the Court from this stage onwards. It also contained the following:

“I would inform you that at this stage of the proceedings, according to Rule 34 § 3, all communications of applicants or their representatives shall as a rule be made in one of the Court's official languages, English or French.

Lastly, I would draw your attention to Rule 36 §§ 2 and 4 according to which an applicant needs to be represented by an 'advocate' before the Court at this stage of the proceedings. I would therefore invite you to complete and return to me, by 2 March 2009, the enclosed form. If you have any difficulties in finding an advocate, your local or national bar association Dutch Bar Association (Nederlandse Orde van Advocaten) Neuhuijskade 94, 2596 XM Den Haag, Tel: (070) 335 3535 may be able to assist you.”

By letter in the Dutch language of 8 February 2009 the applicant requested the Court for a translation of the materials sent to him on 2 February 2009 as he did not have a command of English or French.

A letter was sent to the applicant on 12 February 2009, in Dutch, reminding him of the obligation, at this stage of the proceedings (i.e. after the communication of the case to the Government), to be represented by an advocate who would then also guarantee communication with the Court in one of the two official languages. Reference was also made to relevant parts of the aforesaid information package, which had been sent to the applicant in Dutch.

On 27 February 2009 the applicant sent a letter in Dutch requesting an extension of a month of the time allowed to find a lawyer. The date initially set for that purpose had been 2 March 2009. The applicant motivated his request by stating that the Court's letter had taken a long time to reach him and that it was proving rather difficult to find a lawyer for this type of case.

On 16 March 2009 the President granted an extension of the time-limit; the new deadline for him to find an “advocate” was 6 April 2009.

No correspondence having been received from the applicant, a reminder was sent to him on 19 May 2009, in Dutch and by registered mail with acknowledgment of receipt. He was given a new deadline – 3 June 2009 – to arrange for his representation. The applicant signed for receipt of this letter on 27 May 2009.

On 20 May 2009 a letter was received from the Government stating that direct negotiations with the applicant had resulted in a friendly settlement of the case. The Government, therefore, did not intend to submit any written observations on the admissibility and merits of the application by 25 May 2009; the original date by which any such had to be submitted.

On 9 June 2009 the applicant was requested to comment on the information submitted by the Government by 7 July 2009. He was also informed that the President had granted leave, pursuant to Rule 36 § 2 of the Rules of Court, for him not to be represented by an “advocate” for the duration of the friendly settlement negotiations.

On 1 July 2009 the applicant wrote, in English, that he rejected the friendly settlement proposed by the Government.

On 9 July 2009 a letter was sent by the Government confirming that the friendly settlement negotiations had failed.

By letter of 9 September 2009 and in the light of these developments, the Government were invited to submit any observations on the admissibility and merits of the case they would wish to make by 21 October 2009.

By letter of the same date the applicant was informed that the President had decided, pursuant to Rule 36 § 2 in fine of the Rules of Court, to lift the exemption, temporarily granted to the applicant, from the obligation to be represented by an “advocate”. The applicant was requested to make the proper arrangements for his representation by 2 October 2009.

Following an extension of the time-limit fixed for that purpose, written observations on the admissibility and merits were submitted by the Government on 2 December 2009. By letter of 11 January 2010 they were forwarded to the applicant and he was invited to submit, by 22 February 2010, any written observations which he might wish to make in reply, together with any claims for just satisfaction. As the applicant had failed to find an “advocate” by 21 October 2009, the most recent deadline set for that purpose, it was reiterated to him in that same letter that he was still under an obligation to do so. The applicant was also informed on that occasion that, in the absence of an “advocate” duly representing him before the Court, it could not be guaranteed that the Court would take into consideration any submissions received from him.

On 16 February 2010 the applicant submitted, in English, his observations in reply to the observations of the Government. They were sent and signed by the applicant himself. The applicant did not refer, in any way, to the Court's repeated request for him to appoint an “advocate” or the consequences that a failure to do so might entail.

By letter of 7 April 2010, sent by registered post with acknowledgment of receipt, the applicant was informed that the President had decided not to include the applicant's observations in the case file for the Court's consideration as they had not been submitted by an “advocate” mandated to represent the applicant before the Court. The applicant was also informed that the manner in which he had submitted his observations in reply had been interpreted as an implicit request to the President, under Rule 36 § 2 of the Rules of Court, to be granted leave not to be represented by an advocate during the proceedings before the Court, and that that request had been refused by the President. Further to that, the letter contained the following:

“Lastly, if you do not find a representative to submit observations in reply to those of the Government [..] before 5 May 2010, I would draw your attention to Article 37 § 1 (a) of the Convention and the Court's case law (see, among other relevant authorities, Klopcovs and Others v. Latvia (dec.), no. 14042/02, 9 February 2010), which provide that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. In that respect, I would remind you that a duly completed authority form must be sent to the Court.”

The applicant replied by letter of 7 May 2010, stating, in the relevant part, that “the Netherlands Bar Association has not yet found legal representation for me” and that “they have informed me that they need more time to succeed in finding an appropriate advocate”. This statement was not supported by any documentation. The applicant went on to say that he was “very interested in continuing” and he accordingly requested an extension of the time-limit in order to find the right advocate.

By letter of 14 June 2010 the applicant was informed that the President had refused his request and that the Court would consider the case on the basis of the file as it stood at present.

The applicant complained, without invoking any Article of the Convention, that the refusal of the Dutch authorities to change the reason for the decision to discontinue the criminal proceedings against him from “insufficient evidence”, as recorded in the Criminal Records Register, to “wrongly considered a suspect” might result in a refusal to issue him with a certificate of good behaviour (verklaring omtrent het gedrag). The applicant submitted that he might need such a certificate in the future for employment purposes.

The Court notes, at the outset, that the President refused the applicant's – albeit only implicit – request to be allowed to represent himself in the proceedings before the Court.

Furthermore, the Court notes that the applicant has not managed to find an appropriate advocate during a period of around one and a half year despite repeated reminders of the ongoing obligation to do so, barring the period of three months in which leave not to be represented was granted for the duration of friendly settlement negotiations.

The Court, moreover, notes that the applicant has not provided any explanation for his conduct, except for the wholly unsubstantiated assertion that it was rather difficult to find an “advocate” for this type of case and that the Netherlands Bar Association had not yet found a representative and had allegedly informed the applicant that they needed more time for that purpose.

Be that as it may, and given the circumstances, the Court cannot but conclude that the applicant has been given ample opportunity to discharge himself of the obligation to be duly represented by an advocate before the Court.

The Court reiterates that, according to its practice, failure to comply with the requirement of proper legal representation may result in the discontinuation of the proceedings (see for instance Grimaylo v. Ukraine (dec.), no. 69364/01, 7 February 2006). In the specific circumstances of the present case, the Court sees no reason to deviate from that practice.

For these reasons, the Court finds it established that it is no longer justified to continue the examination of the application (Article 37 § 1 (c) of the Convention). Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.

Consequently, the Court considers the present application should be struck out of its list of cases.

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You are here: BAILII >> Databases >> European Court of Human Rights >> R.W. v the Netherlands - 37281/05 [2010] ECHR 1468 (14 September 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/1468.html Cite as: [2010] ECHR 1468