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THIRD
SECTION
CASE OF LALMAHOMED v. THE NETHERLANDS
(Application
no. 26036/08)
JUDGMENT
STRASBOURG
22
February 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Lalmahomed v. the
Netherlands,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Boštjan
M. Zupančič,
Egbert Myjer,
Ineta
Ziemele,
Luis López Guerra,
Ann Power,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 25 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26036/08) against the Kingdom
of the Netherlands lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Netherlands national, Mr
Goelzeer Lalmahomed (“the applicant”), on 2 June 2008.
- The
applicant was represented by Mr A.R. Kellermann, a lawyer practising
in The Hague. The Netherlands Government (“the Government”)
were represented by their Deputy Agent, Ms L. Egmond of the Ministry
for Foreign Affairs.
- The
applicant alleged, in particular, that the refusal of leave to appeal
against conviction and sentence offended against Article 6 of the
Convention.
- On
26 May 2010 the President of the Third Section decided to give notice
of the application to the Government. It was also decided to rule on
the admissibility and merits of the application at the same time
(Article 29 § 3, as in force at the time).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in Delft.
- On
7 June 2006 a person was stopped for questioning in connection with
an offence against the General Municipality Bye-laws (Algemene
Plaatselijke Verordening) of The Hague. He had no proof of his
identity on his person.
- The
police officer identified the person as the applicant from a police
photograph. The applicant was fined 50 euros (EUR) for not being able
to show proof of identity. The fine was not paid, and the applicant
was summoned to appear before the District Court judge
(kantonrechter) of The Hague to answer a charge of failing to
present an official identity document (see paragraph 16 below).
- On
15 January 2007 the applicant appeared before the District Court
judge. He claimed to be innocent, suggesting that the culprit might
have been his brother. He stated that he had been acquitted of
similar charges several times before. The District Court judge then
adjourned the hearing in order to enable the reporting police officer
and the applicant to check an identity photograph together. The
applicant gave a mobile telephone number so that an appointment could
be made.
- On
9 May 2007 instructions were sent on the public prosecutor's behalf
to the police for the applicant to be shown the police identity
photograph, a new official record to be made and a photograph of the
applicant and if possible his brother also to be attached thereto.
- On
27 June 2007 a police officer drew up an official record of his
various attempts to contact the applicant by telephone; he had been
met with a recording of the voice of a man asking callers not to
leave any messages because he had insufficient prepaid credit to
listen to them and call back. The Government state that the police
officer who had first identified the applicant (paragraph 7 above)
wished to persist in his statement that he had recognised the accused
as the applicant from the photograph in the possession of the police.
Clear police photographs of the applicant and his brother, which the
Government state show that there was little resemblance between them,
were dispatched in addition.
- The
hearing was resumed on 11 October 2007 at 12 noon. The applicant had
been summoned in writing but failed to turn up in time to take part.
The District Court judge then tried him in absentia, convicted
him and sentenced him to a fine of EUR 60 or one day's detention in
lieu. Judgment was given orally. The official record of delivery
reads as follows:
“OFFICIAL RECORD OF DELIVERY OF ORAL JUDGMENT
(AANTEKENING MONDELING VONNIS)
Judgment given by District Court judge C. on 11 October
2007 in the case against the accused
Name: Lalmahomed
First names: Goelzeer
Born on: 30 October 1962 in District Suriname
(Suriname)
Address: [etc.]
Place of residence: Delft
Defended case, [accused] failed to turn up after
adjournment
QUALIFICATION:
Minor offence defined in Article 447e of the Criminal
Code (Wetboek van Strafrecht), section 2 of the Compulsory
Identification Act (Wet op de identificatieplicht)
COMMITTED:
on 7 June 2006
DECISION:
Fine of EUR 60,00 or 1 day's detention in lieu
The judge states that for lodging an appeal this case is
subject to a special procedure, the so-called leave-to-appeal system.
(signed) the District Court judge”
- The
applicant lodged an appeal the same day by filling in a form at the
registry. He stated his reasons for wishing to appeal as follows:
“I did not attend the hearing because:
I was mistaken about the time. I thought it was at 1
p.m. ...
I would have wished to put forward the following:
I am not the person who committed the offences. I have
been acquitted 8 or 9 times already because someone else is
misusing my identity.”
- On
3 December 2007 a single-judge chamber of the Court of Appeal
(gerechtshof) of The Hague sitting as President gave a
decision refusing the applicant leave to appeal. It contains the
following reasoning:
“In view of the case file,
which includes an extract from the criminal register (justitiële
documentatie), the President does
not consider plausible the applicant's statement that his identity
details are systematically misused by someone else and that he has
been acquitted by the courts several times already because of that.
The President is not aware of any other reasons for
which the interests of the proper administration of justice require
the case to be heard in appeal.”
The
judgment of the District Court judge thus became final.
- The
extract from the criminal register as contained
in the case file of the single-judge chamber of the Court of Appeal
shows that the applicant has been convicted of crimes from his early
adulthood until recently. He has also submitted authentic
copies of official records of oral delivery of recent summary
judgments of the District Court of The Hague. These are dated
19 January 2006, 2 May 2006, 19 June 2006, 8 March 2007 and 8
January 2008. They give no details of the cases other than that they
ended in acquittals.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
A. Domestic law
1. The Code of Criminal Procedure (Wetboek
van Strafvordering)
- In
its relevant part, Article 410a of the Code of Criminal Procedure
provides as follows:
“1. If an appeal is possible and has
been lodged against a judgment concerning only one or more minor
offences (overtredingen) or indictable offences (misdrijven)
which, according to the statutory description, carry a sentence of
imprisonment not exceeding four years, and no other sentence or
measure has been imposed than a fine not exceeding – or, if two
or more fines have been imposed in a single judgment, not exceeding a
combined maximum – of EUR 500, the appeal lodged shall only be
heard and considered if, in the considered opinion of the President,
such is required in the interests of the proper administration of
justice. ...”
This
provision entered into force on 1 July 2007.
2. Failure to present an identity document
- Section
2 of the Compulsory Identification Act (Wet op de
identificatieplicht) requires every person aged fourteen or over
to present an official identity document to a police officer upon
first demand. Article 447e of the Criminal Code (Wetboek van
Strafrecht) makes failure to do so a minor offence punishable by
a second-category fine (i.e. not exceeding, at the relevant time, EUR
3,350).
3. The Criminal Records (Information) Ordinance
(Besluit Justitiële
Gegevens)
- Section
3 of the Criminal Records (Information) Ordinance provides as
follows:
“In relation to minor offences, the following
shall be information for the record:
a. the information mentioned in sections 6
and 7(1) of cases in which the public prosecution service has taken a
decision to settle the case, with the exception of a decision to hand
out a penal order (strafbeschikking) in which only a fine is
imposed to an amount of less than EUR 100 and a decision not to
pursue the prosecution, unless the latter decision is made subject to
conditions;
b. the information mentioned in sections 6
and 7(1) of cases in which a court has given a decision, whether
final or not, in so far as a penal community service order
(taakstraf) or a custodial sentence other than in lieu of a
sentence of another kind (vrijheidsstraf anders dan vervangende)
has been imposed, or a fine of at least EUR 100, and in those
cases in which an additional penal measure (bijkomende straf)
has been imposed.”
Section
6 of the ordinance sets out the information identifying the convicted
person that is to be recorded; section 7(1) sets out the information
required to record the criminal act concerned, the decision of the
public prosecution service or the court as the case may be and the
execution of the sentence or other penal measure.
B. Communication No. 1797/2008 of the Human Rights
Committee of the United Nations
- Article
14 of the International Covenant on Civil and Political Rights of
1966, in its relevant part, provides as follows:
“5. Everyone convicted of a crime shall
have the right to his conviction and sentence being reviewed by a
higher tribunal according to law.”
- On
27 July 2010 the Human Rights Committee of the United Nations adopted
Views under Article 5 § 4 of the Optional Protocol to the
International Covenant on Civil and Political Rights on Communication
No. 1797/2008 (Thomas Wilhelmus Henricus Mennen v. The
Netherlands). These Views included the following (footnote references
omitted):
“Consideration of the merits
8.1 The Human Rights Committee has considered
the present communication in the light of all the information made
available to it, as provided under article 5, paragraph 1, of the
Optional Protocol.
8.2 As to the author's claim that he has not
been able to exercise his right to appeal under article 14, paragraph
5, in an effective and meaningful way, since he did not have access
to a duly reasoned, written judgment of the trial court and to other
documents such as trial transcripts, the Committee notes that the
State party confirmed that in the present case no such document had
been produced. The Committee notes the State party's submission that
the author's counsel was provided with a number of official police
reports on the case prior to his application for leave to appeal,
without specifying their content and relevance to the verdict. The
Committee, however, observes that these reports could not have
provided guidance as to the motivation of the first instance court in
convicting the author of a criminal offence, nor indication on what
particular evidence the court had relied. The Committee recalls its
established practice that in appellate proceedings guarantees of a
fair trial are to be observed, including the right to have adequate
facilities for the preparation of his defence. In the circumstances
of the instant case, the Committee does not consider that the reports
provided, in the absence of a motivated judgment, a trial transcript
or even a list of the evidence used, constituted adequate facilities
for the preparation of the author's defence.
8.3 The Committee further notes that,
according to the State party, the President of the Court of Appeal
denied leave to appeal with the motivation that a hearing of the
appeal was not in the interests of the proper administration of
justice and that counsel's contentions were not supported in law. The
Committee considers this motivation inadequate and insufficient in
order to satisfy the conditions of article 14, paragraph 5, of the
Covenant, which require a review by a higher tribunal of the
conviction and the sentence. Such review, in the frame of a decision
regarding a leave to appeal, must be examined on its merits, taking
into consideration on the one hand the evidence presented before the
first instance judge, and on the other hand the conduct of the trial
on the basis of the legal provisions applicable to the case in
question.
8.4 Accordingly, in these specific
circumstances, the Committee finds that the right to appeal of the
author under article 14, paragraph 5, of the Covenant has been
violated, due to failure of the State party to provide adequate
facilities for the preparation of his defence and conditions for a
genuine review of his case by a higher tribunal.
9. The Human Rights Committee, acting under
article 5, paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political Rights, is of the view that the facts
before it reveal violation of article 14, paragraph 5, of the
Covenant.”
THE LAW
I. ADMISSIBILITY
A. The Government's preliminary objection
- The
Government argued by way of preliminary objection that the applicant
could have submitted a ground of appeal to the effect that refusal of
leave to appeal would constitute a violation of the Convention.
- The
applicant replied that he had been unaware of the existence of the
leave-to-appeal system, which had only come into being some three
months before he lodged his appeal. Moreover, at that stage he had
not received the judgment of the District Court judge in writing.
- The
Court observes that for a single-judge chamber of the Court of Appeal
sitting as President to accept any argument to the effect that the
Convention required the applicant to be heard in person would be to
negate the entire leave-to-appeal system as enshrined in domestic
law. That being the case, the Court is not persuaded that it would
have made any difference in the present case had the applicant so
argued. Nor indeed have the Government demonstrated that such an
argument has ever been successfully used. It follows that the
Government's preliminary objection must be dismissed.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3
(c) OF THE CONVENTION
- The
applicant complained that he was denied access
to the appellate jurisdiction. He relies on Article 6 §§
1 and 3 (c) of the Convention, which reads as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require; ...”
- The
Government denied that there had been any such violation.
A. Argument before the Court
1. The applicant
- The
applicant alleged a violation of the right to defend himself in
person, as guaranteed by Article 6 §§ 1 and 3 (c) of the
Convention, as he had not been offered any opportunity to appear in
person before the Court of Appeal. This violation was, in his
submission, aggravated by the absence to lodge any further appeal on
points of law to the Supreme Court. It was his position that the
domestic legislation which made such a state of affairs possible in
itself violated the Convention provisions mentioned.
- The
applicant stated that the form which he had returned to the
authorities did not state that leave to appeal could be denied
without a hearing. Moreover, prospective appellants usually did not
receive any documents from the first-instance case file at the
leave-to-appeal stage.
- He
also pointed, “for the sake of completeness”, to the
Views of the United Nations Human Rights Committee on Communication
No. 1797/2008, the facts of which were, in his submission, very
similar to his own case.
- Finally,
he complained, under Article 6 § 2, that his statement that he
had been acquitted on grounds of mistaken identity had been dismissed
as implausible before without further examination. He had claimed to
have been acquitted on the ground that someone else had misused his
identity, but acquittals of minor offences were excluded from the
criminal record by virtue of section 3 of the Criminal Records
(Information) Ordinance (paragraph 17 above).
2. The Government
- The
Government submitted that Article 6 of the Convention did not include
a right of access to an appellate jurisdiction, unlike Article 2 of
Protocol No. 7 which was not in force for the Kingdom of the
Netherlands.
- They
also noted that the Netherlands leave-to-appeal system was far from
unique; such systems were found in many countries. They served to
prevent large numbers of relatively insignificant cases from clogging
up the criminal justice system. Moreover, exceptions to the right of
appeal in criminal matters in regard to offences of a minor character
were recognised even in Article 2 of Protocol No. 7.
- In
the alternative, they argued that the applicant had in fact had the
benefit of review of his case by a higher tribunal, albeit not in the
form of a full re-hearing. The single-judge chamber of the Court of
Appeal sitting as President had been presented with the complete case
file, including the investigation documents. The applicant had not
been prevented from making what legal points he wished, including
references to the Convention if he saw fit, and the assessment by the
single-judge Chamber had not been subject to any statutory
restrictions.
- For
the remainder, they stated that the applicant was himself to blame
for not turning up at the hearing after the proceedings had been
adjourned by the District Court judge. The mere fact that the
applicant had not attended the second hearing did not suffice to make
the conviction unfair.
3. The Court's assessment
- The
Court notes at the outset that Article 6 does not compel Contracting
Parties to provide appeals in civil or criminal cases (see Delcourt
v. Belgium, 17 January 1970, § 25, Series A no. 11). A
right to seek review of conviction and sentence is enshrined in
Article 2 § 1 of Protocol No. 7 in terms similar to those of
Article 14 § 5 of the International Covenant on Civil and
Political Rights.
-
It is also correct that the Kingdom of the Netherlands has not
ratified Protocol No. 7. Consequently the Convention did not impose
on the respondent Party the obligation to provide the applicant with
the opportunity to appeal.
- Even so, a Contracting Party which provides for the
possibility of an appeal is required to ensure that persons amenable
to the law shall enjoy before the appellate court the fundamental
guarantees contained in Article 6 (see the above-cited Delcourt
judgment, loc. cit., and De Cubber v. Belgium,
26 October 1984, § 32, Series A no. 86; as more recent examples,
Khalfaoui v. France, no. 34791/97, § 37, ECHR 1999 IX;
and Kudła v. Poland [GC], no. 30210/96, § 122, ECHR
2000 XI). The right to a fair trial, from which the requirement
of the proper administration of justice is to be inferred, applies to
all types of criminal offence, from the most straightforward to the
most complex. The right to the fair administration of justice holds
so prominent a place in a democratic society that it cannot be
sacrificed for the sake of expedience (see Delcourt, loc.
cit.; more recently, Ryakib Biryukov v. Russia, no.
14810/02, § 37, ECHR 2008 ...; and Ramanauskas v.
Lithuania [GC], no. 74420/01, § 53, ECHR 2008 ...).
- However, it is quite possible that leave-to-appeal
proceedings may comply with the requirements of Article 6, even
though the appellant be not given an opportunity to be heard in
person by the appeal court, provided that he or she had at least the
opportunity to be heard by a first-instance court (see, in
particular, Monnell and Morris v. the United Kingdom, 2 March
1987, § 58, Series A no. 115; more recently, Sibgatullin v.
Russia, no. 32165/02, § 35, 23 April 2009). Moreover,
as long as the resulting decision is based on a full and thorough
evaluation of the relevant factors (Monnell and Morris, §
69), it will escape the scrutiny of the Court; in this connection,
the Court reiterates that it is not its function to deal with errors
of fact or law allegedly committed by the national courts (see García
Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I; and
Cornelis v. the Netherlands (dec.), no. 994/03, ECHR 2004-V
(extracts)), as it is not a court of appeal – or, as is
sometimes said, a “fourth instance” – from these
courts (see, among many other authorities, Kemmache v. France (no.
3), 24 November 1994, § 44, Series A no. 296 C;
and Melnychuk v. Ukraine (dec), no. 28743/03, ECHR 2005-IX).
- It
is also worth noting for the sake of clarity that Protocol No. 7 adds
to the guarantees contained in the Convention: it does not detract
from them. For present purposes, this means that Article 2 of
Protocol No. 7 cannot be construed a contrario as limiting the
scope of Article 6 guarantees in appellate proceedings with respect
to those Contracting Parties for which Protocol No. 7 is not in force
(Ekbatani v. Sweden, 26 May 1988, § 26, Series A no.
134).
- Nonetheless,
the mere fact that Protocol No. 7 cannot be applied prevents the
Court from subjecting the law governing the Netherlands
leave-to-appeal system to scrutiny similar in nature and scope to
that of the Human Rights Committee.
- It
remains to be decided whether the requirements of Article 6 of the
Convention were met in the present case.
- The
Court can agree that it was entirely the applicant's responsibility
to take all reasonable measures to attend the hearing of the
first-instance court. It has not been explained how the applicant
came to make the mistake he did.
- The
case before the Court does not end there even so. The Court cannot
overlook the fact that the single-judge chamber of the Court of
Appeal sitting as President refused the applicant leave to appeal on
the ground that he “[did] not consider
plausible the applicant's statement that his identity details [were]
systematically misused by someone else and that he [had] been
acquitted by the courts several times already because of that”.
The applicant complains about this under Article 6 § 2. The
Court, for its part, considers it more appropriate to deal with the
matter here.
- The
Court reiterates that for the requirements of a fair trial to be
satisfied, the accused, and indeed the public, must be able to
understand the judgment or decision that has been given; this is a
vital safeguard against arbitrariness. As the Court has often noted,
the rule of law and the avoidance of arbitrary power are principles
underlying the Convention (Taxquet v. Belgium [GC], no.
926/05, § 90, 16 November 2010, with further
references). In addition, while courts are not obliged to give
a detailed answer to every argument raised, it must be clear from the
decision that the essential issues of the case have been addressed
(Taxquet, § 91, with further references).
- The
Court accepts that the extract from the applicant's criminal record
contained in the case file and placed before the single-judge
chamber of the Court of Appeal showed a number of convictions.
However, the various acquittals by the District Court of The Hague
(paragraph 14 above), although not mentioned on the extract from the
applicant's criminal record and therefore not before the single-judge
chamber, span a period overlapping the time of the events complained
of.
- The
applicant claimed that his identity had been misused and that he had
been acquitted on that ground several times before. The single-judge
chamber of the Court of Appeal dismissed this ground of appeal as
implausible as the acquittals did not appear in the extract from the
criminal register (paragraph 13 above).
- In
the Court's view, although the grounds for the acquittals are not
stated, they suggest that the applicant's claim that his identity had
been misused ought not to have been discounted without further
examination.
- The
acquittals too being part of the official record, the Court considers
that the single-judge chamber of the Court of Appeal ought to have
been aware of them. As it was, the absence from the case file of this
information meant that the denial of leave to appeal in the present
case could not be based on a full and thorough evaluation of the
relevant factors (see paragraph 37 above).
- There
has, therefore, been a violation of Article 6 § 1 of the
Convention taken together with Article 6 § 3 (c).
III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
- As
mentioned above, the applicant complained of a violation of Article 6
§ 2 of the Convention in that his statement that he had been
acquitted on grounds of mistaken identity had been dismissed as
implausible without further examination. Article 6 § 2 of the
Convention reads as follows:
“2. Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to
law.”
- Having
regard to the finding contained in paragraph 48 above and the
reasoning on which it is based, the Court considers that it is not
necessary to examine the case under Article 6 § 2 as well.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained that Netherlands procedure, in barring
him from lodging an appeal, denied him an effective remedy. He relied
on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- Having regard to its decision concerning Article 6,
the Court takes the view that it does not have to examine the case
under Article 13 as its requirements are less strict than, and are
here absorbed by, those of Article 6 (see, among many other
authorities, Philis v. Greece (no. 1), 27 August 1991, §
67, Series A no. 209; Coëme and Others v. Belgium, nos.
32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 117, ECHR
2000 VII; more recently and mutatis mutandis, Menesheva
v. Russia, no. 59261/00, § 105, ECHR 2006 III).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant did not submit any claim for just satisfaction.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 taken together with Article 6 § 3 (c) of the
Convention;
- Holds that there is no need to examine the
complaints under Articles 6 § 2 and 13 of the
Convention.
Done in English, and notified in writing on 22 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall Section Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the concurring opinion of Judge Ziemele is
annexed to this judgment.
J.C.M.
S.Q.
CONCURRING OPINION OF JUDGE ZIEMELE
I
agree with the reasoning and conclusions of the Chamber as concerns
the violation of Article 6 § 1 taken together with
Article 6 § 3 (c) of the Convention. I do,
however, have some observations to make as concerns the argument
raised by the Government and the corresponding reasoning of the Court
with respect to Article 2 of Protocol No. 7 (paragraphs 30, 35 and
39).
The
case concerns the leave-to-appeal system for minor offences in the
Netherlands. The appeal is available in a limited category of cases
as defined by Article 410a of the Code of Criminal Procedure. The
appeal is not automatic since the article says that: “[...] the
appeal lodged shall only be heard and examined if, in the considered
opinion of the President, this is required in the interests of the
proper administration of justice...” On 27 July 2010
the Human Rights Committee, a treaty-monitoring body of the
International Covenant on Civil and Political Rights (ICCPR), adopted
Views on an individual complaint brought against the Netherlands in
which among other things it stated: “The Committee further
notes that, according to the State party, the President of the Court
of Appeal denied the leave with the motivation that a hearing of the
appeal was not in the interests of the proper administration of
justice.... The Committee considers this motivation inadequate and
insufficient to satisfy the conditions of Article 14 paragraph 5.”
In
the case before the Court leave to appeal was refused based on facts
about which the single-judge chamber of the Court of Appeal did not
have full information (paragraph 47). Refusal of leave to appeal
under such circumstances was seen by the Court to be contrary to fair
trial guarantees in the national legal system, which recognises a
possibility of appeal, albeit limited. The inadequacy of the case
file in the applicant's case gave the Chamber a chance to look at the
leave to appeal from the angle of Article 6, even though Article 6 as
such does not require the States Parties to provide for appeals in
civil and criminal cases. This obligation only emerges in criminal
cases under Article 2 of Protocol No. 7, although exceptions are
permitted.
The
Chamber states that it cannot examine the leave-to-appeal system from
the point of view of Protocol No. 7 or subject it to the same
scrutiny as the HRC precisely because the Netherlands has not
ratified Protocol No. 7 (paragraph 35). I agree with the Chamber
that there may be differences in obligations under different treaties
the Netherlands has ratified and depending on whether the case is
brought to the Human Rights Committee or the European Court of Human
Rights (paragraph 39).
My
problem goes back to another case in which the Grand Chamber, when
asked to explain the rules of interpretation of the Convention in the
light of other rules of international law, arrived at the following
conclusions: “The Court, in defining the meaning of terms and
notions in the text of the Convention, can and must take into account
elements of international law other than the Convention, the
interpretation of such elements by competent organs, and the practice
of European States reflecting their common values. [...] In this
context, it is not necessary for the respondent State to have
ratified the entire collection of instruments that are applicable in
respect of the precise subject matter of the case concerned. It will
be sufficient for the Court that the relevant international
instruments denote a continuous evolution in the norms and principles
applied in international law...” (Demir and Baykara v.
Turkey [GC], no. 34503/97, §§ 85-86, 12 November
2008). It may well be that the Demir and Baykara case
represents an example of unfortunate drafting and that nothing
further beyond the scope of Article 31 § 3 (c) of the Vienna
Convention on the Law of Treaties should be read into it. However, if
we were to follow the literal meaning of what the Grand Chamber said,
it might suggest that in our case, even though the Netherlands has
not ratified Protocol No. 7, since it does provide for a
leave-to-appeal system of sorts the Chamber should have assessed
whether the leave-to-appeal system as such complied with Article 6.
After all, the applicant did complain that the domestic law governing
this procedure was contrary to the Convention (paragraphs 26-27).
I
believe that the outcome in this case, which differs on the facts
from the case examined by the HRC, might not have been any different
had we examined the same facts, as the Court's case-law has accepted
that leave-to-appeal proceedings may comply with Article 6
requirements (paragraph 37), and the Chamber actually takes a
somewhat more substantive look at the Netherlands system (paragraphs
36-37). The problem is really in the wording used by the Chamber in
the instant case and the Grand Chamber in the Demir and Baykara
case concerning the role of non-ratified treaties. I would like to
think that what the Grand Chamber meant when it referred to
non-ratified treaties was those treaties that some States may not
have ratified but that could still indicate the emergence of a
universal or regional customary norm. Where the customary rule turns
out to be different from the Convention provision, at least in its
original form and intent, that rule may indeed affect the subsequent
reading of the Convention provision (see M. Villiger, Commentary on
the 1969 Vienna Convention on the Law of Treaties, Martinus Nijhoff
Publishers, 2009, p. 433). Should not the Chamber have tried to
assess whether there might be a regional custom as concerns
procedural guarantees for the leave to appeal in minor offences
cases, and whether any effect might be discerned in relation to the
scope of Article 6, especially since the Netherlands provides for the
possibility of the leave to appeal and in that sense the difference
between the obligations under Article 6 of the Convention and
Article 14 of the ICCPR is reduced?
