EHRM, 14-02-2017, nr. 30749/12

The case originated in an application (no. 30749/12) 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 Albert Johannes Hokkeling (‘the applicant’), on 2 May 2012.

The applicant was represented by Mr A.A. Franken, a lawyer practising in Amsterdam. The Netherlands Government (‘the Government’) were represented by their Agent, Mr R.A.A. Böcker, and their Deputy Agent, Ms K. Adhin, both of the Ministry of Foreign Affairs.

The applicant alleged a violation of Article 6 §§ 1 and 3 (c) on the ground that he had not been offered an opportunity to attend the hearing of the appeal in his criminal case in person.

As the seat of the judge elected in respect of the Kingdom of the Netherlands had become vacant in the meantime owing to the departure of Judge Johannes Silvis, the President of the Section appointed Mr Egbert Myjer to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court).

On 26 May 2015 the application was communicated to the Government.

Declares, unanimously, the application admissible;

Holds, by six votes to one, that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;

Holds, unanimously, that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;

Dismisses, unanimously, the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 14 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips

Registrar

Luis López Guerra

President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Myjer is annexed to this judgment.

L.L.G.

J.S.P.

I do not agree with the majority. In my opinion the majority did not sufficiently take into account the very specific circumstances of the present case.

Let me explain. When I was a permanent judge in the Court I would always ask myself: does the proposed outcome feel right to me? If the answer was yes and the proposed reasoning was in conformity with the Court's case-law, I would vote in favour of the proposed outcome without hesitation. If not, I would try to find a reason for my instinctive reaction and, if need be, to find another solution that did not cause me such uneasiness.

In this particular case I agree that the reasoning in the judgment is in line with the general case-law (Hermi v. Italy [GC], no. 18114/02, ECHR 2006-XII) and, at first sight, appears convincing. Still, the outcome does not feel right to me.

My instinctive reaction to the majority's solution has to do with the following. As is the case in many other countries, people in the street are very worried about the possibility of terrorist violence. But the increasing frequency of violent acts and liquidations in the organised drugs scene comes a close second. Gangland murders of this type, mostly in public places and involving the use of heavy firearms, are now reported on a monthly or even a weekly basis.

This case has to be seen against that background. The victim was kidnapped and tortured (one of the rare cases where it could in fact be established that a kidnapped person had been tortured) and his dead body was left at a building site. It was clear that this had to do with organised drugs crime. Apparently a quantity of hashish had been stolen from a gang of criminals; this gang had tried to extort information as to the whereabouts of the stolen hashish from the victim. There came a point when the police had reason to believe that the applicant was heavily involved in this case of kidnapping/torture/infliction of injuries/drugs trafficking.

The applicant was arrested on 11 April 2006. He claimed to be innocent. It turns out in practice that these organised drugs crime cases are the most difficult to solve: suspects tend to invoke their right to remain silent. So it took quite a while before the case was finalised at first instance. The applicant was found guilty and handed a prison sentence of 4 years and 6 months. He was acquitted on one part of the charges. The public prosecutor had sought a prison sentence of 8 years.

Both the applicant and the prosecutor appealed. On appeal, the case of the applicant was considered in parallel with cases against certain other individuals suspected of involvement in the same crimes, and who had appealed as well. In the appeal proceedings the applicant and his (new) counsel asked for several witnesses to be heard. Apparently the Court of Appeal ordered that these witnesses should first be heard by the investigating judge.

On 26 March 2009 the applicant was released in accordance with Article 15 of the Netherlands Criminal Code, since he had served two-thirds of the prison sentence imposed on him by the court of first instance. After his release he appeared at the next hearing in his case, on 18 May 2009. It turned out that some witnesses had still to be heard, and so the hearing in his case (and that of the co-defendants) was adjourned until 27, 29 and 30 October 2009. The applicant was told to be present on that date without further notice. I would add that the very fact that the Court of Appeal had again reserved three days for the final hearing shows that they actually intended to proceed with the case. It goes without saying that reserving three days in the schedule of a court impinges on the working capacity of that court.

To me the crucial point (making the circumstances in this case very exceptional) is as follows.

The applicant was subsequently arrested in Norway on 4 October 2009 in connection with the smuggling of 9 kg of amphetamines and roughly 47 kg of cannabis resin. According to the judgment of the Borgarting Court of Appeal (Norway), which later convicted and sentenced the applicant:

In that connection I would like to make the following two comments.

Firstly, if the arrest in Norway had been connected with ‘old’ suspicions in ‘old’ cases, the situation would have been more or less comparable to that in F.C.B. v. Italy (28 August 1991, Series A no. 208-B) — a judgment on which the majority place heavy reliance as precedent. In general, in such circumstances the applicant would not have incurred any blame for travelling to Norway.

Secondly, had the new suspicion against the applicant been a general one, of a kind where he could easily have denied all involvement, that also would have been a different case. Such lingering doubt would have made it preferable to await the judgment of at least the court of first instance in Norway.

But here the applicant, having been notified in person that he was expected to appear before the Amsterdam Court of Appeal on 27 October 2009, travelled to Norway three weeks before that date to oversee the handover of illegal drugs in person, and he was caught red-handed while transporting these drugs in Norway. That is a situation in which, in my opinion, he himself is totally responsible for not being able to appear on 27 October. And these are circumstances in which the presumption of innocence cannot reasonably prevent any court from finding that the applicant has been arrested under circumstances which fall within his responsibility.

Given that the applicant had been arrested in Norway, his case — and, be it noted, the cases of the co-defendants — were not brought to a conclusion by the Amsterdam Court of Appeal on 27 October 2009 or the following days. At that time the applicant's Dutch lawyer had not yet had access to his client, who was detained in Norway and whose contacts with the outside world were severely restricted. The case was again adjourned, this time until 4 June 2010 — more than seven months later. In the meantime the Advocate-General at the Amsterdam Court of Appeal attempted by all legal means to have the applicant brought to the Netherlands in accordance with the applicable international treaties so that the applicant could at least be present at the adjourned hearing in Amsterdam. That turned out to be impossible. By that time it had, however, been possible for the applicant's Dutch lawyer to make contact with his client. When it was clear that the applicant would not be in any position to come to Amsterdam in person to attend his trial, the Amsterdam Court of Appeal eventually gave a reasoned decision to proceed with the case in his absence. The applicant's counsel conducted the defence (capably and at length). The Court of Appeal held as follows:

Thus the Court of Appeal made it clear that a balancing exercise was necessary, weighing up the interests of the applicant and the interests of society as a whole, together with the interest of proper organisation of the judicial system. And yes, that is what the Supreme Court of the Netherlands has always said, in line with Strasbourg case-law: that in this balancing act, other factors (including the interests of the victim's family) may also be of importance.

It seems that the Court of Appeal additionally considered it important that the cases of the co-accused were also pending. And I might add that, if the Court of Appeal had severed the applicant's case from those of the co-defendants, the demands of impartiality would have made it necessary for an entire new chamber of the Court of Appeal, composed of different judges, to be set up specifically for the case of the applicant.

The Court of Appeal then found the applicant guilty of complicity in causing grievous bodily harm resulting in death, abduction and transporting and possessing an unspecified quantity of drugs, and acquitted him of threatening grievous bodily harm. The Court of Appeal went on to say that the facts thus proven were so shocking and abhorrent that a prison sentence of 8 years (as also sought by the Advocate-General at the Court of Appeal) was appropriate.

Again, this is the kind of case where it was in the interest not just of the victim's next-of-kin, but also of the public at large, that the case should finally be brought to a conclusion.

In the judgment it is suggested that the case bears a resemblance to that of F.C.B. v. Italy (cited above). The Government relied on Medenica v. Switzerland, no. 20491/92, ECHR 2001-VI. Just for the record, Medenica is a case with ‘Case Reports’ status. Since that case is a later case than F.C.B. I quote the principles as set out in Medenica:

As I said before, F.C.B. v. Italy (HUDOC importance level 2) deals with the situation where it transpires that the applicant cannot appear since he is detained elsewhere. And there the Court ruled (§ 35):

However, neither the F.C.B. situation nor the Medenica situation is similar to what happened in the case of the present applicant. In F.C.B. the applicant was acquitted. The prosecution appealed. Years passed before it became clear that the Supreme Court had quashed that judgment and that the case had to be reheard. In the meantime the applicant had moved abroad and was, two years later, arrested for some subsequent crimes. He was still in detention in the Netherlands when the Italian judiciary wanted to reopen the trial.

In Medenica the applicant had managed by his conduct to obtain a judgment in the USA that prevented him from going to Switzerland, where he was supposed to stand trial.

So the lesson to be learned from Medenica is that where a defendant has largely contributed to bringing about a situation that prevented him from appearing at his trial, the Government cannot be blamed for the need ultimately to decide the case in his absence.

In this particular case, the applicant admittedly did not have any interest in getting himself arrested and detained in Norway. It is true that he emphasised that he wanted to be present at his trial in the Netherlands. Nevertheless, he not only largely contributed to the situation that prevented him from appearing before the Amsterdam Court of Appeal (compare Medenica), but in my opinion bears full responsibility for bringing it about. He was the one who, because of his very conduct, was arrested in Norway. Not by chance or because of something he could not have expected, but because he was caught red-handed handling illegal drugs. He got involved in that business at a time that he was fully aware that three weeks later his presence would be required by the Court of Appeal for a rehearing of his case in Amsterdam. The Court of Appeal nonetheless adjourned it again, to see if there was any chance that he might turn up. When that proved impossible they pressed ahead with the case, acknowledging that the main rule was that the applicant should be able to be present at the hearing, but also reflecting that this was not an absolute right and that there came a time when it was necessary to weigh other interests in the balance. The Court of Appeal also took into account the fact that the applicant had been present at the beginning of the trial, had named the witnesses he wanted to have examined, and had been in contact with his Dutch lawyer.

In my opinion the line of reasoning in the present judgment should accordingly have been, firstly, that the applicant himself was not largely but fully responsible for bringing about a situation that prevented him from appearing before the Amsterdam Court of Appeal; secondly, that the Court of Appeal nevertheless tried to see if there were still legal possibilities (based on international treaties) of having him brought to the Netherlands and for that reason again adjourned the case; thirdly, that the Court of Appeal took into consideration the fact that at least the applicant had been allowed contact with his Dutch lawyer in Norway.

To put it differently, the Amsterdam Court of Appeal did everything it could to guarantee the Article 6 rights of the accused as far as possible. The only thing it did not do was order yet another adjournment until the applicant was finally able to leave Norway and return to the Netherlands.

I am fully aware that crooks have human rights too. Even crooks who are suspected of having abducted and tortured a victim and left him for dead on a building site. But that does not mean that this applicant has an absolute right to take control of the way the proceedings against him should be handled and of the time when hearings should take place. It was his own behaviour which prevented him from attending a court hearing of which he had been duly notified. It had nothing to do with force majeure or with anything unexpected. The only thing is that he apparently did not expect the Norwegian police to catch him red-handed.

And although this may sound slightly exaggerated, I repeat that the judgment does not feel right to me. Worse still, I will have great difficulty explaining to others that in the particularly egregious circumstances of this case, Article 6 has been violated.