Trial without the personal appearance of the accused, who explicitly resigned from this right! Non-violation of a fair trial
JUDGMENT
Dijkhuizen v. The Netherland 08.06.2021 (app. no. 61591/16)
SUMMARY
Fair trial. Explicit and free waiver of his guarantees.
The applicant was arrested in the Netherlands for drug trafficking and sentenced at first instance to nine (9) years in prison. He appealed and the restrictive condition of appearing at the police station and before the court was imposed when deemed necessary. Prior to his appeal, he was arrested in Peru for the same offense and the state refused to extradite him in order to appear in person during the appeal. He filed a complaint for breach of the fair trial because his appeal was heard in the Netherlands without his personal appearance.
The Cout noted that in the Netherlands participation in a trial and via teleconference is planned.
It also pointed out that neither the letter nor the spirit of Article 6 of the ECHR prevents a person from voluntarily or implicitly waiving the right to a fair trial as long as it is clearly demonstrated that it does not run counter to the public interest and the accused is able to predict the consequences of his resignation.
In the present case, it found that the applicant’s refusal to appear in person had been publicly stated twice by his lawyer in court, and that he had not indicated any public interest which would be affected by his resignation.
The ECtHR ruled that the case was lawfully adjudicated without the applicant appearing in person and found no violation of Article 6 § 1 of the ECHR.
PROVISION
Article 6 par.1
PRINCIPAL FACTS
The applicant, Ment Floor Dijkhuizen, is a Netherlands national born in 1966.
On 13 March 2008 the applicant was convicted, along with several co-accused, and sentenced to
nine years’ imprisonment for the smuggling of 1,623 kg of a substance containing cocaine into the
Netherlands. He appealed against that conviction.
Following an adjournment, appeal proceedings resumed on 25 November 2013. However, the
applicant had in the meantime been arrested in Peru, despite an order to make himself available to
the police or the courts in the Netherlands when necessary. He was unable to attend hearings in
person. His conviction was upheld on 21 November 2014 but his sentence was reduced to seven
years and six months’ imprisonment.
Relying on Article 6 (right to a fair trial), the applicant complains that he was prevented from
attending the appeal hearing in his criminal case, whether in person or by videoconference,
impinging on his defence rights.
THE DECISION OF THE COURT…
Turning to the facts of the present case and taking into account the particular circumstances, the Court accepts without question that the applicant, who was detained as a criminal suspect in Peru, was unable to return to the Netherlands to physically attend the hearing of the Court of Appeal as he might have wished.
The Court observes in this respect that the Government state that Peruvian law prevented the extradition or temporary surrender to foreign powers of persons who were detained as criminal suspects in Peru itself. They base their statement on information obtained by a liaison officer in Peru from a Peruvian public prosecutor . The applicant relies heavily on the Advocate General’s failure to seek a formal decision on extradition or mutual legal assistance but does not attempt to deny that this information is correct. Accordingly, although a formal decision by the competent Peruvian authority would have dispelled all possible doubt, the Court is satisfied that for reasons of Peruvian law it was not possible at the relevant time to obtain the cooperation of the Peruvian authorities with a view to securing the applicant’s physical presence, from which it follows that a formal request would have been pointless. It should be noted in this regard that the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, referred to by the applicant, in its Articles 6 § 5 and 7 § 15 d) permits the requested state to refuse extradition or mutual legal assistance, respectively, for reasons based on its own domestic law. Consequently, it cannot be said that the Netherlands authorities did not display due diligence in pursuing the possibilities of international legal assistance.
In the circumstances, and also taking into account that the proceedings at issue were part of a substantial and complex criminal trial in which seven suspects were involved who all resided in different countries at that time (see paragraphs 6 and 8 above), the Court therefore takes the view that the Court of Appeal was entitled to substitute a hearing in which the applicant participated by videoconference – as permitted by domestic law and indeed, in principle, by Article 6 of the Convention– for a hearing at which the applicant could be physically present. It follows that there was a realistic option open to the applicant to take part in the hearing of his appeal.
It is the position of the Government that the applicant validly waived his right to take part in the hearing by videoconference.
As the Court has held on many occasions, neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. A waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Furthermore, it must not run counter to any important public interest.
Turning to the facts of the present case, the Court cannot but have regard to the applicant’s initial refusal – as stated by his counsel at the Court of Appeal’s hearing of 25 November 2013 – to cooperate in any hearing by videoconference, whether as a witness or as an accused. The Court further notes that the applicant’s consent to be heard by videoconference, communicated by his counsel on 16 October 2014, related only to his giving evidence as a witness in the proceedings against one of his co-accused; the applicant did not withdraw his refusal to participate by videoconference in his own case. Even as late as the opening of the appeal hearing on 20 October 2014 the applicant’s counsel restated this refusal on the applicant’s behalf. Only at the close of the hearing, on 29 October 2014, did the applicant’s counsel announce that the applicant had changed his position and was prepared to take part in the hearing by videoconference.
In the Court’s opinion, the applicant’s repeated and unambiguous refusal – which was maintained over a period of eleven months, until the closing address of the appeal hearing – cannot be construed otherwise than as a waiver of the right to take part in the hearing in his own case. Moreover, since the applicant’s refusal was twice stated by his counsel in open court, it cannot be found that this waiver was not attended by guarantees commensurate with the importance of the right thus waived. Finally, the applicant has not pointed to any public interest, let alone any important one, that would be affected by his waiver.
In the circumstances of the present case, therefore, the Court of Appeal was entitled to disregard the request made by the applicant’s counsel in his closing speech to prolong the proceedings yet again so that the applicant could participate by videoconference.
This conclusion makes it unnecessary for the Court to address the parties’ further arguments, notably the Government’s argument that by travelling to Peru of his own free will, the applicant had contributed to creating the impossibility to attend the hearing in person.
There has accordingly been no violation of Article 6 of the Convention.
