THIRD SECTION

DECISION

Application no. 31898/04 
by Eldrich Hemenegilo Bicento CHIRINO 
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 4 May 2006 as a Chamber composed of:

Mr J. Hedigan, President
 Mr L. Caflisch
 Mr C. Bîrsan
 Mr V. Zagrebelsky
 Mr E. Myjer
 Mr David Thór Björgvinsson, 
 Mrs I. Ziemele, judges
and Mr V. Berger , Section Registrar,

Having regard to the above application lodged on 1 September 2004,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Eldrich H.B. Chirino, is a Netherlands national who was born in 1984 and lives in Maastricht. He is represented before the Court by Mr J.W. Heemskerk, a lawyer practising in Maastricht.

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

On 12 March 2004, the applicant was arrested and placed in police custody (inverzekeringstelling) on suspicion of narcotic offences. On 15 March 2004, he was brought before the investigating judge (rechter-commissaris) at the Maastricht Regional Court (arrondissementsrechtbank), who ordered the applicant’s detention on remand (inbewaringstelling) for a maximum period of ten days.

On 18 March 2004, after having heard in chambers (raadkamer) the applicant who was assisted by a lawyer, the Maastricht Regional Court ordered the applicant’s further detention on remand (gevangenhouding) for a period of 30 days. On 15 April 2004, after having heard in chambers the applicant who was assisted by a lawyer, the Maastricht Regional Court prolonged the applicant’s further detention on remand by thirty days.

On 13 May 2004, the Maastricht Regional Court examined the public prosecutor’s request for a further prolongation by thirty days of the applicant’s further detention on remand. It noted that the applicant had indicated in writing on 12 May 2004 that he waived his right to be heard before the Regional Court on the prolongation request and that, consequently, he would not appear on 13 May 2004. This written waiver does not mention his lawyer.

The Regional Court, by decision of 13 May 2004 and after having refused the applicant’s lawyer access to the hearing in chambers as the applicant had waived his right to be heard, prolonged the applicant’s further detention on remand by thirty days. On the same day, the applicant’s lawyer filed an appeal against this decision with the ‘s-Hertogenbosch Court of Appeal (gerechtshof), seeking to challenge the decision of the Regional Court to refuse him access to the hearing in chambers of 13 May 2004.

By decision of 17 June 2004, after having heard the applicant who was assisted by his lawyer, the Court of Appeal rejected the applicant’s appeal of 13 May 2004 and upheld the impugned decision. No further appeal lay against this decision.

On 6 July 2004, the Maastricht Regional Court convicted the applicant and sentenced him to ten months’ imprisonment of which four months suspended. As the applicant did not file an appeal against this judgment, the criminal proceedings against him ended with this ruling.

The applicant was released from detention on an unspecified date.

COMPLAINTS

The applicant complained under Article 5 § 4 and Article 6 § 1 of the Convention that his lawyer was denied access to the hearing in chambers on (a prolongation of) his pre-trial detention and thus was deprived of the possibility to make submissions for the defence.

THE LAW

On 8 December 2005, the Court informed the applicant’s representative Mr Heemskerk that notice of the application had been given to the respondent Government. According to information submitted by Mr Heemskerk on 16 February 2006 and 27 March 2006, he had been unable to re-establish contact with the applicant since the latter’s release from detention.

The Court is of the opinion that the applicant’s failure to inform his representative of his current whereabouts must be taken as indicating that he has lost interest in pursuing his application. Although it is true that the applicant did authorise Mr Heemskerk to represent him in the proceedings before the Court, it considers that this authority does not by itself justify pursuing the examination of the case. Given the impossibility of establishing any communication with the applicant, the Court considers that Mr Heemskerk cannot now meaningfully pursue the proceedings before it (see, mutatis mutandis, Sevgi Erdoğan v. Turkey (striking out), no. 28492/95, 29 April 2003 and Ali v. Switzerland, judgment of 5 August 1998, Reports of Judgments and Decisions 1998-V, p. 2149, § 32).

That being so, the Court finds that further examination of the case is not justified. Consequently, having regard to Article 37 § 1 (a) of the Convention, the Court concludes that the applicant has lost interest in his application and no longer intends to pursue it before the Court. 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 examination of the application to be continued. Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Vincent Berger John Hedigan 
 Registrar President

CHIRINO v. THE NETHERLANDS DECISION


CHIRINO v. THE NETHERLANDS DECISION