C-157/80

JUDGMENT OF 26. 5. 1981 — CASE 157/80

Article II of the aforementioned liability at civil law, arising from the Protocol, applies in all criminal elements of the offence for which he proceedings concerning offences is being prosecuted, is in question or which were not intentionally on which such liability might sub- committed, in which the accused's sequently be based.

In Case 157/80

REFERENCE to the Court under the Protocol of 3 June 1971 on the in- terpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters by the Hoge Raad [Supreme Court] of the Netherlands for a pre- liminary ruling in the criminal proceedings against

SIEGFRIED E W A L D R I N K A U

on the interpretation of Article II of the Protocol annexed to the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters,

Facts and Issues

JUDGMENT OF 26. 5. 1981 — CASE 157/80

be understood in a narrower sense as second question which it believes makes relating only to offences in the consideration of the first question definition of which there is reference unnecessary. to some element of guilt (culpa) on the part of the offender? In its opinion the right to be defended, 2. If the conditions set out in Article II provided by Article II of the Protocol of the said Protocol are fulfilled, annexed to the Convention on Juris- does the right granted to 'the diction and the Enforcement of Judg- accused' by that article apply ments in Civil and Commercial Matters without restriction, or does the of 27 September 1968 is given to the accused person have that right only accused person only in so far as he must where he has to defend himself defend himself against a civil action against a civil claim made in the brought in the context of criminal relevant criminal proceedings, or at proceedings or at any rate in so far as his any rate where the interests of the interests under civil law are affected by accused under civil law are affected the outcome of the criminal proceedings. by the outcome of the criminal proceedings?" The first basis for the solution which it proposes is seen by the Netherlands Pursuant to Article 5 of the Protocol of Government in the origin of the 3 June 1971 on the interpretation by the provision in question. Article II of the Court of Justice of the European Protocol is in fact based on Article 2 of Communities of the Convention of the Protocol annexed to the Treaty 27 September 1968, the Netherlands between the Kingdom of the Nether- Government and the Commission of lands, the Kingdom of Belgium and the the European Communities submitted Grand Duchy of Luxembourg on written observations in accordance with Jurisdiction, Bankruptcy and the Validity Article 20 of the Protocol on the Statute and Enforcement of Judgments, Ar- of the Court of Justice of the European bitration Awards and Authentic In- Communities. struments.

or commercial matters, Article II of the Protocol annexed to the Convention of Protocol annexed to the Convention of 1968. It acknowledges that they go back 1968 should be considered on the basis to Article II of the Protocol to the of the Convention itself which, by Article Benelux Treaty which however had a 1, applies to civil and commercial matters wider aim than to allow a foreigner only. That is clear from the second charged with an offence not to appear paragraph of Article II of the Protocol and to be represented in criminal annexed to the Convention, which proceedings in which the court also has relates exclusively to the civil action on to give a decision on matters of civil law. which the criminal court has to rule. In the Commission's opinion that right to be represented extends to any criminal proceedings which might have an effect on any civil action, even one brought The Netherlands Government further later, because of the conclusive force of points out that the second paragraph the judgment in the criminal case. That indicates that the provision in question interpretation is moreover the one contains an additional reason for not adopted in the general report on the recognizing and not enforcing judgments Convention of 1968 and in the report of delivered in another contracting State. the Benelux Study Commission on the Benelux Treaty. In this context the Commission points out that in this case the criminal proceedings seem to have In conclusion it proposes that the Court had consequences in civil law in so far as should reply to the Hoge Raad as they led to the confiscation of the follows: transmitting device in question.

should be applied each time an accused for which the legal definition does not is prosecuted for any offence about require the existence of specific intent which there is no question, in the legal with respect to any element thereof in definition, of any intent. It seems in fact order that there may be an offence. that the draftsmen of the Protocol annexed to the Convention basically had in mind criminal proceedings brought subsequently to a road traffic accident 2. The right accorded by Article II of for minor offences whose definitions do the Protocol annexed to the not indicate that an element of intent is Convention of 1968 to the person involved. concerned is unconditional in the sense that it is not necessary for civil interests to be affected in any respect by the outcome of the criminal case. As regards the second question on whether the application of Article II of the Protocol annexed to the 1968 Convention depends on any civil interest, the Commission emphasizes that a provision of criminal procedure is III — O r a l p r o c e d u r e involved and argues that it is appropriate to apply the general principle of law by which any rule of criminal procedure which is for the benefit of the accused At the sitting on 24 February 1981 oral must be widely construed and in his argument was presented on behalf of favour. Therefore the application of Siegfried Ewald Rinkau, represented by Article II of the Protocol should not be Mr Wijnen, and the Commission, made to depend upon the existence in represented by J. L. W. Sillevis Smitt, the trial of a civil interest. As the Advocate at the Hoge Raad of the Commission explained in the first part of Netherlands. At that sitting Mr Rinkau its observations, the history of that stated that he shared the views expressed provision moreover shows that it was not by the Commission in its written obser- designed solely for a case in which a vations. criminal court is also taking a decision on the civil action at the same time.

3 Following an appeal by the Public Prosecutor, the Gerechtshof [Regional Court of Appeal], Arnhem, held in its interlocutory judgment of 28 August 1979 that Article II of the Protocol had application in all criminal proceedings concerning offences which were not intentionally committed but that the offence with which the accused was charged was not such an offence. The Gerechtshof accordingly decided not to grant the accused's Counsel leave to defend him in his absence and, as regards the substance of the case, by a judgment of 11 September 1979 upheld the judgment given at first instance.

4 Mr Rinkau appealed in cassation against those two judgments. He claimed that Article II of the Protocol had been infringed. The Hoge Raad decided

JUDGMENT OF 26. 5. 1981 — CASE 157/80

before making any further ruling to refer the following questions to the Court for an interpretation:

" 1 . Must the expression 'an offence which was not intentionally committed' appearing in the first paragraph of Article II of the said Protocol be understood as including any offence for which the legal definition does not require specific intent in regard to any element of the offence, or should the expression be understood in a narrower sense as relating only to offences in the definition of which there is reference to some element of guilt (culpa) on the part of the offender?

2. If the conditions set out in Article II of the said Protocol are fulfilled, does the right granted to 'the accused' by that article apply without restriction, or does the accused person have that right only where he has to defend himself against a civil claim made in the relevant criminal proceedings, or at any rate where the interests of the accused under civil law are affected by the outcome of the criminal proceedings?"

7 The first paragraph of Article II of the Protocol appears to have been the transposition into the Convention of Article II of the Protocol annexed to the Treaty between Belgium, the Netherlands and Luxembourg on Jurisdiction, Bankruptcy and the Validity and Enforcement of Judgments, Arbitration Awards and Authentic Instruments. That provision in fact provides :

"Without prejudice to any more favourable provisions of national laws the nationals of any one of the three countries who are resident in their country may appear before the courts of the other two countries by special attorney if they are being prosecuted there for an offence other than one which was intentionally committed".

The commission responsible for drawing up the draft Benelux Treaty explained in its report that it believed that it was "essential" that the accused "should be able to conduct his defence during the criminal stage of the proceedings" without having to appear in person.

8 That same reason is also cited in the report on the Brussels Convention in connexion with Article II of the Protocol annexed to the Convention. However, that right is conferred by the Convention only on accused persons being prosecuted for an "offence which was not intentionally committed". That concept is not further defined or clarified in the Convention. However, the report does say that it "includes road accidents" which thus appear to be a particularly important area of application of Article II of the Protocol.

JUDGMENT OF 26. 5. 1981 — CASE 157/80

9 It is necessary to stress once more that, as Article II expressly provides, the right granted to the accused person to be defended without appearing in person does not prejudice the court's power to order appearance in person. If, notwithstanding such an order, the accused person does not appear, the court may deliver judgment without granting the accused's Counsel leave to defend him. The result of the absence of a defence, according to the second paragraph of Article II of the Protocol, is that a judgment given in the civil action need not be recognized or enforced in the other contracting States.

1 4 The national laws of most of the contracting Statesdistinguish in one way or another between offences committed intentionally and those not so committed. Even though that distinction may lead to the classification of offences into categories of which the content may vary appreciably from one legal system to another, it still serves the aforementioned purpose.

15 Whereas offences which were intentionally committed, if they are to be pun- ishable, require an intent to commit them on the part of the person concerned, offences which were not intentionally committed may result from carelessness, negligence or even the mere objective breach of a legal provision. They are therefore, first, generally less serious in nature and, secondly, cover most offences connected with road accidents which are to be ascribed to carelessness, negligence or the mere actual breach of a legal provision.

16 Consequently the answer to the first question of the Hoge Raad must be that the expression “an offence which was not intentionally committed” within the meaning of Article II of the Protocol annexed to the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters should be understood as meaning any offence the legal definition of which does not require, either expressly or as appears from the nature of the offence defined, the existence of intent on the part of the accused to commit the punishable act or omission.

JUDGMENT OF 26. 5. 1981 — CASE 157/80

The second question

17 The Hoge Raad asks in the second place whether the right granted to the accused by Article II of the Protocol has application in all criminal proceedings which affect the accused's interests at civil law or only in those in which a criminal court has to decide a civil claim at the same time.

RINKAU

21 The answer to the second question of the Hoge Raad should therefore be that the accused's right to be defended without appearing in person, granted by Article II of the Protocol annexed to the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, applies in all criminal proceedings concerning offences which were not intentionally committed, in which the accused's liability at civil law, arising from the elements of the offence for which he is being pros- ecuted, is in question or on which such liability might subsequently be based.

Costs

22 The costs incurred by the Government of the Netherlands and the Commission which have submitted observations to the Court are not recoverable. As the proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

Delivered in open court in Luxembourg on 26 May 1981.

A. Van Houtte J. Mertens de Wilmars Registrar President

O P I N I O N OF MR ADVOCATE GENERAL REISCHL DELIVERED O N 8 APRIL 1981 1

Mr President, Whilst a licence for the possession and Members of the Court. use of such a device is required in the Federal Republic of Germany, it appears This reference concerns a German that the accused did have one. No action national, a resident of the Federal was taken against him when he crossed Republic of Germany, who was the border between the Federal Rebublic summoned before the Politierechter and the Netherlands. What is more, the [Magistrate], Zutphen (Netherlands), for device was switched off at the time in driving on 10 March 1977 in the District question, the car aerial was retracted and of Aalten a vehicle equipped with a tne microphone lay on the back seat. radio-electrical transmitting device without possessing the licence which is required for that purpose in the The accused was not ordered to appear Netherlands. in person and he did not appear at the 1 — Translated from the German.