1 BY A JUDGMENT DATED 17 JUNE 1980 WHICH WAS RECEIVED AT THE COURT ON 3 JULY 1980 THE HOGE RAAD ( SUPREME COURT ) OF THE NETHERLANDS REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER THE PROTOCOL OF 3 JUNE 1971 ON THE INTERPRETATION BY THE COURT OF JUSTICE OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS ( HEREINAFTER REFERRED TO AS ' ' THE CONVENTION ' ' ) TWO QUESTIONS AS TO THE INTERPRETATION OF ARTICLE II OF THE PROTOCOL ANNEXED TO THE CONVENTION ( HEREINAFTER REFERRED TO AS ' ' THE PROTOCOL ' ' ).
2 AFTER BEING SUMMONED TO APPEAR BEFORE THE POLITIERECHTER ( MAGISTRATE ) OF THE ARRONDISSEMENTSRECHTBANK ( DISTRICT COURT ), ZUTPHEN ( NETHERLANDS ), FOR DRIVING IN THE NETHERLANDS A VEHICLE EQUIPPED WITH A RADIO-ELECTRICAL TRANSMITTING DEVICE WITHOUT HOLDING THE REQUISITE LICENCE , SIEGFRIED RINKAU , RESIDENT IN THE FEDERAL REPUBLIC OF GERMANY , DID NOT APPEAR AT THE HEARING . HIS COUNSEL ASKED FOR LEAVE TO DEFEND HIM . NOTWITHSTANDING THE OPINION OF THE PUBLIC PROSECUTOR THE MAGISTRATE TOOK THE VIEW THAT THE ACCUSED SHOULD BE ALLOWED TO AVAIL HIMSELF OT THE RIGHT GRANTED BY THE FIRST PARAGRAPH OF ARTICLE II OF THE PROTOCOL AND GAVE HIS COUNSEL LEAVE TO DEFEND HIM . MR RINKAU WAS SENTENCED IN HIS ABSENCE TO A FINE OR FAILING PAYMENT THEREOF TO ONE DAY ' S IMPRISONMENT AND THE RADIO-ELECTRICAL DEVICE WAS ORDERED TO BE CONFISCATED .
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 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?
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GENERAL CONSIDERATIONS
5 ACCORDING TO ARTICLE 65 OF THE CONVENTION THE PROTOCOL FORMS AN INTEGRAL PART THEREOF . THE SCOPE OF THE CONVENTION , WHICH IS DEFINED IN ARTICLE 1 , IS CONFINED TO CIVIL AND COMMERCIAL MATTERS . THE QUESTION TO BE ASKED AT THE OUTSET , THEREFORE , IS WHY A RULE OF CRIMINAL PROCEDURE LIKE ARTICLE II OF THE PROTOCOL CAME TO BE INSERTED IN A CONVENTION ON CIVIL AND COMMERCIAL MATTERS . THAT ARTICLE READS :
' ' WITHOUT PREJUDICE TO ANY MORE FAVOURABLE PROVISIONS OF NATIONAL LAWS , PERSONS DOMICILED IN A CONTRACTING STATE WHO ARE BEING PROSECUTED IN THE CRIMINAL COURTS OF ANOTHER CONTRACTING STATE OF WHICH THEY ARE NOT NATIONALS FOR AN OFFENCE WHICH WAS NOT INTENTIONALLY COMMITTED MAY BE DEFENDED BY PERSONS QUALIFIED TO DO SO , EVEN IF THEY DO NOT APPEAR IN PERSON .
HOWEVER , THE COURT SEISED OF THE MATTER MAY ORDER APPEARANCE IN PERSON ; IN THE CASE OF FAILURE TO APPEAR , A JUDGMENT GIVEN IN THE CIVIL ACTION WITHOUT THE PERSON CONCERNED HAVING HAD THE OPPORTUNITY TO ARRANGE FOR HIS DEFENCE NEED NOT BE RECOGNIZED OR ENFORCED IN THE OTHER CONTRACTING STATES . ' '
6 IN THE REPORT SUBMITTED TO THE NATIONAL GOVERNMENTS AT THE SAME TIME AS THE DRAFT CONVENTION ( OFFICIAL JOURNAL 1979 , C 59 , P . 1 ) THAT EXTENSION TO THE CRIMINAL FIELD IS JUSTIFIED BY REFERENCE TO THE CONSEQUENCES WHICH A JUDGMENT OF A CRIMINAL COURT MAY ENTAIL IN CIVIL AND COMMERCIAL MATTERS IF THOSE CONSEQUENCES THEMSELVES COME WITHIN THE AMBIT OF THE CONVENTION .
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 .
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 .
10 THE QUESTIONS FRAMED BY THE HOGE RAAD OF THE NETHERLANDS MUST BE ANSWERED IN THE LIGHT OF THOSE VARIOUS CONSIDERATIONS .
THE CONCEPT OF AN ' ' OFFENCE WHICH WAS NOT INTENTIONALLY COMMITTED ' '
11 ALTHOUGH THE CONCEPT OF AN ' ' OFFENCE WHICH WAS NOT INTENTIONALLY COMMITTED ' ' IS NOT DEFINED IN THE CONVENTION , IN ORDER TO ENSURE AS FAR AS POSSIBLE THAT THE RIGHTS AND OBLIGATIONS OF THE CONTRACTING STATES AND OF THE PERSONS CONCERNED ARISING FROM THE CONVENTION ARE EQUAL AND UNIFORM , IT MUST NEVERTHELESS BE REGARDED AS AN INDEPENDENT CONCEPT WHICH MUST BE EXPLAINED BY REFERENCE , FIRST , TO THE OBJECTIVES AND SCHEME OF THE CONVENTION AND , SECONDLY , TO THE GENERAL PRINCIPLES WHICH THE NATIONAL LEGAL SYSTEMS HAVE IN COMMON . THAT IS ALL THE MORE NECESSARY WHERE , AS IN THIS CASE , TERMINOLOGICAL DIFFERENCES EXIST BETWEEN THE VARIOUS LANGUAGE VERSIONS OF THE CONVENTION .
12 THE AIM OF THE CONVENTION TO COVER OFFENCES CONNECTED WITH ROAD ACCIDENTS THROUGH ITS USE OF THE CONCEPT OF AN OFFENCE WHICH WAS NOT INTENTIONALLY COMMITTED HAS ALREADY BEEN MENTIONED IN CONNEXION WITH THE OBJECTIVES OF THE CONVENTION . ANOTHER MORE GENERAL GUIDE IS THE FACT THAT BY RESTRICTING THE RIGHT TO BE DEFENDED WITHOUT APPEARING IN PERSON , WHICH IS MADE AVAILABLE TO PERSONS WHO HAVE COMMITTED CERTAIN OFFENCES , THE CONVENTION CLEARLY SEEKS TO DENY THAT RIGHT TO PERSONS BEING PROSECUTED FOR OFFENCES WHICH ARE SUFFICIENTLY SERIOUS TO JUSTIFY ITS DENIAL .
13 IT IS THEREFORE NECESSARY TO ASCERTAIN WHETHER THERE IS A CRITERION FOR CLASSIFICATION WHICH IS COMMON TO THE NATIONAL LEGAL SYSTEMS OF ALL THE CONTRACTING STATES , BY WHICH OFFENCES MAY DE DISTINGUISHED ACCORDING TO THEIR SERIOUSNESS AND ON THE BASIS OF WHICH MOST , IF NOT ALL , OF THE OFFENCES CONNECTED WITH ROAD ACCIDENTS MAY BE CLASSIFIED AMONGST THE LESS SERIOUS OFFENCES .
14 THE NATIONAL LAWS OF MOST OF THE CONTRACTING STATES DISTINGUISH 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 PUNISHABLE , 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 .
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 .
18 THE NETHERLANDS GOVERNMENT POINTS OUT IN ITS OBSERVATIONS THAT THE SCOPE OF THE CONVENTION IS RESTRICTED TO CIVIL AND COMMERCIAL MATTERS . IT CONSIDERS THAT THAT RESTRICTION SHOULD BE BORNE IN MIND WHEN ARTICLE II OF THE PROTOCOL IS CONSTRUED , AS APPEARS FROM THE SECOND PARAGRAPH OF THAT ARTICLE . THE NETHERLANDS GOVERNMENT ACCORDINGLY CONCLUDES THAT THE RIGHT GRANTED TO THE ACCUSED BY THE FIRST PARAGRAPH HAS APPLICATION ONLY IF THE CRIMINAL COURT HAS TO DECIDE A CIVIL CLAIM AT THE SAME TIME .
19 THE COMMISSION DOES NOT DENY THAT THE AIM OF ARTICLE II OF THE PROTOCOL IS TO LAY DOWN A RULE OF CRIMINAL PROCEDURE IN SO FAR AS CRIMINAL PROCEEDINGS MAY HAVE AN EFFECT ON THE ACCUSED ' S INTERESTS AT CIVIL LAW . HOWEVER , HAVING REGARD TO THE FACT THAT A RULE OF CRIMINAL PROCEDURE WHICH IS FOR THE BENEFIT OF THE ACCUSED SHOULD RECEIVE A WIDE INTERPRETATION AND IN VIEW OF THE DIFFICULTY WHICH FREQUENTLY EXISTS , IN THE COMMISSION ' S VIEW , IN DECIDING WHETHER OR NOT CRIMINAL PROCEEDINGS ARE LIKELY TO AFFECT THE ACCUSED ' S INTERESTS AT CIVIL LAW , THE COMMISSION CONSIDERS THAT THE RIGHT GRANTED TO THE ACCUSED BY ARTICLE II OF THE PROTOCOL MUST APPLY IN ALL CRIMINAL PROCEEDINGS .
20 ALTHOUGH IT IS NOT EXPRESSLY PROVIDED BY THE FIRST PARAGRAPH OF ARTICLE II OF THE PROTOCOL THAT THE RIGHT THEREIN GRANTED TO THE ACCUSED APPLIES ONLY DURING CRIMINAL PROCEEDINGS IN WHICH HIS LIABILITY AT CIVIL LAW ( ARISING FROM THE ELEMENTS OF THE OFFENCE FOR WHICH HE IS BEING PROSECUTED ) IS IN QUESTION OR ON WHICH SUCH LIABILITY MIGHT SUBSEQUENTLY BE BASED , IT SHOULD NEVERTHELESS NOT BE FORGOTTEN THAT THAT WAS THE ACTUAL INTENTION BEHIND THE INSERTION IN THE PROTOCOL OF THE PROVISION IN QUESTION . THAT INTENTION PRECLUDES THE RIGHT TO BE DEFENDED WITHOUT APPEARING IN PERSON FROM HAVING APPLICATION IN CRIMINAL PROCEEDINGS IN WHICH THE ACCUSED IS NOT OPEN TO A CIVIL CLAIM IN THE CIRCUMSTANCES DESCRIBED ABOVE .
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 PROSECUTED , IS IN QUESTION OR ON WHICH SUCH LIABILITY MIGHT SUBSEQUENTLY BE BASED .
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
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HOGE RAAD BY JUDGMENT OF 17 JUNE 1980 , HEREBY RULES :
1 . 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 .
2 . 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 PROSECUTED , IS IN QUESTION OR ON WHICH SUCH LIABILITY MIGHT SUBSEQUENTLY BE BASED .
