AS TO THE ADMISSIBILITY OF
Application No. 32779/96
by A.L.J.G., L.C.M.G. and H.S.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 9 August 1996 by
A.L.J.G., L.C.M.G. and H.S. against the Netherlands and registered on
26 August 1996 under file No. 32779/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Dutch nationals, born in 1949, 1950 and 1950
respectively, and reside in the Netherlands. In the proceedings before
the Commission, the applicants are represented by Ms H.H.M. van Dijk
and Mr G.G.J. Knoops, both lawyers practising in the Netherlands.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
Following an investigation by the Fiscal Intelligence and
Investigation Department (Fiscale Inlichtingen en Opsporingsdienst,
"FIOD") and a preliminary judicial investigation (gerechtelijk voor-
onderzoek) in the course of which, inter alia, the administration of
a number of companies with limited liability owned by the first and
second applicants were seized, charges were brought against the
applicants and one other person, in four separate sets of criminal
proceedings, in relation to unlawful importation of meat from Poland
into the European Union and the sale of this meat in the European Union
as originating from the European Union.
On 20 August 1992, the Regional Court (Arrondissementsrechtbank)
of 's-Hertogenbosch, following adversarial proceedings in which a
hearing was held on 6 August 1992, convicted the third applicant of
being an accessory to the commission of fraud and of being a member,
as a founder and person exercising control, of an organisation whose
aim is the commission of offences and sentenced him to three years'
imprisonment under deduction of the time spent in pre-trial detention.
In two separate judgments of 9 November 1992, the Regional Court
of 's-Hertogenbosch, following adversarial proceedings in which
hearings were held on 6 August 1992 and 26 October 1992, convicted the
first and second applicants of repeated commission of fraud by a legal
person under the orders and direction of the applicants and of being
a member, as a founder and person exercising control, of an
organisation whose aim is the commission of offences.
The first and second applicants were each sentenced to four years
and six months' imprisonment under deduction of the time spent in pre-
trial detention and the payment to the Netherlands State of 3.200.000
Dutch guilders corresponding to the estimated value of the proceeds of
the acts of which they had been found guilty.
All applicants filed an appeal against their respective
convictions with the Court of Appeal (Gerechtshof) of 's-Hertogenbosch.
The public prosecutor also filed an appeal against the judgment in the
case of the third applicant.
On 9 February 1993, a hearing in the third applicant's case was
held before the Court of Appeal. The Court decided to seek the evidence
of the French witness Barbottin who had allegedly bought meat from the
third applicant.
On 19 March 1993, a hearing took place before the Court of Appeal
in the first and second applicants' respective cases. With the parties'
consent, the proceedings against the first and second applicant were
dealt with simultaneously without formally joining both sets of
proceedings. The defence requested the Court to summon a number of
witnesses. After deliberating, the Court of Appeal decided to make,
together with the defence, a selection of the proposed witnesses.
Following consultations the Court decided to summon as witnesses the
German veterinaries Lokhan, Moniac, Heinicke, Schönhert, Albrecht,
Stolpe, Greupner, Dierke, Ekenter, Spiss and Valdor in relation to
health certificates, decided to order the hearing by an investigating
judge (rechter-commissaris) of the Polish witnesses Badowski, Trimpka,
Stolik, Zaremka, Beltkowski and Czernie in relation to the weighing of
cattle, the German witnesses Hahn, Harnyss, Koslitz and Netwick in
relation to the sale of cattle, as well as the French witness Barbottin
and the Spanish witnesses San Pedro and Ondras.
The Court of Appeal rejected the request by the defence to order
an investigation into the authenticity of Spanish customs stamps as the
Spanish customs authorities had already indicated sufficiently clearly
the obvious differences between the stamps on the T1 documents
involved and the official stamps used by the Spanish customs
authorities. The Court of Appeal further ordered that the documents of
the commission rogatory in another set of related criminal proceedings
and the Dutch translation of the interrogation of Mr Barbottin by the
French customs authorities be joined to the applicants' case-file.
Also on 19 March 1993, the Court of Appeal held a hearing in the
case of the third applicant. The prosecution informed the Court of
Appeal that the address of the witness Barbottin had not yet been
verified by the French authorities, but that permission had been
obtained for a hearing in France of this witness by the Dutch
investigating judge. The defence maintained its request that this
witness be heard. The Court decided to proceed with the attempts to
hear this witness. In reply to the third applicant's request to hear
this witness before the Court of Appeal, the President of the Court of
Appeal informed him that the law did not provide for a possibility to
secure the attendance of this witness before the Court of Appeal.
On 15 June 1993, with the parties' consent, the Court of Appeal
held a simultaneous hearing in the cases of all applicants without
formally joining the respective proceedings.
In the third applicant's case, the Court of Appeal heard the
English witness Haste and the witness Badowski. The witnesses Albrecht,
Heinicke and Moniac had failed to appear. After deliberating, the Court
of Appeal decided not to hear the witnesses Malewski, Masur and Wernik.
It stated on this point that it was unclear what these witnesses could
declare about the facts with which the third applicant had been charged
as, insofar as it appeared from the written evidence and the
investigation before the Court of Appeal, the Polish regulations had
been complied with and the Polish documents were in order. The facts
held against the applicant concerned fraud committed in Germany.
In the first applicant's case, the Court of Appeal rejected the
request by the defence, opposed by the prosecution, to add the
statement given by the English witness Haste to the case-file without
further questions to this witness. The Court held on this point that
a request to add a witness to the list of witnesses to be heard should
be made timely. It did however consider the course of action proposed
by the defence - i.e. first to listen to a witness statement given in
another case which is being dealt with simultaneously yet formally
separated, and subsequently, if this statement is convenient, to
request the trial court to place this witness on the witness list in
its own case under the explicit mention that no further questions will
be put to this witness - to be contrary to the principles of proper
conduct of proceedings (beginselen van goede procesorde).
The Court of Appeal heard the third applicant, the witnesses
Badowski and Valdor. The witnesses Albrecht, Heinicke and Moniac had
failed to appear. After having deliberated the Court of Appeal decided
not to hear the Polish witnesses Malewski, Masur and Wernik on the same
grounds as stated in the third applicant's case.
The Court further ordered that the witnesses Albrecht, Heinicke,
Moniac, Hahn and Harnyss, Koslitz and Netwick be summoned and ordered
the investigating judge to hear the German witnesses Albrecht, Heinicke
and Moniac. It further requested the defence, where the results of the
investigating judge's activities would give rise to it, to inform the
Court of Appeal timely whether the summoning of these witnesses to
appear before the court could be cancelled.
In the second applicant's case, the Court of Appeal rejected the
request of the defence to add the statement of the English witness
Haste on the same grounds as stated in the first applicant's case. It
heard the third applicant, the witnesses Badowski and Valdor. The
witnesses Albrecht, Heinicke and Moniac had failed to appear. After
having deliberated the Court of Appeal decided not to hear the Polish
witnesses Malewski, Masur and Wernik on the same grounds as stated in
the third applicant's case.
The Court further ordered that the witnesses Albrecht, Heinicke,
Moniac, Hahn, Harnyss, Koslitz and Netwick be summoned and ordered the
investigating judge to hear the German witnesses Albrecht, Heinicke and
Moniac. It further requested the defence, where the results of the
investigating judge's activities would give rise to it, to inform the
Court of Appeal timely whether the summoning of these witnesses to
appear before the court could be cancelled.
Further hearings were held before the Court of Appeal on
5 October 1993 and on 2 November 1993.
On 26 January 1994, a further simultaneous hearing in the
applicants' cases was held before the Court of Appeal. In the cases of
the first and second applicants, the defence informed the Court of
Appeal that all witnesses had been heard. The Court heard the
applicants, whereas the President of the Court of Appeal summarised
certain written evidence submitted and it heard pleadings by both the
prosecution and the defence.
In the third applicant's case, the Court of Appeal granted the
request of the defence to add the witness Van Dam to the list of
witnesses, the President summarised certain written evidence, and the
Court heard the witness Van Dam. After the hearing of Mr Van Dam, the
defence informed the Court of Appeal that all witnesses had been heard.
The Court of Appeal further heard pleadings by the parties.
On 27 January 1994, final submissions in the applicants'
respective cases were made to the Court of Appeal which subsequently
closed its investigation and set a date for the pronouncement of its
judgment in the respective cases.
In its two separate judgments of 10 February 1994 in the first
and second applicants' case, the Court of Appeal quashed the Regional
Court's judgment of 9 November 1992, accepted the defence's objections
against the charges relating to events before 3 October 1990, rejected
the defence's plea of nullity as regards the charges, rejected the
defence's argument that the prosecution should be declared inadmissible
on grounds of violated principles of proper proceedings, acquitted both
applicants of a number of charges, convicted them of participation in
the repeated commission of fraud by a legal person under their orders
and direction and of belonging to an organisation whose aim is the
commission of offences. It sentenced the first and second applicants
to four years' imprisonment under deduction of the time spent in pre-
trial detention and payment of a fine in the amount of 500.000 Dutch
guilders. In a separate judgment of the same date, the Court of Appeal
rejected the prosecution's request to order each of the first and
second applicants to pay to the Netherlands State an amount of
3.200.000 Dutch guilders in order to remove unlawfully obtained gains.
In its judgment of 10 February 1994 in the third applicant's
case, the Court of Appeal quashed the Regional Court's judgment of
20 August 1992, accepted the defence's objections against the charges
relating to events before 3 October 1990, rejected the defence's plea
of nullity as regards certain charges, rejected the defence's argument
that the prosecution should be declared inadmissible on grounds of
violated principles of proper proceedings, acquitted the applicant of
a number of charges, convicted him of participation in the repeated
commission of fraud by a legal person under his direction and of
belonging to an organisation whose aim was the commission of offences.
It sentenced the third applicant to four years and six months'
imprisonment under deduction of the time spent in pre-trial detention.
In their respective convictions of the applicants, the Court of
Appeal used in evidence:
- the minutes (proces-verbaal) of two FIOD officials and one
official of the General Inspection Service of the Dutch Ministry
of Agriculture, Nature Conservancy and Fisheries containing the
methods and findings of the preliminary judicial investigation
of a number of companies transporting meat from Poland through
EEC territory;
- a written statement of the Deputy Director of the Spanish
Ministry of Economic Affairs and Finances on the differences
between authentic Spanish customs stamps and stamps found on a
number of T1 documents;
- findings of a delegation of the European Commission of the EEC
as regards the existence of the alleged final destination of the
meat in Tunisia i.e. the company SOC Smaroc and the existence of
any meat imported via one of the harbours within the EEC;
- findings of the Dutch Attaché for Agricultural Affairs in Algeria
as regards alleged importation of Polish meat in Algeria;
- findings of officials of the Dutch Ministry of Agriculture,
Nature Conservancy and Fisheries as to the public health risks
of unlawful importation and sale of meat from Eastern Europe;
- several documents seized from the administration of the companies
involved;
- several documents, including T1 and T2 documents, invoices, bills
of lading and receipts;
- information from the General Inspection Department confirming the
registration of a number of vehicles involved;
- the findings of a police investigation into a number of specific
transports involving specific vehicles;
- several tachometer disks from vehicles involved; and
- statements made in the course of the investigation and subsequent
proceedings by the applicants and a fourth accused, statements
by the witnesses Dancewicz, Hahn, Harnyss, Heynickx, Kaddatz,
Koslitz, Mühl, Netwick, Valdor, Van Boekel, Van Tienen,
Weigergangs, the truck drivers or truck drivers' assistants
Bergmans, Bevers, Geers, Langens, Methorst, Van Deurzen, Van de
Wakker, Van Halder, Vos, and Vos-Timmermans.
The Court of Appeal rejected the objection raised by the defence
that the statements of the truck drivers had been unlawfully obtained.
It also rejected the argument that these statements were not reliable
since they had been given under pressure. The Court of Appeal did not
find it established that unacceptable pressure had been exerted on
these witnesses when they gave their statements and, noting that none
of them had withdrawn any statement but merely altered more or less
important elements in their account, found it plausible that any
discrepancies between their statements given to the police and
subsequently to the investigating judges could be explained by the
effects of the lapse of time between these two events and possible
external influences between these two questionings.
As regards the differences in the weight figures stated on the
various documents, the Court of Appeal did not find it established how
these weights had been determined, but considered it plausible that
these weights had, in general, been estimated.
As regards the defence's objections against the T-documents
submitted, the Court of Appeal accepted the objection for a large
number of documents, but not all of them. As regards a number of
documents the Court of Appeal found it established that, where the
vehicle registration number on these documents did not correspond to
a car owned by either the first or second applicant, this was due to
an obvious clerical error in that it was not plausible that entire
loads of cows had been transported in an Opel Kadett or a Nissan
Vanette.
On 21 February 1995, each of the applicants filed an appeal in
cassation, which is limited to points of law, with the Supreme Court
(Hoge Raad) against the judgment of the Court of Appeal in his
respective case. The first applicant submitted 29 points in cassation
consisting of about 200 complaints. The second and third applicants
each submitted 28 points in cassation consisting of about
200 complaints.
Upon request of the Public Prosecution Department (Openbaar
Ministerie) which needed sufficient time to reach its conclusions, the
Supreme Court adjourned its proceedings three times, the first time
until 25 April 1995, the second time until 23 May 1995 and the last
time on 27 June 1995.
On 30 August 1995, the applicants submitted their respective
replies to the conclusions of the Procurator General (Procureur-
Generaal) to the Supreme Court. On 25 September and 4 October 1995, the
applicants submitted further replies to these conclusions to the
Supreme Court.
In two separate judgments of 13 February 1996, the Supreme Court
rejected the first and second applicants' respective appeals in
cassation. It decided not to consider the applicants' submissions of
25 September and 4 October 1995, finding it contrary to due proceedings
to react repeatedly to the conclusions of the Public Prosecution
Department. The Supreme Court quashed the judgment of 10 February 1994
as regards the qualification of the facts found proven, corrected this
qualification at its own motion and rejected the appeal in cassation
for the remainder.
Insofar as the first and second applicants complained that the
Court of Appeal had refused to add to their case-file the statement of
the witness Haste made in the proceedings against the third applicant,
the Supreme Court stated that the Court of Appeal appeared to assume
that this request concerned a witness who was no longer in the court
room, which the Supreme Court found understandable given the contents
of the minutes (proces-verbaal) of the hearing held on 15 June 1993 in
the third applicant's case. The Supreme Court found that the Court of
Appeal had applied correct standards in rejecting the defence's request
and accepted the reasons given by the Court of Appeal for rejecting the
request.
As regards the applicant's complaint of the use in evidence of
a number of documents in relation to a number of aspects of the
charges, the Supreme Court accepted the Court of Appeal's reliance on
these documents in connection with other means of evidence. It further
rejected a complaint that certain minutes of the investigation could
not be referred to as formal minutes (ambtsedige processen-verbaal).
Acknowledging that the Court of Appeal had erroneously referred to
these documents as formal minutes, it found that the Court of Appeal
could lawfully consider them as lawful documentary evidence (wettige
bewijsmiddelen) referred to in Article 344 para. 1 (5) of the Code of
Criminal Procedure (Wetboek van Strafvordering).
As regards the complaint concerning the use in evidence of
statements by the third applicant, the Supreme Court noted that the
defence was aware of these statements and had relied on them in its
submissions to the Court of Appeal. It, therefore, did not find that
the interests of the defence had been harmed by the use of these
statements by the Court of Appeal.
The Supreme Court further rejected the complaint of the use of
foreign documents not accompanied by an official translation and the
use in evidence of Spanish documents for lacking a basis in either the
law or the facts.
Insofar as the applicants complained that the Court of Appeal had
found that certain customs stamps were not authentic although the
stamps on the documents at issue in the present case had never been
examined, the Supreme Court noted that the Court of Appeal had found
that the stamps on the documents at issue in the present case were
identical to stamps on other documents which, after an investigation
into their authenticity, had been found not authentic. The Supreme
Court accepted that, in these circumstances, the Court of Appeal could
find that the stamps on the documents at issue in the present
proceedings were equally not authentic.
Referring to Article 101a of the Judicial Organisation Act (Wet
op de Rechterlijke Organisatie), the Supreme Court further rejected
many elements of the applicants' appeal in cassation as not prompting
a determination of legal issues in the interest of legal unity and
legal development.
Article 101a of the Judicial Organisation Act reads:
(Translation)
"If the Supreme Court considers that a complaint submitted cannot
lead to cassation and does not prompt a determination of legal
issues in the interest of legal unity and legal development, it
can limit itself to this finding when giving the reasons of its
decision on that point."
On 14 March 1996, the first and second applicants and a third
person addressed a joint request for revision (herziening) of their
convictions to the Supreme Court. All applicants filed a joint request
for revision on 6 May 1996. These proceedings are currently still
pending.
COMPLAINTS
The applicants complain that they did not receive a fair hearing
within the meaning of Article 6 paras. 1 and 3(d) of the Convention in
that the Court of Appeal rejected their request to hear the witnesses
Malevsky, Masur and Wernik, stating on this point that the Polish
documents were in order whereas in its judgments of 10 February 1994
the Court of Appeal found it established that the addressee mentioned
on a number of these customs documents had been put there fraudulently
and further found that it had not been established how the weights
indicated on these documents had been determined, finding it plausible
that these weights in general had been assessed, whereas the Polish
documents contained a meticulous indication of the number of animals
and their weight whilst lists of individually weighed animals were
attached to the invoices.
The first and second applicants further complain under Article
6 paras. 1 and 3 (d) that the Court of Appeal rejected their request
to hear the witness Haste also in their case. They complain in
particular that the Supreme Court accepted the reasons given by the
Court of Appeal on the basis of an incorrect interpretation of the
facts stated in the formal minutes of the hearing held on 15 June 1993
before the Court of Appeal.
The first and second applicants further complain under Article
6 para. 1 of a violation of the principle of equality of arms as the
prosecution was able to put questions to the witness Haste in the
proceedings against the third applicant. Having thus become aware
beforehand that the statement of this witness would be exculpating for
the first and second applicants, the prosecution subsequently opposed
the hearing of this witness in the cases of the first and second
applicants.
The applicants further complain under Article 6 paras. 1, 2 and
3 (d) of the Convention that the trial courts found it established that
certain Spanish customs stamps had been forged rejecting repeated
requests of the defence to order an investigation into the authenticity
of these stamps. The applicants submit that the trial courts based
themselves on findings concerning stamps on documents concerning
another set of criminal proceedings although these documents were not
included in the applicants' case-file.
The applicants also complain under Article 6 paras. 1, 2 and
3 (c) of the Convention that the Court of Appeal incorrectly
interpreted and distorted evidence given by the witness Methorst, a
truck driver, as regards acts committed by the second applicant. They
complain that they were only confronted with the Court of Appeal's
findings in its judgment and were thus unable to challenge the evidence
given by this witness.
The applicants complain under Article 6 paras. 1 and 3 (d) of the
Convention that, on 6 August 1992, the Regional Court rejected their
request to hear the French witnesses Chevalier and Serac on the alleged
sale of meat to these persons' respective firms. The applicants further
complain that, although the defence had not requested the hearing of
these two witnesses in the proceedings before the Court of Appeal, the
Court of Appeal should have summoned these witnesses ex officio.
The applicants further complain under Article 6 paras. 1 and
3 (d) of the Convention that the trial courts used in evidence
statements given by truck drivers, inter alia Bergmans, Deurzen and
Vos, to the FIOD without having ordered ex officio the hearing of these
witnesses in the course of the trial against the applicants given that
these witnesses had later altered their statements when they gave
evidence before the investigating judge on 22 September 1992.
The applicants also complain under Article 6 para. 1 of the
Convention that the Procurator General to the Supreme Court did not
deal with all points raised in the applicants' appeal in cassation.
They further complain that the Supreme Court refused to take notice of
the additional reply to the conclusions of the Procurator General to
the Supreme Court. They finally complain that the Supreme Court
rejected several parts of their appeal in cassation under Article 101a
of the Judicial Organisation Act without giving further reasons.
THE LAW
1. The applicants submit a number of complaints that the criminal
proceedings against them were not in conformity with the requirements
of Article 6 (Art. 6) of the Convention.
Article 6 (Art. 6) of the Convention, insofar as relevant, reads
as follows:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ... by a ...
tribunal established by law....
2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following
minimum rights:
...
c. to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means
to pay for legal assistance, to be given it free when the
interests of justice so require;
d. to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him;"
The applicants raise a number of complaints as to the trial
courts' taking of evidence and findings in their respective cases.
Insofar as these complaints relate to the proceedings before the
Regional Court, the Commission observes that the Regional Court's
judgments in the applicants' cases were quashed by the Court of Appeal.
In these circumstances the Commission is of the opinion that the
applicants can no longer claim to be a "victim" within the meaning of
Article 25 (Art. 25) of the Convention in respect of the proceedings
before the Regional Court.
As regards the applicants' complaints in respect of the findings
of the Court of Appeal in their respective cases, the Commission
recalls at the outset that it is not competent to examine alleged
errors of fact or law committed by national courts, except where it
considers that such errors might have involved a possible violation of
the rights and freedoms set forth in the Convention (cf. No. 25062/94,
Dec. 18.10.95, D.R. 83 p. 77).
Insofar as the applicants' complaints relate to the taking and
assessment of evidence by the Court of Appeal, the Commission recalls
that, as a general rule, it is for the national courts to assess the
evidence before them as well as the relevance of the evidence which the
defence seeks to adduce. More specifically, Article 6 para. 3 (d)
(Art. 6-3-d) of the Convention leaves it to them, again as a general
rule, to assess whether it is appropriate to call witnesses, in the
autonomous sense given to that word in the Convention system; it does
not require the attendance and examination of every witness on the
accused's behalf (cf. Eur. Court HR, Engel v. the Netherlands judgment
of 8 June 1976, Series A no. 22, p. 38, para. 91; Bricmont v. Belgium
judgment of 7 July 1989, Series A no. 158, p. 31, para. 89; and Vidal
v. Belgium judgment of 22 April 1992, Series A no. 235-B, p. 32, para.
33).
The Commission notes that in the proceedings before the Court of
Appeal a number of witnesses, including both witnesses called by the
Court itself and witnesses proposed by the defence, have in fact been
heard and that, on 26 January 1994, the defence in the cases of the
first and second applicants informed the Court of Appeal that all
witnesses had been heard. The Commission further notes that at that
point in the appeal proceedings the defence did not complain of the way
in which these witnesses had been heard or ask for the hearing of other
witnesses. As regards the third applicant, the Commission observes that
on 26 January 1994, the Court of Appeal acceded to the defence's
request to hear one further witness and that the defence did not
request the Court of Appeal to hear any other additional witnesses or
complain of the way in which witnesses had been heard in the
proceedings on appeal.
In these circumstances, the Commission finds no indication that
in this respect the applicants were deprived of a fair hearing within
the meaning of Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the
Convention.
Insofar as the applicants' complaints as to the taking of
evidence relate to other forms of evidence submitted to and assessed
by the Court of Appeal, the Commission notes that the Supreme Court
accepted the Court of Appeal's decisions and findings as regards this
evidence as lawful. Noting that the applicants were convicted following
adversarial proceedings in which they were provided with ample
opportunity to hear witnesses, to challenge the evidence against them,
to state their respective cases and to submit whatever they found
relevant to their cases, the Commission finds no indication that the
proceedings at issue, as regards the taking of evidence, were contrary
to the requirements of Article 6 (Art. 6) of the Convention, including
the principle of equality of arms.
Insofar as this complaint has been substantiated, the Commission
further finds no indication that the applicants' rights under Article
6 para. 2 (Art. 6-2) of the Convention were infringed in the
proceedings at issue.
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicants further complain that the Procurator General to
the Supreme Court did not deal with every point of the applicants'
appeal in cassation, that the Supreme Court refused to take notice of
the applicants' additional replies to the conclusions of the Procurator
General and that the Supreme Court rejected a number of their
complaints in cassation under Article 101a of the Judicial Organisation
Act without giving any substantial reasoning for its rejection.
As regards the complaint that the Procurator General's
conclusions were incomplete, the Commission notes that the scope of an
appeal in cassation to the Supreme Court is limited to points of law.
Furthermore, it has not been alleged nor has it appeared that the
Supreme Court's competence to consider an appeal in cassation is
limited to those elements which were examined by the Procurator General
rather than to the points raised by an appellant in cassation
proceedings.
In these circumstances, the Commission is of the opinion that,
even assuming that the Procurator General did not deal with every issue
raised in the applicants' appeal in cassation, this did not affect the
scope of the applicants' cassation proceedings and thus did not affect
the fairness of the proceedings before the Supreme Court.
Insofar as the applicants complain that the Supreme Court did not
take notice of their additional replies to the conclusions of the
Procurator General, the Commission recalls that, given the rights of
the defence and respect for the principle of equality of arms,
appellants in cassation should be given the possibility to respond to
conclusions submitted to a cassation court by the Public Prosecution
Department (cf. Eur. Court HR, Borgers v. Belgium judgment of 30
October 1991, Series A no. 214-B).
In the present case, the applicants were given the opportunity
to respond to the Procurator General's conclusions and they did in fact
avail themselves of this opportunity. In the light of a proper
administration of justice, the Commission considers that the rights of
the defence and respect for the principle of equality of arms do not
include an unlimited right for the defence to reply to such
conclusions.
Noting that the applicants did avail themselves of their right
to reply and that their initial reply was accepted by the Supreme
Court, the Commission cannot find that the Supreme Court's decision not
to take notice of the applicant's additional replies to the Procurator
General's conclusions deprived them of a fair hearing within the
meaning of Article 6 (Art. 6) of the Convention in the proceedings
before the Supreme Court.
As regards the applicants' complaint that the Supreme Court
rejected parts of their appeal in cassation under Article 101a of the
Judicial Organisation Act without giving specific reasons, the
Commission recalls that Article 6 para. 1 (Art. 6-1) of the Convention
obliges the courts to give reasons for their judgments, but cannot be
understood as requiring a detailed answer to every argument (cf. Eur.
Court HR, Ruiz Torija v. Spain judgment of 9 December 1994, Series A
no. 303-A, p. 12, para. 29; and Hiro Balani v. Spain judgment of
9 December 1994, Series A no. 303-B, p. 29, para. 27).
The Commission further recalls that when a State provides for an
appeal to a Supreme Court, it may prescribe the conditions and
procedure (cf. No. 12972/87, Dec. 9.11.87, D.R. 54 p. 207) and that
Article 6 (Art. 6) of the Convention does not require that a decision
whereby an appeal tribunal, basing itself on a specific legal
provision, rejects an appeal as having no chance of success be
accompanied by detailed reasons (cf. No. 8769/79, Dec. 16.7.81, D.R.
25 p. 240).
The Commission notes that the Supreme Court, referring to Article
101a of the Judicial Organisation Act authorising this procedure,
rejected part of the applicant's complaints in cassation, which is
limited to points of law, as not prompting a determination of legal
issues in the interest of legal unity and legal development. The
Commission cannot find this procedure to be contrary to the
requirements of Article 6 para. 1 (Art. 6-1) of the Convention (see
also No. 30059/96, Dec. 26.2.97, unpublished).
It follows that this part of the application must also be
rejected as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy