AS TO THE ADMISSIBILITY OF
Application No. 15435/89
by Hendrik BRITTING
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 13 January 1992, the following members being present:
MM.S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs.G. H. THUNE
Mr.F. MARTINEZ
L. LOUCAIDES
Mr. K. ROGGE, Secretary to the Second 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 27 June 1989 by
Hendrik BRITTING against the Netherlands and registered on 5 September
1989 under file No. 15435/89;
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 applicant is a Dutch national, born in 1939. When
introducing his application he was serving a prison sentence at the
prison of The Hague. Before the Commission the applicant is
represented by H.H.M. van Dijk, a lawyer practising in Oss.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The facts of the case go back to 8 June 1986 when a certain R.
was shot in a pub in Breda where he found himself in the company of D.,
V., L. and J. He died on 4 August 1986.
On 10 August 1986, the applicant was arrested and subsequently
charged with murder.
During some confrontations (so-called Oslo confrontations) which
took place on 11 and 12 August 1986, the applicant was pointed out as
the gunman by the witnesses D., V. and L. who had already been heard
at the beginning of the inquiry and who had given a description of the
gunman. Faced by a line-up of 6 persons amongst whom the applicant,
these were asked individually whether the gunman was amongst them, and
if so to point him out.
On 16 April 1987, the applicant was convicted and sentenced to
10 years' imprisonment for manslaughter by the Regional Court
(Arrondissementsrechtbank) of Breda.
In his appeal to the Court of Appeal (Gerechtshof) of
's-Hertogenbosch, the applicant stated, inter alia, that the Oslo
confrontations had not been properly carried out because four of the
five persons lined up with him had a personal feature which was not
mentioned in - or did not square with - the earlier description given
by the three witnesses. He therefore thought that these
confrontations should not have been accepted as evidence.
During the trial before the Court of Appeal, a number of
witnesses were heard including D., V. and L. The Court also heard an
expert witness for the defence who criticised the manner in which the
Oslo confrontations were carried out. After having heard the witnesses
and experts, the President of the Court gave the defence and the
prosecutor the opportunity to have questions put to them or to comment
on their statements.
On 29 December 1987, the Court of Appeal confirmed the verdict
of the Regional Court. The Court however did not base its decision on
the Oslo confrontations, but on other evidence namely, inter alia, the
statements made at the beginning of the inquiry and at the hearing by
the witnesses D., V. and L., the statement made by the victim himself
before he died, and the testimonies of police officers and experts.
On 14 March 1989, the Supreme Court (Hoge Raad) rejected the
applicant's appeal on points of law.
COMPLAINT
The applicant complains under Article 6 para. 1 of the Convention
that the trial against him was unfair on the grounds that the courts
should have refused to accept as evidence either the Oslo
confrontations or even the statements made by D., V. and L. as they
were biased as a result of the incorrect confrontations. He explains
that four of the five persons who were lined up with him during the
confrontations had a personal feature (height, stature, age, beard)
which was not mentioned in - or did not square with - the earlier
descriptions of the gunman given by the witnesses. He also alleges
that prior to the confrontations these witnesses had already been shown
pictures of possible suspects among which pictures of him.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the trial against him was unfair on the grounds that
the Dutch courts should have refused to accept as evidence either the
Oslo confrontations or even the statements made by D., V. and L. as
these statements had become dubious as a result of the incorrect
confrontations.
Article 6 para. 1 (Art. 6-1) of the Convention, as far as
relevant, provides:
"1. In the determination of (...) any criminal charge against
him, everyone is entitled to a fair and public hearing...".
The Commission recalls that according to Article 19 (Art. 19) of
the Convention, the duty of the Convention organs is to ensure the
observance of the engagements undertaken by the Contracting States in
the Convention. In particular, it is not their function to deal with
errors of fact or of law allegedly committed by a national court unless
and insofar as they may have infringed rights and freedoms protected
by the Convention (cf. Eur. Court H.R., Schenk judgment of 12 July
1988, Series A no. 140, p. 29 para. 45).
The Commission also recalls that under its established case-law,
in order to determine whether Article 6 para. 1 (Art. 6-1) of the
Convention has been complied with, it must examine the proceedings as
a whole once
they have been concluded (cf., inter alia, No. 9938/82, Dec. 15.7.86,
D.R. 48 p. 21, No. 7945/77, Dec. 4.7.78, D.R. 14 p. 228).
The Commission further recalls that Article 6 para. 1 (Art. 6-1)
of the Convention implies that everyone who is a party to proceedings
shall have a reasonable opportunity of presenting his case to the Court
under conditions which do not place him at a substantial disadvantage
vis-à-vis his opponent. It does not, however, prescribe rules on the
admissibility and assessment of evidence, which are essentially matters
for the national law. The question of assessment of evidence is
subject to the discretion of national tribunals. It is therefore not
for the Commission to decide whether or not domestic courts have
correctly assessed evidence unless there is an indication that the
judge has drawn grossly unfair or arbitrary conclusions from the facts
before him (cf., inter alia, Eur. Court H.R., Kostovski judgment of 20
November 1989, Series A no. 166, p. 19 para. 39; No. 9000/80, Dec.
11.3.82, D.R. 28 pp. 127, 134).
The Commission will therefore consider whether the proceedings
as a whole, including the way in which the evidence was taken, were
fair.
It appears from the file that both in the Regional Court and in
the Court of Appeal, the manner in which the Oslo confrontations had
been carried out was at length discussed and that the Court of Appeal
heard an expert witness for the defence who criticised the manner in
which the confrontations were carried out. Furthermore, the applicant,
who was represented by a lawyer, was able to put forward other
evidence, in writing and orally at the different stages of the
procedure, and has submitted written and oral observations concerning
the alleged unfairness of the confrontations. Thus, he was able to
prepare properly his defence and argue his case at the trial so that
the courts could examine the evidence in the light of the submissions
of the applicant.
The Commission also notes that the witnesses D., V. and L. could
be examined and cross-examined during the hearings before the Regional
Court and the Court of Appeal.
It also appears from the file that when reaching its decision,
the Court of Appeal did not use the results of the confrontations.
Furthermore, the Court did not only base its decisions on the
statements given after the confrontations by D., V. and L. It also
took into account the statements made by these witnesses prior to the
confrontations, the statement of the victim and the statements of
police officers and experts. The Commission considers that the reasons
on which the domestic courts based their decisions are sufficient to
exclude the assumption that the evaluation of the evidence had been
arbitrary.
In these circumstances, the Commission finds that an examination
of the proceedings as a whole does not disclose any appearance of a
violation of Article 6 (Art. 6) of the Convention.
It follows that the application is 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.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy