AS TO THE ADMISSIBILITY OF
Application No. 22922/93
by Ahmet COLAK
against the Netherlands
The European Commission of Human Rights sitting in private on
27 February 1995, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
G. JÖRUNDSSON
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
E. KONSTANTINOV
G. RESS
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 August 1993 by
Ahmet Colak against the Netherlands and registered on 16 November 1993
under file No. 22922/93;
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
a. The particular circumstances of the case
The applicant is a Turkish national, born in 1967, and resides
at Deventer, the Netherlands. Before the Commission he is represented
by Mr. F. Leemans, a lawyer practising in Apeldoorn, the Netherlands.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 9 July 1990, an armed robbery took place in Apeldoorn. On
11 and 12 July 1990, a police officer showed a set of twelve
photographs of twelve different men, among whom the applicant, to four
witnesses. All four witnesses identified the applicant as the
perpetrator of the armed robbery.
On 15 July 1990, the applicant was arrested and subsequently
detained on remand on suspicion of having committed the armed robbery.
He was released on an unspecified date in September 1990.
On 19 July 1990, S.C., a friend of the applicant, was questioned
by the police as a witness. The procès-verbal of this questioning was
not added to the case-file until the beginning of September 1990.
In or around October 1990, the preliminary judicial investigation
(gerechtelijk vooronderzoek) against the applicant was closed.
By summons of 21 December 1990, the applicant was ordered to
appear before the Regional Court (Arrondissementsrechtbank) of Zutphen
on 13 February 1991 on charges of extortion under the threat of
violence.
By summons of 19 January 1991, the applicant was ordered to
appear before the Regional Court of Zutphen on 13 February 1991 on
charges of assault on a police officer in the exercise of his
functions.
On 13 February 1991, the Regional Court tried the armed robbery
case and the case concerning the assault on a police officer jointly.
The applicant argued, inter alia, that the photo identifications had
not been carried out in conformity with the procedure laid down in a
Report of 14 July 1989 on "Identification of persons by eye-witnesses"
("Identificatie van personen door ooggetuigen"), of the Criminal
Investigation Advisory Commission (Recherche Advies Commissie). He also
complained of the late transmission of the procès-verbal of 19 July
1990.
On 27 February 1991, the Regional Court convicted the applicant
of extortion and of assault on a police officer. It sentenced him to
fourteen months' imprisonment, six months of which were suspended.
A copy of the Regional Court's judgment was sent to the
applicant. Page 6 of this copy stated "This judgment does not contain
the means of evidence." ("In dit vonnis zijn geen bewijsmiddelen
opgenomen.").
On 11 March 1991, the applicant lodged an appeal against the
Regional Court's judgment with the Court of Appeal (Gerechtshof) of
Arnhem. On 25 March 1991, his lawyer submitted a memorial containing
the applicant's grounds of appeal to the Court of Appeal.
A few days before the Court of Appeal was scheduled to examine
the case, the applicant's lawyer consulted the case-file in which he
then found a copy of the Regional Court's judgment containing also the
means of evidence.
The Court of Appeal examined the case on 17 January 1992. It had
at its disposal the set of twelve photographs which had been shown to
the witnesses. The applicant complained, inter alia, that the copy of
the Regional Court's judgment he had received did not contain the means
of evidence on which his conviction had been based, and that the photo
identification had not been carried out in conformity with the
procedure laid down in the Report of 14 July 1989 on "Identification
of persons by eye-witnesses" of the Criminal Investigation Advisory
Commission, and could thus not be admitted as evidence. The applicant
also complained of the late transmission of the procès-verbal of
19 July 1990.
On 31 January 1992, the Court of Appeal quashed the Regional
Court's judgment, acquitted the applicant of the assault on a police
officer, convicted him of extortion and sentenced him to two years'
imprisonment. The Court of Appeal observed, inter alia, that it had
found a complete version of the Regional Court's judgment in the case-
file. The Court of Appeal rejected the complaints about the photo
identification, holding that the Report of 14 July 1989 had no force
of law and that the assessment of the evidence lies within the judicial
discretion. It did not deal with the complaint about the late
transmission of the procès-verbal of 19 July 1990.
The applicant requested a copy of the Court of Appeal's judgment.
He was again provided with a judgment which did not contain the means
of evidence on which his conviction had been based.
Within 14 days of the judgment of the Court of Appeal, the
applicant lodged an appeal in cassation with the Supreme Court (Hoge
Raad).
On 9 November 1992, the applicant submitted the grounds for his
appeal in cassation (middelen van cassatie). At that time he had
obtained a complete version of the Court of Appeal's judgment. The
applicant complained that the copies he had been given of the judgments
of the Regional Court and the Court of Appeal did not contain the means
of evidence on which his conviction had been based. He further
complained of the way in which the photo identification had been
carried out and of the late transmission of the procès-verbal of
19 July 1990. He invoked Article 6 of the Convention.
On 9 February 1993, the Supreme Court dismissed the applicant's
appeal in cassation.
b. Relevant domestic law and practice
Pursuant to Sections 30 - 34 and 51 of the Code of Criminal
Procedure (Wetboek van Strafvordering), the accused and his lawyer have
the right of access to the case-file. During the police investigation
or during a preliminary judicial investigation, this right can be
subject to limitations. However, once the preliminary judicial
investigation is closed or once the accused is summoned to the court
hearing, the accused and his lawyer have full access to the case-file.
Sections 30 - 34 and 51 are applicable at all stages of the criminal
proceedings.
Pursuant to Section 359 para. 1 of the Code of Criminal
Procedure, a judgment must contain the means of evidence on which a
conviction is based. However, in cases where the accused is convicted,
it is not unusual that initially a so-called "head-tail-judgment" (kop-
staart-vonnis) is drafted. Such a judgment does not account for the
means of evidence on which the conviction is based. A complete version
of the judgment is not prepared unless the convicted person lodges an
appeal against the judgment. In that case the means of evidence are
included in the judgment and the case-file, including the complete
judgment, is transmitted to the appeal court.
When the appeal court examines the case, it should have a
complete version of the judgment of the lower court. If this is not the
case, the appeal court must quash the judgment of the lower court on
formal grounds.
The appeal proceedings before the Court of Appeal offer a full
new hearing. The accused, who has lodged the appeal, can submit his
objections and possible additional objections to the judgment of the
Regional Court in writing, both before and during the hearing on
appeal. He can also submit additional objections orally in the course
of the hearing on appeal until the formal closure of the appeal court's
examination.
The use of "head-tail judgments" also occurs at the level of the
Court of Appeal.
The accused who has lodged an appeal in cassation, can submit
grounds for his appeal in cassation in writing until the day the
Supreme Court is scheduled to hear the case, and/or orally in the
course of the hearing before the Supreme Court (Sections 433 para. 2
and 439 of the Code of Criminal Procedure) provided that these grounds
are also set out in a written document which must be submitted to the
Supreme Court before the closure of its hearing.
COMPLAINTS
The applicant complains under Article 6 of the Convention that
the judgments of the Regional Court and the Court of Appeal he was
provided with, did not contain the means of evidence on which his
conviction was based.
The applicant further complains under Article 6 of the Convention
of the late transmission of the procès-verbal of 19 July 1990, the
contents of which were exculpating for him.
The applicant finally complains under Article 6 of the Convention
that the photo identification was not carried out in conformity with
the procedure laid down in a Report of 14 July 1989 on "Identification
of persons by eye-witnesses" of the Criminal Investigation Advisory
Commission.
THE LAW
1. The applicant complains that in the determination of the criminal
charges against him he did not receive a fair hearing as required by
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 (...).
(...)
3. Everyone charged with a criminal offence has the following
minimum rights:
(...)
b. to have adequate time and facilities for the
preparation of his defence;
(...)."
As regards the applicant's first complaint that he did not have
a fair trial because the copies of the judgments of the Regional Court
and the Court of Appeal which were given to him did not contain the
means of evidence on which his conviction was based, the Commission
recalls that national courts must indicate with sufficient clarity the
grounds on which they base their decision (Eur. Court H.R.,
Hadjianastassiou judgment of 16 December 1992, Series A no. 252,
p. 16 para. 33).
The question whether or not a trial as a whole is rendered unfair
because the means of evidence on which a conviction is based are not
immediately included in the written judgment, but only after the
sentenced person has lodged an appeal, must be examined in the light
of the particular circumstances of each case.
In the present case the Commission observes that the applicant
and his lawyer, as from the closure of the preliminary judicial
investigation against the applicant, had full access to the case-file.
It also appears that the applicant and his lawyer were aware of the
complete versions of the judgments of the Regional Court and the Court
of Appeal before the applicant's appeals were examined by the higher
courts. The applicant also had the opportunity, if he so wished, to add
new grounds of appeal, or new grounds of cassation, if he had found
this appropriate after becoming acquainted with those parts of the
judgments which had not immediately been communicated to him.
The Commission considers that a fair appeals procedure normally
requires that a sentenced person should be aware of the full contents
of the judgment by which he was convicted and sentenced, at the time
when he decides whether or not to lodge an appeal against the judgment.
However, in the present case what was missing from the judgments which
were communicated to the applicant was essentially a factual summary
of declarations by witnesses and not any assessments by the courts.
Moreover, the applicant became acquainted with the Regional Court's and
the Court of Appeal's complete judgments at a time when he could still
present supplementary grounds of appeal, or grounds of cassation
respectively. It cannot be considered, therefore, that the procedure
which was applied was prejudicial to his defence or otherwise made the
proceedings unfair.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. As to the applicant's complaint concerning the late transmission
of the procès-verbal of 19 July 1990, the Commission notes that both
the applicant and his lawyer had full access to the case-file as from
the closure of the preliminary judicial investigation and that at the
time of this closure the procès-verbal at issue had been added to the
case-file.
The Commission finds no indication that the late transmission of
this procès-verbal affected the fairness of the criminal proceedings
against the applicant.
This part of the application is, therefore, also manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. As to the applicant's complaint that the photo identification
was not in conformity with domestic guidelines, the Commission recalls
that it is for the domestic courts to decide on the admissibility of
the evidence and to evaluate that evidence. The Convention organs' task
is to ascertain whether the proceedings considered as a whole were fair
(Eur. Court H.R., Asch judgment of 26 April 1991, series A no. 203,
p. 10 para. 26).
The Commission notes that the applicant, who was assisted by a
lawyer throughout the domestic proceedings, had ample opportunity to
state his case, and to challenge the identification procedure as well
as the admissibility and probative value of the evidence against him.
It further does not appear from the case-file that the applicant
requested the trial courts to examine the witnesses who had identified
him from the photograph, or the police officer involved in the
identification procedure. Neither does it appear that the applicant
requested the trial courts to hear any other witnesses.
The Commission finds no indication that the criminal proceedings
against the applicant were not in this respect in conformity with the
requirements of Article 6 (Art. 6) of the Convention.
This part of the application must therefore 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, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy