AS TO THE ADMISSIBILITY OF
Application No. 30059/96
by Jan Pieter DE KOK
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 26 February 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
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 15 November 1995
by Jan Pieter DE KOK against the Netherlands and registered on
5 February 1996 under file No. 30059/96;
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 applicant is a Dutch national, born in 1952, and resides in
Rotterdam. He states to be a classical homeopathic and iatrosophical
doctor. In the proceedings before the Commission, he is represented by
Mr P.J. de Bruin, a lawyer practising in Rotterdam.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 9 October 1987, Daisy was born. Shortly after her birth, she
started to suffer from respiration and feeding problems. At that time,
Daisy and her mother were medically followed by the homeopathic doctor
Ms M.D., whom the applicant supervised and who worked according to the
applicant's principles and methodology. For personal health reasons Ms
M.D. transferred these two patients to Mr O.J., another doctor
supervised by the applicant. Between 1 and 25 January 1988 there were
a number of contacts by telephone between Daisy's mother and/or her
mother, who sought guidance, and the applicant. The applicant billed
them for these telephone consultations.
On 9 February 1988, Daisy was admitted to hospital. It appeared
that she was suffering from a growing tumour in the trachea.
On the basis of several complaints submitted to the Inspector of
Public Health (Inspecteur van de Volksgezondheid) for the province of
North-Holland about unauthorised practising of medicine by the
applicant, the Dutch investigating authorities requested the police to
open an investigation.
The applicant was present when, on 24 June 1988, the police
arrested Ms M.D. in connection with her treatment of Daisy. At that
point in time, the applicant was briefly questioned by police officer
L. in the presence of Ms M.D. On 12 August 1988, after having been
cautioned, the applicant was interrogated at the Hague police office
about Daisy's treatment.
On 18 August 1988, the police transmitted the results of its
investigation of the case concerning Daisy to the prosecution
authorities. No criminal or disciplinary proceedings were brought
against Ms M.D.
As from March 1990, the applicant treated Ms R. prescribing her
homeopathic medication. On 15 March 1990, upon the request of her
husband, Mr R., Ms R. was examined by Mr P., a medical specialist in
the R. hospital. He diagnosed a double-sided pneumonia and an
inflammation of the middle ear and advised admission to hospital and
treatment with antibiotics, which she refused.
On 19 April 1990, both the applicant and Mr O.J., examined Ms R.
As her situation did not improve, they sought the assistance of Mr P.
who was only prepared to assist in having Ms R. admitted to hospital.
Shortly after, Ms R. was taken to hospital, where she was diagnosed as
suffering from pneumonia in an advanced stage and a virulent infection
in both ears. When she was released from hospital on 8 June 1990, 30%
of her lung capacity and 40% of the hearing capacity of her left ear
had been irreparably lost.
By letter of 1 May 1990, Mr R. requested the public prosecution
department of The Hague to start criminal proceedings against the
applicant. On the basis of this request, the prosecution department
ordered the police to investigate the matter.
On 26 June 1990, the applicant was arrested and detained on
remand. He was released on 29 June 1990. On the same day a preliminary
judicial investigation (gerechtelijk vooronderzoek) was opened against
the applicant in connection with the events concerning Ms R. and Daisy.
On 5 June 1991, the investigating judge (rechter-commissaris)
appointed the general practitioner Mr B. as a medical expert. The
applicant filed an objection against this appointment on 13 June 1991.
Following a hearing on 8 July 1991, the Regional Court
(Arrondissementsrechtbank) of The Hague, meeting in chambers
(raadkamer), rejected this objection on 18 July 1991. Mr B. submitted
his report to the investigating judge on 22 June 1991.
On 10 September 1991, the preliminary investigation against the
applicant in respect of the events concerning Ms R. and Daisy was
closed. A notification of prosecution (kennisgeving van verdere
vervolging) as regards these facts was served on the applicant on 24
September 1991.
By summons of 5 November 1991, the applicant was ordered to
appear on 21 February 1992 before the Regional Court
(Arrondissementsrechtbank) of The Hague on two separate sets of charges
of having inflicted serious bodily harm, one set of charges relating
to Ms R. and one set of charges to Daisy.
On 21 February 1992, a hearing was held before the Regional
Court. The applicant's lawyer was absent. The applicant was present,
but, after having submitted a written statement to the court, left
before the prosecution had presented the case.
The Regional Court rejected the written request of the defence
to adjourn the proceedings in order to examine the minutes (processen-
verbaal) of the police. The Regional Court found it established that
the defence had been aware of the contents of these minutes already on
14 June 1991 and that, given the lapse of time between the notification
of prosecution and the first hearing, the defence had had sufficient
time to prepare the case.
The prosecution requested the Regional Court to be allowed to
amend the charges against the applicant. The Regional Court granted the
request and decided to adjourn its further examination until 1 May 1992
in order to serve the amended charges on the applicant.
On 1 May 1992, the Regional Court resumed the proceedings against
the applicant. Both the applicant and his lawyer were present. After
the parties' pleadings, the Regional Court closed its investigation.
By judgment of 15 May 1992, the Regional Court of The Hague
acquitted the applicant of the charges involving Daisy, convicted him
of participation in the causing of serious bodily harm (medeplegen van
zware mishandeling) as regards Ms R. and sentenced him to two years'
imprisonment under deduction of the time spent in pre-trial detention.
The Regional Court further granted the prosecution's request to take
the applicant in immediate detention (onmiddellijke gevangenneming),
holding that, given the applicant's statement that he would continue
to practise medicine according to his own principles, there was a
serious possibility that the applicant would repeat the commission of
offences of which he had been convicted. The applicant filed an appeal
with the Court of Appeal (Gerechtshof) of The Hague.
On 25 May 1992, the applicant requested the Court of Appeal to
order his release from pre-trial detention. The Court of Appeal meeting
in chambers ordered the applicant's release on 2 June 1992.
On 21 June 1993, a first hearing on the applicant's appeal
against the judgment of 15 May 1992 took place before the Court of
Appeal. The defence requested the Court of Appeal to hear eight
witnesses in public proceedings. After having deliberated the Court of
Appeal decided to adjourn the proceedings until 23 September 1993 in
order to hear four witnesses to be selected by the defence. The defence
opted for the first four witnesses on their list, namely Mr R., Ms R.,
Mr P. and Mr B. Insofar as the defence requested the Court of Appeal
to record the statements of these witnesses word for word, the court
held that minutes of the court hearings would be drafted by the
President and the Registrar in accordance with the law.
On 13 September 1993, the Court of Appeal heard the applicant and
the four witnesses selected by the defence.
At that hearing the applicant stated to the Court of Appeal,
inter alia, that he had founded and was the director of the Collegium
Iatrosophicum. He further stated that he practised medicine on the
basis of iatrosophical principles and that he prescribed self-prepared
medications. He also stated that he had not followed any medical or
pharmaceutical training, but was self-taught. He further stated that,
in the context of his practice, he co-operated with conventional
doctors, that such doctors who wish to work on the basis of
iatrosophical principles first receive a training with him and that
afterwards they work under his supervision. He confirmed that he had
supervised both Ms M.D. and Mr O.J.
After the applicant, the Court of Appeal heard Mr P. as a
witness. The applicant wished to question Mr P. in person on the basis
of a list of questions. He submitted this list to the court following
the court's request. After having examined the list of questions in
chambers, the Court of Appeal informed the applicant that, on the basis
of Article 288 of the Code of Criminal Procedure (Wetboek van
Strafvordering), it would prevent ex officio that insinuating,
suggestive, irrelevant and/or unnecessarily harmful questions be put
to the witness. Of the initial total of 119 questions of the defence,
30 were accepted by the Court of Appeal and, with the consent of the
defence, put to this witness by a member of the court on behalf of the
defence.
The applicant objected that the Court of Appeal had prevented him
from putting a part of his written questions to the witness and
informed the court that he had prepared written questions for each
witness to be heard in the proceedings and thus also for the next
witness. The Court of Appeal also examined the list of questions for
the next witness Ms R. The court stated again that it would prevent ex
officio that insinuating, suggestive, irrelevant and/or unnecessarily
harmful questions be put to this witness. Of the initial total of 149
questions of the defence, 42 were accepted by the Court of Appeal and,
with the consent of the defence, put to this witness by a member of the
court on behalf of the defence.
The same procedure was followed when the witness Mr B., a medical
specialist who had examined Ms R. after her admission to hospital, was
heard before the Court of Appeal. Of the initial total of 144 questions
of the defence, 63 were accepted by the Court of Appeal and, with the
consent of the defence, put to this witness by a member of the court
on behalf of the defence.
The next witness, Mr R., was heard before the Court of Appeal
according to the same procedure. Of the initial total of 200 questions
of the defence, 59 questions were accepted by the Court of Appeal and,
with the consent of the defence, put to this witness by a member of the
court of behalf of the defence.
After the hearing of these witnesses, the defence requested the
Court of Appeal to hear five other witnesses, i.e. Mr O.J., Mr B., Mr
L., Mr E.V. and Mr D. After having deliberated, the court accepted to
hear three of the proposed witnesses. It rejected the request to hear
police officer L. The Court of Appeal noted that the applicant had
stated before the court that he maintained the statement he had made
to Mr L. as recorded in the minutes (proces-verbaal) No. 35285/1988 of
the police. As the defence had stated in support of its request to hear
Mr L., that it sought to question him on the reasons why the applicant
had refused to sign these minutes, the Court of Appeal found a hearing
of Mr L. on this point not necessary or relevant for its examination
of the substance of the applicant's case.
The Court of Appeal rejected the request to hear Mr D. as it had
already agreed to hear Mr B. The court noted that, in the context of
the preliminary judicial investigation, Mr B. had already submitted a
reasoned written report. As the defence had not indicated why two
expert-witnesses should be heard before the court, on which points the
defence disagreed with Mr B. or why Mr D. would be more of an expert
than the expert Mr B., the Court of Appeal did not find that the
refusal to hear Mr D. would harm the applicant in his defence.
On 13 December 1993, the Court of Appeal heard Mr O.J. as a
witness. The President of the court informed Mr O.J. that Mr and Ms R.
had informed the Court of Appeal that they did not give permission to
render their medical data public. The applicant himself wished to
question Mr O.J. before the court. The applicant stated he would
question Mr O.J. on the basis of a previously prepared list with
written questions and requested the court to be allowed to submit his
written description of Ms R.'s clinical picture which was to be used
in his questioning. After having examined this document and the list
of questions in chambers, the Court of Appeal informed the applicant
that, on the basis of Article 288 of the Code of Criminal Procedure
(Wetboek van Strafvordering), it would prevent ex officio that
insinuating, suggestive, irrelevant and/or unnecessarily harmful
questions be put to the witness. On that basis the Court of Appeal
excluded the applicant's description of Ms R.'s clinical picture as
subject of the questions to be asked. Of the initial total of 91
questions, 83 relating to both Ms R. and Daisy were accepted by the
Court of Appeal and, with the consent of the defence, put to this
witness by a member of the court on behalf of the defence.
The Court of Appeal further heard Mr E.V., the paediatrician who
had treated Daisey after her admission to hospital. On the basis of a
list with written questions, 77 questions were put to this witness,
with the consent of the defence, by a member of the court on behalf of
the defence.
The court further heard Mr B., the expert who had submitted a
report to the investigating judge on 22 June 1991. The applicant again
requested the Court of Appeal to be allowed to submit his description
in writing of Ms R.'s clinical picture which was to be used in his
questioning of Mr B.
The court rejected the request finding, inter alia, that this
description contained intimate and medical information about Ms R.,
whilst she had not given permission to render this information public.
The applicant informed the Court of Appeal that he would question
Mr B. on the basis of a previously drafted list of questions. The Court
requested the applicant to submit this list and, after having examined
the list in chambers, again informed the applicant that on the basis
of Article 288 of the Code of Criminal Procedure, it would prevent ex
officio that insinuating, suggestive, irrelevant and/or unnecessarily
harmful questions be put. Of an initial total of 116 questions, 104
were allowed by the Court of Appeal and, with the consent of the
defence, put to this witness by a member of the court on behalf of the
defence.
After having rejected a request by the defence to show the Court
of Appeal a video tape of 78 minutes on which several wrongs in
conventional medicine have been documented for lack of relevance, the
court adjourned its further proceedings until 18 April 1994.
On 7 March 1994, the public prosecutor addressed the following
letter to the applicant's lawyer:
(translation)
"On 18 April 1994 the case of (the applicant) will be heard
again.
In the course of the previous hearing(s) of the case I had
to observe that your client wished to put a large number of
questions, I presume with your consent, to the witnesses heard
so far concerning the private life of Mr R., whereas in my
opinion these questions were irrelevant to the facts (with which
your client has been charged).
I find it hard to avoid the impression that the main
intention of this was to harm the complainant (aangever) R. These
questions have therefore justly not been allowed by the Court of
Appeal.
I warn you that I shall seriously object when similar
remarks which have no bearing on the facts (with which your
client has been charged) will be made by you in the course of
your pleadings, whereby I do not exclude that Mr R. will file a
complaint for criminal libel or slander against you.
A copy of this letter will be transmitted to the President
of the Court of Appeal and Mr R."
On 18 April 1994, the final pleadings took place before the Court
of Appeal. The applicant's lawyer submitted the comments of the defence
on the hearings before the Court of Appeal and referred to comments on
the minutes of the hearings in the applicant's case previously
submitted by the defence to the Court of Appeal. The defence
complained, inter alia, that the prosecutor's letter of 7 March 1994
constituted an unacceptable interference with the exercise of the
rights of the defence, that the Court of Appeal, in particular its
President, had unjustly restricted the exercise of the applicant's
rights of defence and that the proceedings had exceeded a reasonable
time.
After the applicant's lawyer had completed his final pleadings,
the President of the Court of Appeal asked him whether the remarks made
by him in respect of the Court of Appeal were to be considered as a
formal challenge (wraking) of the court in the person of its President.
After consultation with his lawyer, the applicant informed the court
that he did not wish to challenge the court in the person of its
President. After the applicant's final statement, the Court of Appeal
closed its investigation.
In its judgment of 2 May 1994, the Court of Appeal of The Hague
quashed the judgment of 15 May 1992 of the Regional Court, convicted
the applicant of having caused serious bodily harm (zware mishandeling)
as regards Ms R. and of participation in the causing of serious bodily
harm (medepleging van zware mishandeling) as regards Daisy and
sentenced him to 24 months' imprisonment with deduction of the time
spent in pre-trial detention and eight months of which were suspended
during a probation period of two years.
As regards the objections of the defence against the amendment
of the charges in the proceedings in first instance, the Court of
Appeal found that this amendment had been lawfully made. Insofar as the
applicant argued that the prosecution should be declared inadmissible
on the basis of the prosecutor's letter of 7 March 1994 to the
applicant's lawyer, the Court of Appeal considered that, although it
found the contents of the letter not very suitable, the letter only
contained a warning to the lawyer to refrain from harmful remarks
towards Mr R. The court did not find that this warning constituted a
restriction of the applicant's defence or a personal threat against the
lawyer in the exercise of his profession. The court further noted that
the applicant's lawyer, at the hearing of 18 April 1994, had amply and
without any restriction availed himself of the possibility to submit
whatever was useful for the applicant's defence.
Insofar as the applicant argued that, as regards the facts
concerning Daisy, the proceedings had exceeded a reasonable time, the
Court of Appeal held that, although the delay between the applicant's
first questioning on 12 August 1988 and the opening of the preliminary
judicial investigation on 29 May 1990 was undesirably long, it was not
of such a nature that the prosecution should be declared inadmissible
on the basis that the proceedings had exceeded a reasonable time.
Insofar as the applicant alleged that he had already been questioned
in connection with the facts at issue in April 1988, the Court of
Appeal found no factual basis for this allegation.
As regards the defence's various objections as regards the
fairness of the proceedings on appeal, the Court of Appeal held, inter
alia, that pursuant to Article 288 of the Code of Criminal Procedure
it was competent to prevent the putting of questions previously
submitted and thus known to the court, that the fact that a member of
the court had put the questions allowed by the court to the respective
witnesses on behalf of the defence had taken place with the consent of
the applicant and his lawyer, that the witnesses had been heard in
accordance with the relevant provisions of the Code of Criminal
Procedure and that it had not been made plausible that the veracity of
their statements had been influenced by previous knowledge about the
course of affairs at the hearings.
As regards the argument of the defence that the way the court had
conducted the proceedings on appeal was contrary to Article 6 of the
Convention, the Court of Appeal noted that the applicant had not
availed himself of the possibility to challenge the Court of Appeal and
that no facts or circumstances had appeared which should lead to the
conclusion that a full new hearing on appeal should take place as the
principles of a fair trial had been violated.
As regards the sentence to be imposed, the Court of Appeal
considered that an unconditional prison sentence of two years would in
principle be appropriate. However, in view of the fact that the
personal attitude of Ms R., as a follower of the applicant, had played
a part in the creation of the situation and in view of the lapse of
time in the case concerning Daisy, the Court of Appeal decided that
part of the sentence should be conditional.
The applicant filed an appeal in cassation with the Supreme Court
(Hoge Raad), submitting 16 complaints in cassation. The Supreme Court
examined the appeal on 11 October 1994.
On 24 January 1995, the Advocate-General to the Supreme Court
submitted his conclusions, to which the applicant replied on 5 March
1995.
On 16 May 1995, the Supreme Court rejected the applicant's appeal
in cassation. Insofar as the applicant complained that the Court of
Appeal could not be regarded as impartial, the Supreme Court found that
the applicant could have challenged the Court of Appeal judges, but
noted that the applicant had explicitly refused to do so. The Supreme
Court found no grounds on the basis of which the applicant's fear that
the Court of Appeal was biased could be regarded as objectively
justified.
Insofar as the applicant complained that the proceedings had
exceeded a reasonable time within the meaning of Article 6 para. 1 of
the Convention and that therefore the prosecution should be declared
inadmissible, the Supreme Court upheld the reasoning of the Court of
Appeal. It further did not find that the delay between the introduction
of the appeal in cassation and the first hearing in the cassation
proceedings should lead to the inadmissibility of the prosecution.
The Supreme Court further rejected two complaints relating to
factual findings of the Court of Appeal. Referring to Article 101a of
the Judicial Organisation Act (Wet op de Rechterlijke Organisatie), the
Supreme Court rejected the remainder of the applicant's 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."
COMPLAINTS
The applicant submits a number of complaints that the criminal
proceedings against him were not in conformity with the requirements
of Article 6 of the Convention.
1. The applicant complains that he was deprived of a fair trial in
that the Court of Appeal limited the exercise of his defence rights by
not allowing the defence to put certain questions to some of the
witnesses, by not allowing him to seek further clarifications on
specific points, by changing questions to witnesses, by taking certain
witnesses into protection and by not allowing the defence to
demonstrate the mendacity of statements made before the police by
witnesses also heard before the court.
2. The applicant complains of the way in which the President of the
Court of Appeal conducted the hearings held on 13 September and
13 December 1993 in that he interfered in the way in which the defence
questioned witnesses and could, therefore, not be regarded as being
impartial. The applicant submits that the President clearly appeared
to be biased.
3. The applicant complains that he was tried by a judicial body
lacking the required knowledge of classical homeopathy and conventional
medicine.
4. The applicant complains that the medical specialists B. and V.,
who had been appointed by the Court of Appeal, lacked the required
independence, as both had interests in the proceedings. It was
important for Mr B. to conceal the mistakes which had been made in the
hospital and it was important for Mr V. to conceal the real course of
events in the treatment of Daisy.
5. The applicant complains that the Court of Appeal rejected his
request to appoint Mr D. as a classical homeopathic expert and his
request to hear police officer L. as a witness.
6. The applicant complains that the prosecution influenced the way
the defence in his case was conducted by threatening his lawyer with
criminal proceedings in case the defence would not comply with the
indications given by the prosecution.
7. The applicant complains that the contents of the minutes of the
questioning by the police and minutes of the respective court hearings
in his case are not reliable in that these minutes do not contain a
verbatim reproduction of what has been said on those occasions, whereas
these minutes have been used in evidence.
8. The applicant complains that the proceedings in respect of both
Daisy and Ms R. exceeded a reasonable time.
9. The applicant complains that it was only at the first court
hearing of his case that the prosecution modified the charges against
him by referring to the fact that he was a medical practitioner whereas
this was known as from the outset of the criminal proceedings against
him.
10. The applicant complains under Article 14 of the Convention in
conjunction with Article 6 para. 3(d) of the Convention that the Dutch
courts rejected his argument that there had been an emergency
situation. He submits that he has not been sufficiently allowed to
question witnesses and experts on this point and considers that he has
been discriminated against for being a iatrosophic in that he was
convicted and in that such a high sentence was imposed.
11. The applicant finally complains that the Supreme Court rejected
a number of his complaints in cassation under Article 101a of the
Judicial Organisation Act without giving any substantial reasoning for
its rejection.
THE LAW
1. The applicant submits a number of complaints that the criminal
proceedings against him were not in conformity with the requirements
of Article 6 (Art. 6) of the Convention.
Article 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 within a
reasonable time by an ... impartial tribunal established by
law....
2. ....
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;
c. to defend himself in person or through legal
assistance of his own choosing ...;
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;
...."
2. The applicant complains that it was only at the first court
hearing of his case that the prosecution modified the charges against
him by referring to the fact that he was a medical practitioner whereas
this was known as from the outset of the criminal proceedings against
him.
The Commission notes that the charges against the applicant were
amended at the outset of the proceedings in first instance and that the
Regional Court, on the basis of this amendment, decided to adjourn the
proceedings for a period of more than two months.
In these circumstances the Commission cannot find that the
applicant was harmed in the exercise of his defence rights as
guaranteed by Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the
Convention.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Insofar as the applicant's complaints relate to the taking and
assessment of evidence by the trial courts, 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 at issue a number
of witnesses proposed by the defence have in fact been heard before the
Court of Appeal and that the defence has been enabled to question these
witnesses, albeit that the Court of Appeal did not allow the defence
to ask certain questions which it considered to be insinuating,
suggestive, irrelevant and/or unnecessarily harmful.
It follows from the national courts' margin of appreciation in
assessing the relevance of the evidence the defence seeks to adduce,
that they have also a margin of appreciation in controlling the
accused's questioning of such defence witnesses as are called.
The Commission cannot find that the Court of Appeal's decisions
and the reasons given therefor not to hear certain witnesses or the way
in which it controlled the applicant's questioning of the witnesses
heard in his case deprived the applicant of a fair trial within the
meaning of Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention
or constitute an indication that this court was biased. As regards the
latter aspect the Commission finds it further relevant that the
applicant explicitly refused to challenge the Court of Appeal after his
attention had been drawn to this possibility.
Considering that the applicant was convicted following
adversarial proceedings in which the defence has been provided with
ample opportunity to hear, question and object to witnesses and to
submit whatever it found relevant to the applicant's case, 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.
4. The applicant complains that he was tried by a judicial body
lacking the required knowledge of classical homeopathy and conventional
medicine.
The Commission finds that, in criminal proceedings, the right of
access to court does not necessarily include the right to be tried by
a criminal court possessing a detailed knowledge of the particular
professional activity of the accused where the acts for which he or she
stands trial have been committed in the context of an exercise of
professional activities. It is open to criminal courts to seek the
views of professional experts, which the domestic investigative and
judicial authorities in the proceedings at issue have in fact done.
It follows that this complaint must also be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
5. The applicant complains that the prosecution influenced the way
the defence in his case was conducted by threatening his lawyer with
criminal proceedings in case the defence would not comply with the
indications given by the prosecution.
The Commission has noted the contents of the letter of 7 March
1994 which the prosecutor addressed to the applicant lawyer. The
Commission further notes that the prosecutor addressed a copy of this
letter to the Court of Appeal, which considered it following a
complaint by the defence.
The Commission finds no indication in support of the assumption
that the contents of the letter unduly restricted the applicant in the
exercise of his defence rights in the proceedings at issue. In this
respect the Commission notes that the letter at issue had been sent
after the person referred to in this letter had already been heard as
a witness before the Court of Appeal, that the warning in this letter
solely concerned this particular witness and finally that the Court of
Appeal did in fact express its criticism on the contents of the letter.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
6. The applicant complains that the contents of the minutes of the
questioning by the police and minutes of the respective court hearings
in his case are not reliable in that these minutes do not contain a
verbatim reproduction of what has been said on those occasions, whereas
these minutes have been used in evidence.
The Commission recalls 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).
The Commission further recalls that, as a general rule, it is for
the national courts to assess the evidence before them (cf.
No. 22909/93, Dec. 6.9.95, D.R. 82 p. 25).
The Commission notes that in the present case the trial court
hearings were recorded in minutes according to the provisions of the
Dutch Code of Criminal Procedure. It further notes that the defence
submitted its comments on these and other minutes in the course of the
proceedings before the Court of Appeal and before this Court reached
its verdict. In these circumstances the Commission cannot find that the
absence of verbatim records of the various hearings in the applicant's
case deprived the applicant of a fair hearing within the meaning of
Article 6 (Art. 6) of the Convention.
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.
7. Insofar as the applicant complains that the Supreme Court
rejected a number of his complaints in cassation under Article 101a of
the Judicial Organisation Act without giving any substantial reasoning
for its rejection, 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).
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 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.
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.
8. The applicant complains under Article 14 of the Convention in
conjunction with Article 6 (Art. 14+6) of the Convention that he has
been discriminated against for being a iatrosophic in that he was
convicted and that such a high sentence was imposed.
Article 14 (Art. 14) of the Convention reads:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission finds that the facts of the case do not disclose
any discriminatory treatment contrary to Article 14 (Art. 14) of the
Convention in respect of any right protected by the Convention.
It follows that this complaint must also be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
9. The applicant complains that the proceedings in respect of both
Daisy and Ms R. exceeded a reasonable time.
According to the constant case-law of the Court and the
Commission, the reasonableness of the length of proceedings must be
assessed in the light of the circumstances of each case and having
regard in particular to the following criteria: the complexity of the
case, the conduct of the applicant and that of the competent
authorities (cf. Eur. Court HR, Kemmache v. France judgment of
27 November 1991, Series A no. 218, p. 27, para. 60). Persons held in
detention are further entitled to special diligence (cf. Eur. Court HR,
Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, p. 35,
para. 84).
The Commission considers that the proceedings started on
12 August 1988, when the applicant was interrogated by the police in
connection with their investigation of the treatment of Daisey, and
ended on 16 May 1995, when the Supreme Court rejected the applicant's
appeal in cassation. The entire proceedings lasted thus slightly more
than six years and nine months. The Commission notes that the
applicant, apart from the period between 26 and 29 June 1990, has not
been detained in the course of the proceedings at issue.
Insofar as the applicant complains of the delay between his
questioning on 12 August 1988 and the first hearing before the Regional
Court on 21 February 1992, the Commission notes that in the proceedings
at issue the applicant was not solely charged with facts relating to
the case of Daisy, but also with other offences relating to the facts
concerning Ms R. which occurred in March and April 1990.
In these circumstances, the Commission considers that the
relevant authorities during the period of time which elapsed between
12 August 1988 and 21 February 1992, cannot be considered as having
been totally inactive. Furthermore, having regard to the specific
circumstances of the present case and the fact that the Court of
Appeal, in view of the lapse of time in the case of Daisy, mitigated
its sentence, the Commission cannot find that this period of time
exceeded a reasonable time within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention (cf. Eur. Court HR, Boddaert v. Belgium
judgment of 12 October 1992, Series A no. 235-D).
As regards the total length of proceedings before the courts
between 21 February 1992 and 16 May 1995, i.e. slightly less than three
years and three months in the course of which the case has been dealt
with at three levels of jurisdiction, the Commission cannot find either
that this period was unreasonably long for the purposes of Article 6
para. 1 (Art. 6-1) of the Convention.
It follows that this part op the application is also 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.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy