AS TO THE ADMISSIBILITY OF
Application No. 18616/91
by G.D.
against the Netherlands
The European Commission of Human Rights sitting in private on 3
May 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
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 27 May 1991 by
G.D. against the Netherlands and registered on 30 July 1991 under file
No. 18616/91;
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 1944, who, at the time
of lodging the application, was detained in Amsterdam. Before the
Commission the applicant is represented by Mr. J. de Hullu, a lawyer
practising in Amsterdam.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
While being watched by an informed police observation team, the
applicant arrived on 14 October 1988 in the Netherlands by aeroplane
from Thailand. He carried a suitcase which he later handed over to two
Chinese men in an Amsterdam hotel. One of the Chinese men went with the
suitcase to another address in Amsterdam, where it was unpacked. He
then left with the apparently lighter luggage. The house was
subsequently searched by the police and a large quantity of heroin was
found. The applicant was arrested on the same day.
On 9 February 1989 the Regional Court (Arrondissementsrechtbank)
of Amsterdam convicted the applicant of the intentional importation of
about 12 kg. of heroin and sentenced him to four years' imprisonment.
The applicant filed an appeal against this judgment with the
Court of Appeal (Gerechtshof) of Amsterdam. At the hearing on 22 August
1989 the applicant's request to have heard as a witness, either before
the Court or through a commission rogatory in Thailand, the Thai who
had given the suitcase to him in Thailand was rejected by the Court of
Appeal. The Court considered it improbable that a hearing of this man
would reveal new facts or circumstances which would be important for
the decision it had to take. It also rejected the request that it visit
the house where the heroin was found. The Court considered that it was
sufficiently informed of the situation there by the police report on
the house search.
The Court of Appeal examined, inter alia, the police report of
15 October 1986 on the events of 14 October 1988, and a report of 17
October 1988 on the applicant's statement before the investigating
judge (rechter-commissaris). It also heard two police officers as
witnesses and the applicant. In its judgment of 5 September 1989, the
Court of Appeal quashed the judgment of 9 February 1989, following a
different approach to the evidence. It convicted the applicant of the
intentional importation of about 12 kg. of heroin and sentenced him to
five years' imprisonment.
The applicant's subsequent appeal in cassation to the Supreme
Court (Hoge Raad) was rejected on 4 December 1990.
COMPLAINTS
The applicant complains that the Court of Appeal wrongly rejected
his request to hear a particular witness, which seriously hindered him
in his defence. The applicant further complains that the Court of
Appeal's assessment of the evidence was unsatisfactory. He submits
that it had not been shown that the heroin which was found durin
search had been transported in his suitcase and that it had not been
shown that he had purposely transported heroin. The applicant alleges
violations of Article 6 paras. 1 and 3(d) of the Convention.
THE LAW
The applicant complains that the Court of Appeal wrongly rejected
his request to hear a particular witness, which seriously hindered him
in his defence. He further complains that the Court of Appeal's
assessment of the evidence was unsatisfactory. The applicant alleges
a violation of Article 6 paras. 1 and 3(d) (Art. 6-1, 6-3-d) of the
Convention, the relevant parts of which read as follows:
"1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public
hearing ... by a ... tribunal established by law...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
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;..."
With regard to the judicial decision of which the applicant
complains, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its established
case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;
No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.
13.12.79, D.R. 18 pp. 31, 45). Accordingly, it cannot examine the
applicant's general complaint that the Court of Appeal's assessment of
the evidence in his case was unsatisfactory.
However, it may examine the applicant's complaint about the
refusal to hear a witness from Thailand, because this is a matter
falling within the scope of the guarantees laid down in para. 3 of
Article 6 (Art. 6) of the Convention, which guarantees are specific
aspects of the right to a fair trial ensured by para. 1 of this
provision. The Commission will examine the complaint under the two
provisions taken together (cf. Eur. Court. H.R., Isgrò judgment of 19
February 1991, Series A No. 194-A, p. 12, para. 31).
The Commission recalls that Article 6 (Art. 6) does not grant the
accused an unlimited right to secure the appearance of witnesses in
court. It is normally for the national courts to decide whether it is
necessary or advisable to hear a witness (cf. No. 10563/83, Dec.
5.7.85, D.R. 44 p. 113, and Eur. Court H.R., Bricmont judgment of 7
July 1989, Series A No. 158, p. 31, para. 89). The Commission further
recalls that, as a rule, it is for the national courts to assess the
evidence
before them (cf. Eur. Court H.R., Asch judgment of 26 April 1991,
Series A No. 203, p. 10, para. 26). The Commission's task is to
ascertain whether the proceedings considered as a whole, including the
way the evidence was taken, were fair.
As regards the facts of the present case, the Commission notes
that the Court of Appeal based the applicant's conviction on, inter
alia, official reports and the oral testimony of two police officers.
The applicant was given the opportunity, of which he availed himself,
to challenge the statements by these witnesses and the other evidence
before the Court of Appeal. The Commission finds no evidence in the
case to suggest that the applicant's hearing in this respect was
unfair.
Moreover, the Court of Appeal had to take into account the
considerable practical difficulties in arranging a hearing in Thailand
of the Thai citizen concerned. It must have appeared doubtful whether
such a hearing could at all be arranged and the value of a statement
by that person must also have appeared highly questionable. In these
circumstances, the court's refusal to grant the applicant's request for
a hearing of that person cannot be considered to constitute an
infringement of the applicant's rights under Article 6 (Art. 6) of the
Convention.
Finally, the Commission finds no indication that, viewed as a
whole, the criminal proceedings against the applicant were otherwise
unfair.
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 Commission President of the Commission
(H.C. Krüger) (C.A. Nørgaard)
Full & Egal Universal Law Academy