AS TO THE ADMISSIBILITY OF
Application No. 20774/92
by Evert Hendrik HOOS
against the Netherlands
The European Commission of Human Rights (Second Chamber)
sitting in private on 6 April 1994, the following members being
present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 3 July 1992
by Evert Hendrik HOOS against the Netherlands and registered on
7 October 1992 under file No. 20774/92;
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 citizen, born in 1946, and detained
in Sittard. Before the Commission he is represented by Mr. A.H.
Westendorp, a lawyer practising in The Hague.
The facts of the case, as submitted by the applicant, may
be summarised as follows.
The applicant was the external adviser of "Toetanchamon",
a private security service, of which his wife was the director.
On 22 November 1988, the newspaper "Haagsche Courant"
published a critical article about the activities of
Toetanchamon. That night fire broke out in two offices of the
newspaper's publisher. In the following weeks other offices of
the publisher and several public buildings, including a police
station and a building of the Social Security Service, were
attacked. Two bombs exploded during a football match. On 24
December 1988, an Alderman of The Hague received a booby-trapped
lamp in the mail. By coincidence the bomb, which was hidden in
the lamp, did not explode.
On 27 December 1988, the police arrested two employees of
Toetanchamon on the suspicion of involvement in the series of
attacks. Three other employees were arrested on 30 December 1988,
16 January 1989 and 1 February 1989 respectively. The applicant
was arrested on 15 January 1989.
On 13 April 1989, the applicant was charged with a large
number of offences. Before the Regional Court (Arrondissements-
rechtbank) of The Hague, the public prosecutor relied on the
statements of four employees of Toetanchamon (hereinafter
referred to as the co-accused), who had indicated that the
applicant had planned the attacks and had given them specific
orders in this respect. All statements had been made before the
police during the preliminary investigation. The applicant, who
denied all charges, dismissed the incriminations as lies solely
designed to minimise the co-accused's own responsibility. It does
not appear from the case file that the applicant requested these
witnesses to be examined before the Regional Court.
On 11 May 1989, the Regional Court convicted the applicant
of (a) premeditated participation in an attempt to commit
grievous bodily harm (poging tot medeplegen van zware
mishandeling, gepleegd met voorbedachte rade) (b) multiple
participation in the deliberate commission of arson, causing
danger to goods, (c) incitement, by abusing his powers, to
participate in the deliberate commission of arson, causing danger
to lives of others and to goods, and (d) participation in the
deliberate causing of an explosion, causing danger to goods. The
applicant was sentenced to twelve years' imprisonment. In its
judgment, the Regional Court referred in particular and at length
to the statements of the four co-accused.
Both the applicant and the public prosecutor appealed to the
Court of Appeal (Gerechtshof) of The Hague. At the defence's
request, six witnesses were examined before the Court of Appeal.
The four co-accused were not examined. It does not appear that
the defence expressed the wish to hear the co-accused or that the
defence requested the Court of Appeal to examine them.
In its judgment of 19 July 1990, the Court of Appeal quashed
the Regional Court's judgment and, after a new examination of the
facts and evidence, convicted the applicant of (a) premeditated
participation in an attempt to commit grievous bodily harm, (b)
multiple participation in the deliberate commission of arson,
causing danger to goods, and (c) multiple participation in the
deliberate causing of an explosion, causing danger to goods and
sentenced the applicant to ten years' imprisonment. Like the
Regional Court, it relied mainly on the statements of the four
co-accused. In its judgment, the Court rejected a complaint that
two police officers had taken certain documents, allegedly
concerning the applicant's defence, from his cell, while he was
interrogated in another room by a third officer. The Court,
although acknowledging that these documents had been in the hands
of the police for about 20 minutes, did not find it established
that these documents concerned the applicant's defence or that
the officers had in fact taken these documents away or copied
them. Noting that the applicant refused to disclose the actual
contents of these documents, it did not find that the rights of
the defence had been impaired by this incident or that the
investigation as such had been unfair.
The applicant appealed in cassation to the Supreme Court
(Hoge Raad). Referring to the Unterpertinger, Kostovski and
Cardot cases, he submitted, inter alia, that Article 6 of the
Convention had been violated. He argued that his conviction had
been based solely on the statements of the four co-accused, who
had tried to minimise their own responsibility. In the criminal
procedures against the co-accused themselves the Regional Court
had already accepted these statements to be valid, and the
applicant had been unable to challenge them. He also argued that
his rights under Article 6 had been violated by the taking away
of certain documents from his cell.
In its judgment of 21 January 1992, the Supreme Court
rejected the appeal in cassation. It held that the Court of
Appeal could use the statements of the four co-accused in
evidence, taking into account that the applicant had at no stage
requested to have these witnesses examined before the trial
courts, which would have enabled him to examine them. As to the
complaint about the taking of the applicant's correspondence, the
Supreme Court accepted the rejection by the Court of Appeal.
COMPLAINTS
The applicant complains under Article 6 paras. 1 and 3(d)
of the Convention that he has been convicted on the basis of
statements made by four co-accused in proceedings in which he had
not been a party. He submits that he has been unable to challenge
these witnesses. The applicant admits that he did not request,
at any stage of the proceedings, to have the co-accused examined
before the court, but referring to the Commission's decision in
the Cardot case he argues that this is irrelevant as the co-
accused should have been summoned ex officio.
The applicant further complains under Article 6 of the
Convention that policemen took certain documents from his cell,
containing information about his trial, so that they could
anticipate the arguments the defence would present at his trial.
THE LAW
1. The applicant complains under Article 6 paras. 1 and 3 (d)
(Art. 6-1, 6-3-d) of the Convention that he was convicted on the
basis of statements made at their trial by four co-accused, who
were not examined at his trials before the Regional Court and the
Court of Appeal.
The Commission recalls that, under Article 26 (Art. 26) of
the Convention, it may only deal with a matter after all domestic
remedies have been exhausted according to the generally
recognised rules of international law.
The mere fact that the applicant has submitted his case to
the various competent courts does not of itself constitute
compliance with this rule. It is also required that the substance
of any complaint made before the Commission should have been
raised during the proceedings concerned. In this respect the
Commission refers to its established case-law (cf. No. 1103/61,
Yearbook 5 pp. 168, 186; No 5574/72, Dec. 21.3.75, D.R. 3 pp. 10,
15; No. 10307/83, Dec. 6.3.84, D.R. 37 pp. 113, 120). Moreover,
domestic remedies have not been exhausted where an appeal is not
admitted because of a procedural mistake by the applicant (cf.
No. 10636/83, Dec. 1.7.85, D.R. 43 p. 171; No. 10785/84, Dec.
18.7.86, D.R. 48 p. 102).
The Commission recalls that, at his trials before the
Regional Court and the Court of Appeal, the applicant did not ask
that the four co-accused be heard as witnesses. The Supreme Court
referred to this failure when rejecting his complaint concerning
the use of that evidence.
The Commission concludes that the applicant has failed to
raise before the appropriate domestic courts, i.e. the Regional
Court and the Court of Appeal, the issue now raised before the
Commission and, by the use of the procedural means available at
his trial, to obtain the hearing of the co-accused at his trial
(cf. Eur. Court H.R., Cardot judgment of 19 March 1991, Series
A no. 200, p. 18, para. 34).
The applicant claims that he was absolved from the
obligation to raise the issue at his trial because the courts
should ex officio have called the co-accused as witnesses. The
Commission, however, does not find that an applicant is absolved
from the obligation to exhaust domestic remedies whenever a
domestic authority should act ex officio (cf. No.11244/84, Dec.
2.3.87, D.R. 55 p. 98).
It follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies within the
meaning of Article 26 (Art. 26) of the Convention and his
application must in this respect be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
2. The applicant also complains under Article 6 (Art. 6) of the
Convention that two police officers took certain documents
concerning his trial from his cell, while he was interrogated in
another room by a third officer.
The Commission recalls that the domestic courts did not find
it established that these documents concerned the applicant's
defence or that the officers had in fact taken these documents
away or copied them.
The Commission, finding no indication in the case-file that
the information contained in these documents concerned the
applicant's defence or were used against the accused during the
trial, considers that the applicant has failed to substantiate
this complaint.
It follows that this complaint must be rejected under
Article 27 para. 2 (Art. 27-2) of the Convention for being
manifestly ill-founded.
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