AS TO THE ADMISSIBILITY OF
Application No. 21034/92
by K.C.M.
against the Netherlands
The European Commission of Human Rights sitting in private on
9 January 1995, the following members being present:
MM. H. DANELIUS, Acting President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
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. M. de SALVIA, Deputy 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 26 November 1992
by K.C.M. against the Netherlands and registered on 4 December 1992
under file No. 21034/92;
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 United Kingdom citizen, born in 1961 in Hong
Kong, and at present serving a prison sentence in the Netherlands.
Before the Commission he is represented by Mrs. G.E.M. Later, a lawyer
practising in The Hague.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 12 January 1990 a summons to be appear on 23 January 1990
before the Regional Court (Arrondissementsrechtbank) of Almelo on
charges of extortion, offences against the Opium Act and participation
in a criminal organisation was served on the applicant in person, who
at that time was detained in a remand centre. The applicant's lawyer
had already been provided with a copy of the summons on
10 January 1990.
On 23 January 1990 a hearing took place before the Regional
Court. The applicant was present and was assisted by his lawyer and an
interpreter. At the beginning of the hearing, immediately following the
prosecution's introduction of the case, the Regional Court replaced the
interpreter at the request of the applicant, who had stated that he had
difficulties in understanding the interpreter. The applicant had no
difficulties in understanding the second interpreter.
On 30 January 1990 the Regional Court convicted the applicant of
extortion, importation of drugs and trafficking in drugs and
participation in a criminal organisation and sentenced him to nine
years' imprisonment. Both the applicant and the prosecution filed an
appeal against this judgment with the Court of Appeal (Gerechtshof) of
Arnhem.
On 13 July 1990, 4 October 1990, 14 November 1990,
24 January 1991 and 21 March 1991 hearings took place before the Court
of Appeal, during which the Court of Appeal examined, inter alia, a
number of witnesses. The defence withdrew its request to hear the
witness A., agreed that the Court would not examine the witness B, and
was provided with the opportunity to examine the witnesses C., D. and
E. before the Court of Appeal.
At all these hearings the applicant was present and assisted by
his lawyer and an interpreter. In the course of these hearings the
applicant repeatedly stated he had no difficulties in understanding the
interpreters. In his final address to the Court of Appeal the applicant
stated that in the proceedings against him he had been assisted by an
interpreter each time he had appeared before a judge, that he saw no
grounds to doubt the fairness of the trial and that 90% of what the
court had heard from the interpreters was correct.
On 4 April 1991 the Court of Appeal quashed the judgment of the
Regional Court, convicted the applicant of extortion committed together
with others, importation of drugs and trafficking in drugs and
participation in a criminal organisation and sentenced him to nine
years' imprisonment. When the judgment was pronounced the applicant was
present and assisted by an interpreter.
The Court of Appeal based its conviction on, inter alia, police
reports, recorded telephone conversations between, inter alia, the
applicant and the co-accused, and statements by the applicant and the
witnesses A., B., C., D. and E.
The Court of Appeal rejected the applicant's preliminary
objection that the prosecution should be declared inadmissible since
it had brought the case before the same Court of Appeal judges, who in
the cases against the co-accused had already expressed an opinion about
the applicant's involvement in the criminal organisation at issue. It
held in this respect that the mere fact that, in cases against co-
accused, it had expressed an opinion about the applicant's involvement
in the criminal organisation did not mean that it was prejudiced on
this point, since the question whether or not the applicant was guilty
on this point was examined in a separate investigation against him and
the answer to this question further depended on what the applicant
himself and the witnesses for the defence stated before the Court of
Appeal in the applicant's case. The Court of Appeal did not exclude the
possibility that, on the basis of these statements, it would reach a
finding as regards the applicant's involvement in the criminal
organisation which was different from its finding in the other cases.
The Court further held that, given that none of its members had been
involved in the gathering of evidence against the applicant or in any
decisions at the stage preceding the Court of Appeal's examination, the
applicant had no reasonable grounds to question the Court of Appeal's
independence or impartiality, and that even the Court of Appeal's
possible partiality in its present composition would not lead to the
inadmissibility of the prosecution.
The Court of Appeal also rejected the applicant's complaint that
the summons and the judgment of the Regional Court had not been
translated into a language which the applicant understood, holding that
Article 6 of the Convention requires that an accused must be informed
in a language which he understands and in detail of the nature and
cause of the accusation against him, but does not require that this
must be done in writing. Given that the applicant had been assisted by
an interpreter throughout the criminal proceedings against him,
including the preliminary and subsequent judicial investigation, that
he had stated on several occasions that the interpretation was
satisfactory and that it also appeared from his attitude during his
trial that he was fully aware of the charges against him, the Court of
Appeal considered that the requirement of Article 6 had been complied
with.
The Court of Appeal also rejected the applicant's complaint that
there was no interpreter when the Regional Court pronounced its
judgment. The Court of Appeal noted that, although the procès-verbal
of the pronouncement of the judgment did not mention whether or not the
applicant was assisted by an interpreter, the applicant had stated that
he had been assisted by an interpreter each time he had appeared before
a judge and that the applicant himself had filed a timely appeal
against this judgment by a declaration in accordance with Section 451a
para. 1 of the Code of Criminal Procedure. In these circumstances the
Court of Appeal did not find it established that no interpreter was
present when the Regional Court pronounced its judgment. It further
held that even if this would have been the case, the applicant had not
been harmed in his defence, as it had sufficiently appeared from the
examination before the Court of Appeal and the applicant's course of
action that he was familiar with the Regional Court's judgment when it
was pronounced and in any event shortly thereafter.
The applicant's subsequent appeal in cassation to the Supreme
Court (Hoge Raad) was rejected on 26 May 1992.
Insofar as the applicant complained that important documents such
as the summons and the judgments in his case had not been translated
into a language he understood, the Supreme Court accepted the Court of
Appeal's reasoning.
As to the applicant's complaint that the Court of Appeal could
not be regarded as impartial, the Supreme Court also accepted the Court
of Appeal's reasoning. It further held that the mere argument submitted
by the applicant that his case had been dealt with by the Court of
Appeal in the same composition as in the cases against a number of co-
accused, where it had found that those co-accused belonged together
with, among others, the applicant to a criminal organisation did not
warrant the conclusion that there were exceptional circumstances
resulting in weighty indications that a judge was prejudiced. According
to the Supreme Court it belonged to the normal statutory task of a
judge to decide on the lawfulness of the proceedings and to determine
whether or not and to what extent an accused was guilty of the offences
he was charged with on the basis of the charges brought against him and
the examination before the trial court, without having regard to his
findings in other cases against other suspects.
COMPLAINTS
The applicant complains under Article 6 paras. 1 and 2 of the
Convention that the Court of Appeal was partial and prejudiced, as in
the same composition it had already decided the cases against co-
accused in which it had expressed an opinion as to the applicant's
involvement in a criminal organisation.
The applicant further complains under Article 6 para. 3 (a), (b),
(d) and (e) of the Convention that he was not provided with a written
translation of the summons and the judgment of the Regional Court, that
there was no interpreter when the Regional Court pronounced its
judgment, and that therefore he was not provided with sufficient
facilities to prepare and conduct his defence properly and adequately.
He also complains that he was given insufficient possibilities to
question the witnesses examined before the trial courts.
THE LAW
The applicant considers that the criminal charges against him
were not determined in accordance with the requirements of Article 6
paras. 1, 2 and 3 (Art. 6-1, 6-2, 6-3) of the Convention. He submits
that the Court of Appeal in the same composition had already decided
the cases against a number of co-accused, in which it had expressed an
opinion as to the applicant's involvement in the criminal organisation
with whose membership those co-accused were charged. He further submits
that he could not properly exercise his defence rights, since he was
not provided with written translations of certain documents, such as
the summons and the judgment of the Regional Court, there was no
interpreter when the Regional Court pronounced its judgment, and he was
not provided with sufficient possibilities to question the witnesses
examined before the trial courts.
Article 6 (Art. 6) of the Convention, insofar as relevant, reads:
"1. In the determination of (...) any criminal charge
against him, everyone is entitled to a fair (...) hearing
(...) by an independent and impartial tribunal (...).
(...)
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the
following minimum rights:
a. to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
accusation against him;
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 or, if he has not sufficient
means to pay for legal assistance, to be given it free when
the interests of justice so require;
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;
e. to have the free assistance of an interpreter if
he cannot understand or speak the language used in court."
The Commission first notes that the decision of the Supreme
Court, which was the final decision regarding the subject of the
present application, was given on 26 May 1992, whereas the application
was submitted to the Commission on 26 November 1992. The question could
therefore arise whether the six months rule contained in Article 26
(Art. 26) of the Convention has been complied with by the applicant
(cf. Eur. Court H.R., Oberschlick judgment of 23 May 1991, Series A
no. 204, p. 21, paras 39-40; No. 11662/85, Oberschlick v. Austria,
Comm. Report 14.12.89, Appendix II; and No. 12945/87, Dec. 4.4.90,
D.R. 65, 173).
The Commission recalls that, according to the Court's case-law
as regards the time-limits under the Convention, the first day of a
time-limit is considered to start on the day following the final
decision, whereas "months" are calculated as calendar months regardless
of their actual duration (cf. Eur. Court H.R., Istituto di Vigilanza
judgment of 22 September 1993, Series A no. 265-C, p. 35, para. 14;
Eur. Court H.R., Figus Milone judgment of 22 September 1993, Series A
no. 265-D, p. 43, para. 14; and, Eur. Court H.R., Goisis judgment of
22 September 1993, Series A no. 265-E., p. 51, para. 19).
The Commission is of the opinion that the day on which the final
national judgment was rendered forms no part of the six months' time-
limit contained in Article 26 (Art. 26) of the Convention. This time-
limit starts to count on the date following the date on which the final
decision has been pronounced orally in public, or - in cases where it
is not pronounced in public - following the date on which the applicant
or his representative was informed of this final decision. The time-
limit expires six calendar months later.
The Commission therefore finds that the application cannot be
rejected for having been submitted out of time, since it has been
introduced on the last day within the time-limit contained in Article
26 (Art. 26) of the Convention, i.e. 26 November 1992.
As regards the substance of the application, the Commission will
examine the complaints under Article 6 paras. 1, 2 and 3
(Art. 6-1+6-2+6-3) taken together, since the guarantees in paras. 2 and
3 of Article 6 (Art. 6-2, 6-3) represent constituent elements of the
general concept of a fair trial set forth in para. 1 (Art. 6-1) of this
provision (cf. Eur. Court H.R., Kamasinski judgment of
19 December 1989, Series A no. 168, p. 31, para. 62).
Insofar as the applicant complains that the proceedings before
the Regional Court were not in conformity with Article 6 (Art. 6) of
the Convention, the Commission notes that the Regional Court's judgment
was quashed on appeal and that the Court of Appeal convicted the
applicant after a full new examination of his case. In these
circumstances the Commission considers that the applicant can no longer
claim to be a victim within the meaning of Article 25 (Art. 25) of the
Convention of the proceedings before the Regional Court.
Insofar as the applicant complains that he was not provided with
a written translation of certain documents in his case such as the
summons and the judgment in first instance, the Commission recalls that
the absence of a written translation of a judgment does not in itself
entail a violation of Article 6 para. 3 (e) (Art. 6-3-e) of the
Convention (see Kamasinski judgment, loc.cit., p. 38, para. 85).
The Commission further observes that there was interpretation
throughout the criminal proceedings, including the preliminary
investigation, and that the applicant made no complaint about
inadequacy of that interpretation, nor suggested that he was unable to
communicate effectively with the lawyer who represented him throughout
the proceedings against him, either during the preliminary
investigation or while the proceedings were pending. The Commission
further observes that the applicant lodged timely appeals and stated
his grounds for appealing, either alone or through his lawyer.
Taking into consideration the situation as a whole in which the
defence was placed in preparing the applicant's defence, the Commission
finds no appearance of a violation of Article 6 para. 3 (a), (b), (c)
and (e) (Art. 6-3-a, 6-3-b, 6-3-c, 6-3-e) of the Convention in this
respect.
As regards the applicant's complaint under Article 6 para. 3 (d)
(Art. 6-3-d) that he was not provided with sufficient possibilities to
question the witnesses examined before the trial courts, the Commission
notes in the first place that this complaint has not been raised before
the Supreme Court, and that thus the question arises whether in this
respect the applicant has exhausted domestic remedies in accordance
with Article 26 (Art. 26) of the Convention. However, even assuming
that the applicant has exhausted domestic remedies on this point, the
Commission, noting that the Court of Appeal examined several witnesses,
all of whom were equally examined by the defence, whereas the defence
withdrew its request to hear one witness and agreed that another
witness would not be examined before the Court of Appeal, finds no
substantiation of the allegation that the defence rights were
restricted in the examination of the witnesses before the trial courts.
It therefore finds no appearance of a violation of Article 6 para. 3
(d) (Art. 6-3-d) of the Convention in this respect.
Insofar as the applicant complains that the Court of Appeal was
partial and biased, as in the same composition it had already decided
the cases against a number of co-accused in which it had expressed an
opinion about the applicant's involvement in a criminal organisation,
the Commission recalls that the presumption of innocence may be
violated if a judicial decision amounts in substance to a determination
of a person's guilt without that person having been proved guilty
according to law and in particular without him having had an
opportunity to exercise the rights of the defence (cf. Eur. Court H.R.,
Minelli judgment of 25 March 1983, Series A no. 62, p. 18, para. 37;
and Allenet de Ribemont v. France, Comm. Report 12.10.93, para. 67).
However, in the present circumstances the Commission finds that
this was not the case. In the judgments concerning the co-accused the
courts were not called upon to determine the guilt of the applicant,
but that of the co-accused. Part of the evidence against the co-accused
may have concerned the extent to which the applicant was involved in
the criminal organisation and what conclusions could be drawn
therefrom. Insofar as the facts established indicated the involvement
of the applicant in the criminal organisation in the case against the
co-accused, the Commission finds that the trial court's findings as to
this involvement must be considered to be a part of the trial court's
evaluation of the evidence presented in the cases against the co-
accused. It did not, however, through this evaluation determine the
guilt of the applicant, which, as explicitly stated by the Court of
Appeal, was a matter to be considered during the applicant's own trial,
whilst the Court of Appeal did not exclude the possibility that it
would acquit the applicant of the charge of participation in a criminal
organisation, this being dependent on the evaluation of the evidence
submitted in the applicant's own trial.
The Commission recalls that the Court of Appeal examined several
witnesses, police reports and recorded telephone conversations between,
inter alia, the applicant and certain co-accused. It is satisfied that
the applicant's conviction was based on an evaluation of this evidence.
Especially, there is no indication that the Court of Appeal in
fulfilling its functions started from the conviction or assumption that
the applicant had committed the acts with which he was charged.
The Commission, therefore, concludes that the judgment of the
Court of Appeal of 4 April 1991 did not amount to a breach of the
presumption of innocence guaranteed under Article 6 para. 2
(Art. 6-2) of the Convention.
As regards the complaint that the Court of Appeal was not
impartial, the Commission recalls that the existence of impartiality
for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention must
be determined according to a subjective test and also to an objective
test (cf. Eur. Court H.R., Hauschildt judgment of 24 May 1989, Series
A no. 154, p. 21, para. 46)
As to the subjective test, the applicant has not alleged that the
judges involved in the proceedings at issue acted with personal bias.
In any event, the personal impartiality of a judge must be presumed
until there is proof to the contrary and in the present case there is
no such proof.
Under the objective test, it must be determined whether there are
ascertainable facts which may raise doubts as to the judges'
impartiality. This implies that it must be established whether there
was a legitimate reason to fear that they lacked impartiality. The view
of the applicant is important but not decisive. What is decisive is not
the subjective apprehensions of the accused, however understandable,
but whether, in the particular circumstances of the case, his fears can
be held to be objectively justified (cf. Eur. Court H.R.. Nortier
judgment of 24 August 1993, Series A no. 267, p. 22, para. 58).
The Commission considers that the mere fact that a judge has
already taken decisions in related criminal proceedings concerning co-
accused charged within the same factual context cannot in itself be
regarded as justifying anxieties about his impartiality in the
determination of the charges against the applicant himself. What
matters is the scope and nature of the decisions taken by the judge
before deciding on the charges against the applicant.
It appears from the applicant's submissions and the reasoning of
the Court of Appeal, when it rejected the applicant's preliminary
objection on this point, that when the co-accused were found guilty of
participation in a criminal organisation a number of names, among which
the name of the applicant, were mentioned as possible members of this
organisation.
The Commission notes that the Court of Appeal, whose members had
not taken any decision in respect of the applicant at the stage
preceding the appeal proceedings, explicitly stated that the question
whether or not the applicant was guilty of belonging to a criminal
organisation had been examined in a separate investigation against him
and that the answer to this question was further dependent on what the
applicant himself and the witnesses for the defence would state before
the Court of Appeal in his own case. The Court of Appeal did not
exclude the possibility that, on the basis of these statements, it
would reach a finding as regards the applicant's involvement in the
criminal organisation which was different from its finding in the other
cases.
The Commission further notes that the Court of Appeal did not use
the judgments in the cases against the co-accused as evidence against
the applicant, but based its finding of the applicant's guilt on, inter
alia, police reports, recorded telephone conversations between, inter
alia, the applicant and co-accused, and statements by the applicant,
co-accused and a number of witnesses, all of which elements had been
subject to an examination by the parties before the Court of Appeal in
the proceedings against the applicant.
In these circumstances, the Commission cannot find that the
applicant's fear as to the impartiality of the judges of the Court
of Appeal can be regarded as objectively justified and, therefore,
finds no appearance of a violation of Article 6 para. 1
(Art. 6-1) of the Convention in this respect.
Considering the proceedings as a whole, noting that the
applicant, who was assisted by a lawyer and an interpreter
throughout the proceedings, was given ample opportunity to state his
case and to challenge the evidence against him, including the
examination of witnesses before the trial court, the Commission
finds no indication that the applicant's trial was not in conformity
with the requirements 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, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission Acting President of the Commission
(M. DE SALVIA) (H DANELIUS)
Full & Egal Universal Law Academy