AS TO THE ADMISSIBILITY OF
Application No. 30941/96
by Raihmaan Safarilam MOENIRALAM
against the United Kingdom
The European Commission of Human Rights (Second Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
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 11 December 1995
by Raihmaan Safarilam MOENIRALAM against the Netherlands and registered
on 2 April 1996 under file No. 30941/96;
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 1957, and is currently
serving a prison sentence in the Netherlands. He is represented by
Mr. Th.A. De Roos, a lawyer practising in Amsterdam.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 7 September 1993, the applicant was arrested and detained on
suspicion of drug offences.
Following two hearings held on 16 and 23 December 1993 and on
31 January 1994, the Regional Court (Arrondissementsrechtbank) of The
Hague, on 14 February 1994, convicted the applicant of drug offences
and of participation in an organisation whose aim is the commission of
offences. The applicant was sentenced to ten years' imprisonment.
In reply to arguments submitted by the defence in connection with
the allegation that the applicant had been forced to find a drug runner
which had not been made sufficiently apparent in the proceedings, the
Regional Court held, inter alia, that no irregularities or
insufficiencies in the investigation or the thereto related orders had
appeared and that the necessity had not been established to hear as
witnesses the police officers V. and D.V., before whom the applicant
had made a statement on 9 September 1993.
The Court noted in this respect that in the course of the trial
the applicant had in fact been enabled to explain the underlying
reasons for the alleged constraint and, at that occasion, had not
stated anything about having been threatened by Colombians. The
applicant had stated that three persons from Amsterdam, W., D. and A.,
not being Colombians, approached him in order to find drug runners. He
acceded to their request for fear of repercussions.
The Regional Court based its conviction on, inter alia, the
applicant's confessing statements before the Regional Court, statements
to the police by a number of co-accused, a forensic report and police
reports.
The applicant filed an appeal and requested the prosecution to
summon 15 persons to give evidence before the Court of Appeal. The
prosecution agreed to summon the police officers V. and D.V. The
prosecution informed the defence that the prosecution would not summon
the other persons whose attendance was requested by the defence, as the
case concerned a confessing accused and the only issue was the question
whether the applicant had been threatened and, therefore, forced to
organise or carry out drug transports.
Following the applicant's appeal, a hearing was held on
20 June 1994 before the Court of Appeal (Gerechtshof) of The Hague. In
the course of that hearing the Court of Appeal heard the applicant. It
further heard the police officer V.
The defence further requested the Court of Appeal to hear four
witnesses, who could give evidence about the hierarchical structure of
the organisation, nine witnesses, who could give evidence about the
threats to which the applicant had allegedly been exposed, one expert-
witness Mr. P.H., who could provide information about the applicant's
personality. The defence explained that, in particular, the brothers
R.V. and P.V. had been present when the Colombians expressed threats
in January 1993 and that the other witnesses on this point could
provide information about more recent threats.
After having deliberated, the Court of Appeal decided to hear the
police officer D.V. and the expert-witness P.H., and to order a hearing
before the investigating judge (rechter-commissaris) of the brothers
R.V. and P.V. on the alleged threats by Colombians from Amsterdam in
January 1993.
The Court of Appeal rejected the request of the defence to hear
the other witnesses proposed, holding that the four witnesses proposed
in order to shed light on the hierarchical structure appeared to have
only been marginally involved ("randfiguren") and did not belong to the
core of the organisation, that one witness had already stated before
the Regional Court that, in view of his absence at the applicant's
hearing before the police on 9 September 1993, he could not make any
statement about that hearing, that another witness, according to the
defence, was not present when the alleged threats were made in
January 1993, that another witness, according to the defence, could
only provide hearsay evidence and that two other witnesses could,
according to the defence, only make statements about recent threats and
not about threats made in January 1993.
The Court of Appeal resumed the proceedings on 5 September 1994.
In view of its changed composition, the Court of Appeal fully restarted
its examination. It heard the applicant, who admitted, inter alia,
having imported cocaine and having recruited R.M. and E.R. as drug
runners. The Court of Appeal further heard the police officers V. and
D.V., and the expert-witness P.H.
As regards the witnesses R.V. and P.V., the President of the
Court of Appeal declared that, although duly summoned, the
investigating judge had been unable to hear them as they had left the
Netherlands and no new address was known.
The defence replied that they had left for the Netherlands
Antilles and that the new address of one of them was known to the
defence. The defence insisted hearing them - if need be in the
Netherlands Antilles - as they were present when the applicant was
threatened by W. The President of the Court of Appeal replied on the
latter point that W. was no Colombian and that the applicant had stated
on 20 June 1994 that he had been threatened by Colombians. The
prosecution objected to an adjournment to allow the hearing of R.V. and
P.V., holding that the occurrence of threats in the drug milieu is a
fact of common knowledge and that any statements by R.V. and P.V. would
not add anything relevant to the case.
After having deliberated, the Court of Appeal rejected the
request of the defence to hear R.V. and P.V. either before the Court
or in the Netherlands Antilles, holding that the necessity to hear them
had not appeared and that it could not be held that the applicant would
be harmed in his defence by not hearing these persons as witnesses. The
Court considered in this respect that it could already be concluded
from the evidence given by V. and D.V. that threats had been made, that
the occurrence of threats in the drug milieu are not exceptional and
that it was equally not remarkable that the applicant, as having played
an important role in that milieu, had made certain experiences in this
field, that the defence only needed these witnesses in order to give
evidence about such threats, that the need to hear these witnesses
nevertheless had been insufficiently established by the defence as the
applicant had exclusively mentioned threats by Colombians whilst the
two brothers could only give evidence about possible threats by W. who
was not Colombian and whom the applicant had not mentioned before the
police or during the trial as having made any threats to his address.
The Court of Appeal further stated, in respect of the other
witnesses whose hearing had been requested by the defence on
20 June 1994, that it upheld the decision of 20 June 1994.
Following the parties' final pleadings, the Court of Appeal
closed its investigation.
In its judgment of 19 September 1994, the Court of Appeal quashed
the judgment of 14 February 1994, convicted the applicant of drug
offences and participation in an organisation whose aim is the
commission of offences and sentenced him to ten years' imprisonment.
The Court of Appeal based its conviction on, inter alia, the
applicant's confessing statements during his trial and to the police,
statements made by co-accused before the investigating judge or the
police, and forensic and police reports.
In the determination of its sentence, the Court of Appeal held,
inter alia, that it had been made plausible that the applicant had
recruited drug runners for the importation of cocaine, that he was the
responsible person in the Netherlands and used others to carry out the
most risky part of the activities.
The applicant filed an appeal in cassation to the Supreme Court
(Hoge Raad).
Insofar as the applicant complained of the failure to hear as
witnesses the persons who had been marginally involved in the
organisation, the Procurator-General (Procureur-Generaal) to the
Supreme Court advised the Supreme Court to consider this complaint
well-founded as on the basis of their statements the applicant could
have been able to prove his low position in the organisation's
hierarchy, this being of relevance for the determination of his
sentence. The Procurator-General further advised the Supreme Court to
reject the remainder of the complaints in cassation.
The Supreme Court did not follow this advice in its judgment of
13 June 1995, in which it rejected the applicant's appeal in cassation.
It held on this point that, insofar as the applicant could be
considered to complain about the decision of 20 June 1994 of the Court
of Appeal, this decision could not be regarded as having been taken in
the course of the proceedings under consideration. Insofar as the
applicant could be considered as complaining about the decision as
regards certain witnesses taken on 5 September 1994, the Supreme Court
held that that decision was to be considered as an explanation of the
Court of Appeal's decision not to summon these witnesses ex officio.
It noted in this respect that it had not appeared that the defence had
made any request to hear those witnesses on 5 September 1994 and,
consequently, rejected this complaint for not being supported by the
facts.
Insofar as the applicant complained of the refusal to hear R.V.
and D.V. as witnesses, the Supreme Court held that the Court of Appeal
had applied the correct standards in reaching this negative decision.
COMPLAINTS
The applicant complains under Article 6 para. 3 (d) of the
Convention that his request to have P.V. and R.V. heard as witnesses
was rejected in the criminal proceedings against him. Invoking the same
provision, the applicant further complains of the refusal to hear as
witnesses a number of other persons, who could have given evidence
about the applicant's role in the organisation. The applicant submits
on this point that this decision failed to appreciate that also
marginally involved persons could provide useful information about the
nature and structure of the organisation involved.
THE LAW
The applicant complains that the trial courts' failure to examine
P.V. and R.V. and a number of other persons as witnesses in the
criminal proceedings against him violated his rights under Article 6
para. 3 (d) (Art. 6-3-d) of the Convention.
The Commission recalls that the guarantees in paragraph 3 (d) of
Article 6 of the Convention are specific aspects of the right to a fair
trial set forth in paragraph 1 of Article 6 (Art. 6-1) (cf. Eur. Court
HR, T. v. Italy judgment of 12 October 1992, Series A no. 245-C, p. 41,
para. 25). It will, therefore, examine the applicant's complaints under
these two provisions taken together.
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 (a)...
tribunal ...
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;
..."
The Commission recalls that Article 6 (Art. 6) of the Convention
does not guarantee an unlimited right for an accused to have witnesses
called. 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
defendants seek to adduce and, in particular, whether it is appropriate
to call witnesses. The essential aim of Article 6 para. 3 (d)
(Art. 6-3-d) of the Convention, as is indicated by the words "under the
same conditions", is a full "equality of arms" in the matter (cf. Eur.
Court HR, Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-
B, p. 32, para. 33; and No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).
The Commission notes that the Court of Appeal, before giving
judgment, heard the applicant and, upon request of the defence, the
police officers V. and D.V., and the expert-witness P.H. No other
persons gave evidence before the Court of Appeal.
In these circumstances, the Commission does not find that the
facts of the case disclose a violation of the principle of "equality
of arms" guaranteed by Article 6 para. 3 (d) (Art. 6-3-d) of the
Convention.
As regards the question whether the refusal to hear the other
witnesses proposed by the defence deprived the applicant of a fair
trial, the Commission notes that the defence had sought the attendance
of the brothers V. in order to hear their evidence about threats
allegedly exerted on the applicant.
The Commission notes, however, that the Court of Appeal accepted
the argument that the applicant had been subjected to threats, holding
that the occurrence of threats is a fact of common knowledge in the
drugs milieu.
In these circumstances, the Commission finds that the refusal to
hear the brothers V. did not deprive the applicant of a fair hearing
within the meaning of Article 6 (Art. 6) of the Convention.
As regards the refusal to hear the other persons whose attendance
had been requested by the defence, the Commission notes in the first
place that the applicant had failed to request the attendance of these
persons before the Court of Appeal in its changed composition.
The question could therefore arise whether, in these
circumstances, the applicant has duly exhausted domestic remedies on
this point (cf. No. 21782/93, Dec. 26.6.95, D.R. 82, p. 5).
However, the Commission does not find it necessary to determine
this question as this part of the application is in any event
inadmissible on the following grounds.
The Commission notes that the defence sought the hearing before
the trial court of these other persons in order to give evidence on
either the applicant's hierarchical position in the organisation at
issue or on the question whether or not he had been subjected to
threats.
As regards the alleged threats, the Commission has already noted
that the Court of Appeal accepted that threats had been exerted on the
applicant. Therefore, the Commission cannot find that the refusal to
hear other witnesses on this point deprived the applicant of a fair
trial within the meaning of Article 6 (Art. 6) of the Convention.
As regards the refusal to hear witnesses on the applicant's
hierarchical position in the organisation, the Commission notes that
the applicant had confirmed before the trial courts that he had been
involved in the importation of drugs and that he had recruited drug
runners.
In these circumstances, the Commission cannot find the Court of
Appeal's findings as to the applicant's role and responsibility, as
reflected in its conviction and the determination of the applicant's
sentence, arbitrary or unreasonable.
Consequently, the Commission does not find that the refusal to
hear witnesses on the applicant's position in the organisation at issue
deprived him of a fair trial within the meaning of Article 6 (Art. 6)
of the Convention.
It follows that the application must 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, unanimously,
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