AS TO THE ADMISSIBILITY OF
Application No. 21921/93
by R.A.G.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 5 July 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 14 May 1993 by
R.A.G. against the Netherlands and registered on 25 May 1993 under file
No. 21921/93;
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 citizen of the United States of America, born
in 1949, and is currently detained in Haarlem, the Netherlands. Before
the Commission he is represented by Mr.H.H.M. van Dijk, a lawyer
practising in Oss.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On Sunday 16 September 1990 the Amsterdam Municipal Police was
informed at about 19.40 hours that a wounded woman was lying on a
stretch of grass at the bottom of a certain block of flats. When the
police arrived they found a woman with a number of stab wounds. She
stated her name was H.G. and that she had been stabbed by her husband.
She gave the police her address and provided them with the keys to her
apartment. She was then brought to an Amsterdam hospital, where it was
found that she had 26 stab wounds in her breast, epigastrium and
buttock. In the meantime the police went to the woman's apartment,
where they found her spouse, the applicant, in the bedroom. Traces of
blood were found in the bedroom, living room, toilet and on the
balcony. It appears that the applicant also had a number of stab
wounds. He was also brought to a hospital. An official police report
was made on 16 September 1990 by the two police officers who had found
the applicant and his wife.
On 24 September 1990 the applicant's wife stated before the
Municipal Police that soon after their marriage in 1987 in the USA her
husband had regularly threatened and hit her, that her husband had
already been convicted once in the USA for offences involving violence,
that they had moved to the Netherlands in January 1990, that her
husband had serious alcohol problems and was using drugs, that he had
forbidden her on several occasions to leave the house, that about seven
weeks earlier she had been battered so seriously by her husband that
she needed treatment in a hospital, whereas she did not dare to seek
help in view of her husband's threats. In respect of the events on
16 September 1990, she stated that on 12 September 1990 her husband had
stabbed her several times, stating he would kill her, and also wounded
himself, that she had tried to leave, but that her husband had not
allowed her to leave the apartment and that on 16 September 1990 she
had managed to leave her house. She finally stated she wished to file
a complaint against her husband.
The applicant was arrested in the hospital on 24 September 1990.
On that occasion the applicant stated that he was innocent and that he
did not know who had stabbed his wife and himself. He was then brought
to the deputy public prosecutor (hulpofficier van justitie), before
whom he declared he did not wish to make any statement. The deputy
public prosecutor subsequently ordered the applicant's detention on
remand (inverzekeringstelling). The applicant remained in the hospital
until 25 September 1990, when he was transported to a penitentiary
hospital.
On 29 October 1990 the applicant's wife was heard by the
investigating judge (rechter-commissaris), who informed her of her
right as the accused's spouse to refuse to give evidence. The
investigating judge then heard her under oath. On that occasion, she
stated that in the night of 12 September 1990 her husband had stabbed
her several times with a dagger stating he would kill her, that she
passed out and that when she regained consciousness she did not see her
husband, that she tried to call the neighbours, but that the telephone
had been broken, that she managed to leave her apartment and was found
by two children. She repeated her statement that her husband had
problems with alcohol and drugs. She finally submitted three letters
her husband had written to her and gave her permission to add these
letters to the procès-verbal of the hearing, one of which, with the
heading "Fri-Sat-Sun", read, inter alia:
"H. do you really think & believe I don't feel & have same
pain you have and suffer voor all I've done & cause to You
& your family. (...) and for me it's all guilt - confusion
pain & horror. I was so stupid. Sorry H. so sorry voor even
being alive as I deserve no to be alive (...). All day &
night I cry voor all I've done to you. I live with guilt -
horror and feel such pain & stupidity and it's true. I've
to pay voor it. H. my guilt - pain - horror will never go
away.
Love R. Your husband."
According to the procès-verbal of the hearing on 29 October 1990
the applicant's former lawyer Mr.L.H. had been timely informed of the
hour of the hearing, but, according to information obtained by
telephone, Mr.L.H. had failed to pass this information on to the
accused's present lawyer Mr. H.H.M. van Dijk and, for this reason, the
hearing had taken place in the absence of Mr. van Dijk.
By summons of 7 December 1990 the applicant was ordered to appear
before the Regional Court (Arrondissementsrechtbank) of Amsterdam on
28 December 1990.
On 28 December 1990 the Regional Court, at the request of the
public prosecutor and with the applicant's consent, decided to adjourn
the hearing until 14 January 1991.
On 14 January 1991 the Regional Court restarted its examination
in a new composition. The applicant did not wish to make any statement.
The applicant's wife stated she wished to avail herself of her right,
as a member of the accused's family, to refuse to give evidence.
Following a request by the public prosecutor, opposed by the applicant,
the Regional Court ordered that the applicant's personality and mental
state be examined in a forensic observation centre and adjourned its
examination for an unspecified period not exceeding three months.
On 25 March 1991 the Regional Court restarted its examination in
a new composition. The public prosecutor requested another adjournment
since the report on the applicant's personality and mental state had
not been completed yet. The applicant stated that he was not prepared
to co-operate in this examination. The Regional Court adjourned the
hearing until 10 June 1991.
On 10 June 1991 the Regional Court resumed its examination,
considered the police report of 16 September 1990, a written statement
of 24 September 1990 by the doctor who had examined the applicant's
wife, the procès-verbal of the hearing of the applicant's wife of
29 October 1990 before the investigating judge, the letter with the
heading "Fri-Sat-Sun" and a message by fax dated 24 September 1990 from
the Bureau of Records of the H. County Sheriff containing the
applicant's criminal antecedents. The applicant, invoking his right to
remain silent, did not wish to make any statement before the Regional
Court. With the consent of the public prosecutor, the accused and his
lawyer, the Regional Court decided not to hear the applicant's wife as
a witness.
In his defence plea, the applicant's lawyer, referring to the
Unterpertinger judgment (Eur. Court H.R., judgment of 24 November 1986,
Series A no. 110), argued that the statement by the applicant's wife
before the police and the investigating judge should not be admitted
as evidence, since the defence had not been able to put questions to
her.
In its judgment of 24 June 1991 the Regional Court convicted the
applicant of attempted manslaughter and sentenced him to eight years'
imprisonment. The Regional Court rejected the argument by the defence
that the statement by the applicant's wife before the police and the
investigating judge should not be admitted as evidence. It noted that
the applicant had not at any time contested the applicant wife's
reliability or the contents of her statements, that her statements were
supported by other evidence and that the absence of the accused's
lawyer at the hearing of the applicant's wife before the investigating
judge was caused by the accused's former lawyer's failure to transmit
the information about the date and hour of the hearing before the
investigating judge to his successor, a fact for which the defence was
responsible.
The applicant filed an appeal against this judgment with the
Court of Appeal (Gerechtshof) of Amsterdam. At the hearing on
14 October 1991, the Court of Appeal examined the applicant, who
confirmed having written the letter with the heading "Fri-Sat-Sun" to
his wife. He further stated that he was innocent, that he did not know
who had stabbed his wife and himself, that his wife had used hard drugs
for ten years, that he could not state what had happened on
12 September 1990, that he refused to undergo a psychiatric
examination, that in the USA he had been previously convicted for
robbery but not for attempted murder and that his wife had in the
meantime emigrated to the USA.
On 28 October 1991 the Court of Appeal quashed the judgment of
24 June 1991 in view of a different evaluation of the evidence,
convicted the applicant of attempted manslaughter and sentenced him to
eight years' imprisonment. The Court of Appeal based its conviction on
the police report of 16 September 1990, the written statement of
24 September 1990 by the doctor who had examined the applicant's wife,
the procès-verbal of the hearing of the applicant's wife of
29 October 1990 before the investigating judge, the letter with the
heading "Fri-Sat-Sun" and the applicant's statement of 14 October 1991
before the Court of Appeal.
In respect of the argument by the applicant's lawyer that the
statements of 24 September and 29 October 1990 by the applicant's wife
should not be admitted as evidence since the defence had been unable
to question her, the Court of Appeal upheld the Regional Court's
reasoning that the defence was responsible for the absence of the
accused's lawyer at the hearing of the applicant's wife before the
investigating judge, as the applicant's former lawyer had been timely
informed about this hearing but had failed to transmit this information
to his successor. The Court of Appeal recalled that when the
applicant's wife was called before the Regional Court at the request
of the defence, she refused to give evidence, after which the defence
withdrew its request to hear her as a witness. The Court of Appeal
further held that her statements could be used in evidence since they
were supported by the other evidence in the case, the more so since the
applicant had failed to show that the letters he had written to his
wife could be read in any other sense than showing his guilt in respect
of the offence he was charged with.
The Court of Appeal further rejected the applicant's request to
hear the applicant's wife by way of a commission rogatory, holding that
such a hearing would appear useless given her refusal to give evidence
before the Regional Court and as, according to information provided by
the applicant who had indicated her place of residence, she had
returned to the USA and had informed the applicant that she was not
prepared ever to make any statement again.
The applicant's appeal in cassation was rejected by the Supreme
Court (Hoge Raad) on 17 November 1992. The Supreme Court held that, for
the purposes of Article 6 of the Convention, it was not in itself
sufficient that the applicant's lawyer has been provided with the
opportunity to attend the hearing of the applicant's wife before the
investigating judge. However, in view of the fact that the Regional
Court had also been willing to examine the applicant's wife, but could
not do so since she decided to avail herself of her right not to give
evidence, the fact that the applicant's conviction was not based to a
decisive extent on his wife's statements, in particular the fact that
her statement was supported by a letter the applicant had written to
her, the Supreme Court rejected the applicant's argument that her
statements should not have been admitted as evidence. As to the Court
of Appeal's refusal to examine the applicant's wife, the Supreme Court
held that this refusal could, in view of the circumstances, not be
regarded as unreasonable and that, in view of the trial court's
competence to assess factual circumstances which cannot be examined in
cassation proceedings, the Court of Appeal could refuse to hear the
applicant's wife without violating Article 6 of the Convention.
COMPLAINT
The applicant complains under Article 6 of the Convention that
he did not receive a fair trial, in that his conviction was mainly
based on statements by his wife whom he was unable to question.
THE LAW
The applicant complains under Article 6 (Art. 6) of the
Convention that he did not receive a fair trial, in that his conviction
was mainly based on statements by his wife whom he was unable to
question.
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;
(...)."
With regard to the decision of the Dutch courts to admit the
statements of the applicant's wife in evidence, the Commission recalls
that the admissibility of evidence is primarily governed by the rules
of domestic law, and as a general rule it is for the national courts
to assess the evidence before them. The Commission must ascertain
whether the proceedings, considered as a whole, including the way in
which the evidence was submitted, were fair (cf. Eur. Court. H.R.,
Edwards judgment of 16 December 1992, Series A no. 247-B, pp. 34-35,
para. 34).
The applicant's complaint that he was unable to examine his wife
is a matter falling within the scope of the guarantees set out in
para. 3 of Article 6 (Art. 6-3) of the Convention, these guarantees
being specific aspects of the right to a fair hearing ensured by
para. 1 of this provision (cf. Eur. Court H.R., Isgrò judgment of
19 February 1991, Series A no. 194-A, p. 12, para. 31). The Commission
will consider the complaint under the two provisions taken together.
The Commission recalls that all the evidence must normally be
produced in the presence of the accused at a public hearing with a view
to adversarial argument. However, the use in evidence of statements
obtained at the stage of the police enquiry and the judicial
investigation is not in itself inconsistent with paras. 3(d) and 1 of
Article 6 (Art. 6-1, 6-3-d), provided that the rights of the defence
have been respected. As a rule these rights require that the defendant
be given an adequate and proper opportunity to challenge and question
a witness against him either when these statements were made or at a
later stage of the proceedings (cf. Eur. Court H.R., Saïdi judgment of
20 September 1993, Series A no. 261-C, p. 56, para. 43).
In the present case, the applicant's wife was heard before the
police and the investigating judge. The applicant's lawyer, as
indicated in the file, had been informed about the hearing before the
investigating judge and was thus provided with an opportunity to
exercise the applicant's defence rights in respect of this hearing.
However, the hearing took place in the absence of the applicant and his
lawyer, since there had been a change of the applicant's lawyer and the
former lawyer had failed to transmit this information to his successor.
The Commission does not find that the respondent Government can be held
responsible for this failure. Moreover, the applicant's request to
examine his wife before the Regional Court was granted by the Regional
Court and she in fact appeared before this court. The defence was thus
provided with an opportunity to examine her. However, before the
Regional Court the applicant's wife decided to avail herself of her
right, as a member of the applicant's family, not to give evidence.
It would clearly have been preferable if it had been possible to
examine her in person at the trial, but subject to the rights of the
defence being respected, it was open to the domestic court to have
regard to her previous statements, in particular in view of the fact
that it could consider them to be corroborated by other evidence before
it, including the police report of 16 September 1990, the written
statement of 24 September 1990 by the doctor who had examined the
applicant's wife and the applicant's own letters to his wife (cf.
mutatis mutandis Eur. Court H.R., Asch judgment of 26 April 1991,
Series A no. 203, pp. 10-11, para. 28).
Furthermore, the applicant has been provided with ample
opportunity to challenge his wife's statement before the investigating
judge and to put his own version of events, first to the police and
later to the courts. However, before the Regional Court he preferred
to remain silent and before the Court of Appeal he basically claimed
his innocence and stated he could not declare what had happened on
12 September 1990, whilst he confirmed that he had written the letter
with the heading "Fri-Sat-Sun".
The Commission notes that the applicant's wife's statements
before the investigating judge did not constitute the only or decisive
item of evidence on which the domestic courts based their conviction.
The applicant's conviction was also based on the police report of
16 September 1990, the written statement of 24 September 1990 by the
doctor who had examined the applicant's wife, the letter with the
heading "Fri-Sat-Sun" and the applicant's statement of 14 October 1991
before the Court of Appeal.
Moreover, there is no indication that the applicant requested the
trial courts to examine the police officers, who had found him and his
wife on 16 September 1990, about their own findings or to call any
other witnesses.
In these circumstances, the Commission finds no appearance that
the criminal proceedings against the applicant in respect of the
administration of the evidence or in any other respect were 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, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy