AS TO THE ADMISSIBILITY OF
Application No. 21645/93
by R.B.
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 1 April 1993
by R.B. against the Netherlands and registered on 8 April 1993
under file No. 21645/93;
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 Dutch national, born in 1961, and resides
at Zoetermeer, the Netherlands. Before the Commission he is
represented by B.R. Angad Gaur, a lawyer practising in The Hague.
The facts of the case, as submitted by the applicant, may
be summarised as follows.
On 14 February 1990 the applicant and D.R. were arrested by
the Municipal Police of Utrecht on the suspicion of dealing in
drugs. On the occasion of his arrest the applicant dropped a
plastic bag on the floor, which turned out to contain 19 small
balls (bolletjes) of cocaine. On the same day A.L. was
confronted with the applicant and subsequently with D.R. by way
of a two-way mirror. A.L. recognised both men as dealers in both
cocaine and heroin, from both of whom he had bought drugs on
several occasions. The applicant and D.R. were also confronted
with H.H. by way of a two-way mirror. H.H. recognised them as
drug dealers and stated that he had bought both cocaine and
heroin from D.R.
On 15 February 1990 the applicant stated before the police
that, together with D.R. he had bought cocaine and made small
balls of cocaine and, with the assistance of a certain J., had
sold these balls to several persons in the Utrecht shopping
centre Hoog Catharijne. D.R. made a similar declaration to the
police.
At his trial on 22 May 1990, the applicant, assisted by his
lawyer, stated that he had supplied cocaine on several occasions
between 1 January 1990 and 14 February 1990 and that on
14 February 1990 he had carried 19 balls of cocaine which he had
made with D.R. The Regional Court (Arrondissementsrechtbank) of
Utrecht, in its judgment of 5 June 1990, convicted the applicant
of supplying and possessing of drugs and sentenced him to nine
months' imprisonment, of which three months suspended pending a
probation period of two years. The Regional Court based its
conviction on the applicant's statements before the police and
the Regional Court, the statements of D.R., A.L. and H.H. before
the police, the police reports of the applicant's arrest and
reports by the forensic laboratory. The applicant filed an
appeal with the Court of Appeal (Gerechtshof).
In the course of the hearing of 19 September 1991 before the
Court of Appeal the applicant, assisted by his lawyer, withdrew
his statements before the police and the Regional Court and
denied having supplied and sold cocaine. He alleged that the
cocaine found on him was intended for his own personal use and
requested that A.L. and H.H. be examined before the investigating
judge (rechter-commissaris).
On 3 October 1991 the Court of Appeal upheld the judgment
of the Regional Court. It rejected the applicant's request to
have A.L. and H.H. examined before the investigating judge,
considering that it was sufficiently informed about the applicant
and that it was not necessary to examine these witnesses.
The applicant's appeal in cassation was rejected on 13
October 1992 by the Supreme Court (Hoge Raad). The Supreme Court
found that the Court of Appeal had lawfully rejected the request
to have A.L. and H.H. examined, whereas the Supreme Court could
not examine the merits of this request, since a decision on the
necessity of hearing witnesses falls within the competence of the
judge dealing with the facts of the case.
As to the applicant's complaint that he should have been
given a conditional sentence in view of, inter alia, his personal
situation and the fact that it was his first offence, the Supreme
Court considered that such a complaint could not be raised in an
appeal in cassation.
COMPLAINTS
The applicant complains under Article 6 paras. 1 and 3(d)
of the Convention, that he did not receive a fair trial in that
the Court of Appeal refused his request to have A.L. and H.H.
examined by the investigating judge and that the Court of Appeal
and the Supreme Court did not properly respond to his argument
that the sentence imposed should be made conditional.
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 did not receive a
fair trial in that the Court of Appeal refused his request to
have A.L. and H.H. examined by the investigating judge and that
the courts did not properly respond to his argument relating to
the sentence imposed.
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;
(...)."
2. The Commission recalls at the outset that 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 or freedoms set out in the
Convention (cf. No. 12013/86, Dec. 10.3.89, D.R. 59, p. 111).
3. The applicant complains that he did not receive a fair trial
in the determination of the criminal charges against him, in that
the Court of Appeal rejected his request that A.L. and H.H.,
whose statements were used in evidence, should be examined by the
investigating judge.
The guarantees in paras. 2 and 3 (d) of Article 6
(Art. 6-2, 6-3-d) of the Convention are specific aspects of the
right to a fair trial set forth in paragraph 1. The Commission
will consider the complaints under Article 6 paras. 1, 2 and 3
(Art. 6-1+6-2+6-3) taken together (cf. mutatis mutandis, Eur.
Court H.R., Asch judgment of 26 April 1991, Series A no. 203, p.
10 para. 25).
The Commission recalls that the taking of evidence is
governed primarily by the rules of domestic law and that it is
in principle for the national courts to assess the evidence
before them (cf. Eur. Court H.R., Saïdi judgment of 20 September
1993, to be published in Series A no. 261-C, para. 43).
The Commission notes that the applicant declared before the
police and the Regional Court that he had supplied cocaine on
several occasions between 1 January 1990 and 14 February 1990 and
that on 14 February 1990 he had carried 19 balls of cocaine,
which declaration was supported by the statements of D.R., A.L.
and H.H. and the police reports on his arrest, and that he
withdrew his declaration before the Court of Appeal in respect
of the supplying and selling of cocaine.
The Commission recalls that, where a court is confronted
with a contradiction between an earlier statement and subsequent
evidence at the trial, it is the task of this court to consider
the credibility of the declarations involved (cf. No. 8414/78,
Dec. 4.7.1979, D.R. 17 p. 231). The task of the Convention
organs in this respect is to ascertain whether the proceedings
considered as a whole, including the way in which the evidence
was taken, were fair (Saïdi judgment, ibid., para. 43).
The Commission notes that the applicant and his lawyer were
given ample opportunity before the Court of Appeal to challenge
the statements of D.R., A.L. and H.H. and the other evidence
before the Court and to convince the Court of Appeal of the
necessity to have A.L. and H.H. examined.
Recalling that it is in principle within the discretionary
power of the national courts to establish whether the hearing of
witnesses is likely to be of assistance for discovering the truth
and, if not, to decide against the calling of such witnesses (cf.
No. 8231/78, Dec. 6.3.82, D.R. 28 p. 5) and noting that the
applicant's conviction was, inter alia, based on his declarations
before the police and the Regional Court that he had in fact
committed the acts he was charged with, the Commission cannot
find that the rejection of the applicant's request to examine
A.L. and H.H. deprived him of a fair hearing as required by
Article 6 (Art. 6).
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
4. As to the applicant's complaint that the domestic courts did
not properly respond to his argument in respect of the sentence
imposed by the Regional Court, the Commission finds no appearance
of a violation of the Convention.
It follows that this part of 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 Second Chamber President of the Second
Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy