AS TO THE ADMISSIBILITY OF
Application No. 23508/94
by Hayati SAN
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 11 May 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
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 November 1993
by Hayati SAN against the Netherlands and registered on
17 February 1994 under file No. 23508/94;
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 Turkish citizen, born in 1957 and residing at
Apeldoorn, the Netherlands. He is represented before the Commission by
Mrs. A. J. Zeyl, a lawyer practising at Zutphen, the Netherlands.
The facts, as submitted by the applicant, may be summarised as
follows.
On 18 October 1991 the applicant was convicted by the Regional
Court (Arrondissementsrechtbank) of Zutphen of complicity in narcotics
offences and sentenced to four years' imprisonment. On 31 March 1992
the Court of Appeal (Gerechtshof) of Arnhem acquitted the applicant in
respect of some of the charges but confirmed the conviction in respect
of one charge and confirmed the prison sentence of four years.
The applicant lodged an appeal in cassation with the Supreme
Court (Hoge Raad). In his appeal he stated that he and another person,
K., had both been suspected of having committed the same criminal
offence but only the applicant, and not K., had been charged with the
offence. Moreover, the proceedings against three other persons, C., H.
and P., had been conducted separately and had resulted in prison
sentences of two and a half years and three years respectively, whereas
the applicant had been sentenced to four years' imprisonment. In these
respects there was a lack of equal treatment and arbitrariness.
Moreover, the Court of Appeal had not given any reasons for rejecting
the applicant's arguments on these points.
In its judgment of 18 May 1993 the Supreme Court stated that the
Court of Appeal ought to have given reasons for rejecting the
applicant's arguments. However, this did not mean that its judgment had
to be quashed since there were grounds on which the Court of Appeal
could have rejected the applicant's arguments. In particular, the fact
that one suspect and not his accomplice is prosecuted did not, in the
view of the Supreme Court, justify the conclusion that there was a
breach of the principle of equal treatment or that the authorities had
acted in an arbitrary way. Moreover, the separation of proceedings
against several accomplices could not be objected to on the ground that
this could lead to a difference in the severity of the penalties. On
these grounds the Supreme Court rejected the applicant's appeal.
COMPLAINTS
The applicant complains of violations of Articles 6 and 14 of the
Convention in that, on the one hand, the applicant, but not his
accomplice K., was prosecuted and, on the other hand, the case of C.,
H. and P., which formed one whole together with the applicant's own
case, was separated from that case with the result that the applicant
was punished more severely than these three co-accused. He also
complains of the Court of Appeal's failure to give reasons for the
rejection of his appeal insofar as it was based on these procedural
deficiencies.
THE LAW
The applicant complains of violations of Articles 6 and 14
(Art. 6, 14) of the Convention in that he, as regards his prosecution
and sentence, did not receive the same treatment as his accomplices K.,
C., H., and P.
Article 6 para. 1 (Art. 6-1) of the Convention provides, insofar
as relevant:
"In the determination of ..... any criminal charge against him,
everyone is entitled to a fair ..... hearing ..... by an
independent and impartial tribunal established by law."
Article 14 (Art. 14) of the Convention provides:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission notes that the main question in the present case
is whether the applicant has been discriminated against in the
enjoyment of his right to a fair court hearing guaranteed by Article
6 (Art. 6) in that he was treated differently, and more severely, than
four other persons who had been involved in the same criminal acts. One
of these four persons had not been prosecuted and the other three had
been sentenced to shorter terms of imprisonment than the applicant.
It must be emphasised that the domestic prosecuting authorities
are in the best position to evaluate whether the case against a certain
person is sufficiently strong for criminal proceedings to be brought
against him and that, where there are two suspects, there may well be
differences as regards the evidence which justify that proceedings are
brought only against one of them. Moreover, as regards the
determination of penalties, the courts having heard a case are in the
best position to make such a determination which is often based not
only on the gravity of the offence but also on a number of other
factors such as the character of the accused and his criminal record
and general way of life.
Having regard to these general considerations, the Commission
cannot find it established that the situation of the four persons with
whom the applicant compares himself was identical to that of the
applicant himself insofar as the bringing of criminal proceedings and
the imposition of punishment were concerned. For these reasons, it has
not been shown that the applicant has been the subject of
discriminatory treatment.
Furthermore, as regards the failure of the Court of Appeal to
give reasons for its rejection of the applicant's arguments on these
points, the Commission notes that the Supreme Court, in its judgment
of 18 May 1993, indicated the reasons justifying the rejection of these
arguments. Consequently, any deficiency in the Court of Appeal's
judgment in regard to this matter must be considered to have been
remedied by the Supreme Court.
It follows that the application is manifestly ill-founded and
should be declared inadmissible in accordance with 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