AS TO THE ADMISSIBILITY OF
Application No. 29838/96
by Ivan SLOBODAN
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 15 January 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
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 20 September 1995
by Ivan SLOBODAN against the Netherlands and registered on
19 January 1996 under file No. 29838/96;
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 citizen, born in 1938 in Yugoslavia, and
residing in Zwolle. Before the Commission he is not represented by a
lawyer.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In October and November 1992 Ms. D. and Ms. W. informed the
police that they had been raped by the applicant. Also in November 1992
the applicant's former wife and his daughter informed the police that
the latter had been sexually abused by him. In her statement the
applicant's former wife stated that during their marriage she had been
ill-treated by the applicant and that she had fled to a reception
centre for battered women with her daughter whom she thought to have
been sexually abused by the applicant.
On 11 November 1992 Ms. D. was heard by the Investigating Judge
(Rechter-Commissaris) of the Regional Court (Arrondissementsrechtbank)
of Zwolle. The applicant's lawyer had been informed of the time and
place of the hearing of Ms. D. but he chose not to attend. On
28 January 1993 the applicant's former wife and his daughter were heard
by the Investigating Judge in the presence of the applicant's lawyer.
In spite of various requests the applicant has failed to submit
a copy of the judgment of the Regional Court of Zwolle. However, it
appears from the file that on 11 May 1993 the Regional Court acquitted
the applicant of both counts of rape and convicted him of having
sexually abused his daughter and that both the applicant and the public
prosecutor filed an appeal against this judgment with the Court of
Appeal. It further appears that the applicant's conviction by the
Regional Court was based on, inter alia, the testimony of his daughter
before the Investigating Judge and a psychiatrist's report concerning
the daughter.
At the subsequent hearing on appeal before the Court of Appeal
(Gerechtshof) of Arnhem on 17 December 1993 the alleged rape victim
Ms. W. was heard in the absence of the applicant. However, the
applicant's defence counsel was able to put questions to Ms. W. The
Court of Appeal did not call the three other witnesses (the second
alleged rape victim Ms. D., the applicant's former wife and his
daughter), despite a request from the applicant. The Court of Appeal
held that these witnesses had already been heard by the Investigating
Judge and recalled that the applicant's defence counsel had been
granted the opportunity to put questions to these witnesses. It
considered that the applicant could not reasonably be held to have been
prejudiced in his defence by the refusal to summon the witnesses.
In its judgment of 29 December 1993, the Court of Appeal quashed
the judgment of the Regional Court and, after a new examination of the
facts and evidence, convicted the applicant of all charges and
sentenced him to a partially suspended term of three years'
imprisonment. The Court of Appeal used the following in evidence
against the applicant:
- a statement of the alleged rape victim Ms. W. to the police and
her statement given before the Court of Appeal;
- a statement of the alleged rape victim Ms. D. to the police and
her statement before the Investigating Judge;
- a statement of a neighbour of the applicant to the police;
- various statements of the applicant to the police;
- a statement of the applicant at the hearing before the Regional
Court;
- a statement of the applicant's former wife to the police;
- a statement of the applicant's daughter to the police;
- the birth-certificate of the applicant's daughter; and
- a statement of a police officer.
The applicant filed an appeal in cassation against this decision
with the Supreme Court (Hoge Raad). He complained, inter alia, that the
Court of Appeal had not allowed the examination of three witnesses (his
former wife, his daughter and one of the alleged rape victims) and that
the Court of Appeal had also not allowed him to attend the Court's
examination of the second alleged rape victim.
The Supreme Court rejected the appeal in cassation on
4 April 1995.
Relevant domestic law and practice
Section 292 of the Code of Criminal Procedure (Wetboek van
Strafvordering) enables the President of a Court to order an accused
to leave the courtroom so that a witness may be examined in the absence
of the accused. If such an order is made, counsel for the defence may
question the witness and the accused shall be told immediately what has
happened during his absence and only then will the investigation be
resumed.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention that
his wrongful conviction amounted to ill-treatment.
2. He further complains under Article 5 of the Convention that since
he was wrongfully convicted his detention is unlawful.
3. The applicant also complains under Article 6 paras. 1 and 3 (d)
of the Convention that the Court of Appeal failed to summon three
witnesses. In addition, he complains that he had not been allowed to
attend the Court of Appeal's examination of a further witness.
4. Finally, he invokes Article 14 of the Convention without further
substantiation.
THE LAW
1. The applicant complains that his wrongful conviction amounted to
treatment contrary to Article 3 (Art. 3) of the Convention.
Article 3 (Art. 3) of the Convention reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission recalls that it is no court of appeal from
domestic courts. It cannot examine allegations that the domestic courts
incorrectly assessed the facts before them or incorrectly applied
domestic law. The Commission is, therefore, unable to determine whether
or not the applicant was wrongfully convicted.
Consequently, the Commission finds that this part of the
application is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant further complains under Article 5 (Art. 5) of the
Convention that his detention is unlawful.
Article 5 para. 1 (Art. 5-1) of the Convention reads, insofar as
relevant, as follows:
"Everyone has the right to liberty and security of person. No one
shall be deprived of his liberty save in the following cases and
in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a
competent court; ..."
The Commission refers to its reasoning concerning the complaint
under Article 3 (Art. 3) of the Convention above. Furthermore, there
is nothing in the present case which could warrant the conclusion that
the applicant was not convicted by a competent court.
Accordingly, the Commission finds that this part of the
application is also manifestly ill-founded within the meaning of
Article 27, para. 2 (Art. 27-2) of the Convention.
3. The applicant further complains that the Court of Appeal failed
to summon his former wife, his daughter and one of the alleged rape
victims as witnesses. He also complains that he was not allowed to
attend the Court of Appeal's examination of the second alleged rape
victim. He invokes Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of
the Convention, which, insofar as relevant, provide as follows:
"1. In the determination ... of any criminal charge against him,
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law.
...
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 from the outset that the taking of
evidence is governed primarily by the rules of domestic law and it is
in principle for the national courts to assess the evidence before
them. It is therefore not the Commission's task to decide whether the
national courts have correctly assessed the evidence, but to determinew
hether the proceedings as a whole, including the way in which evidence
was taken, were fair as required by Article 6 para. 1 (Art. 6-1) (cf.
Eur. Court HR, Kostovski v. the Netherlands judgment of 20 November
1989, Series A no. 166, p. 19, para. 39.)
Also, Article 6 para. 3 (d) (Art. 6-3-d) of the Convention does
not give an accused an unlimited right to obtain the examination of
witnesses. It is in principle within the discretionary power of
domestic courts to establish whether the hearing of witnesses is likely
to be of assistance for discovering the truth and, if not, to refuse
the calling of such witnesses (cf. Eur. Court HR, Bricmont v. France
judgment of 7 July 1989, Series A no. 158, p. 31, para. 89).
Furthermore, the Commission reiterates that the Convention does
not preclude reliance on statements obtained at the stage of the police
inquiry and the judicial investigation, 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 he was making his statements
or at a later stage of the proceedings (cf. Eur. Court HR, Saïdi v.
France judgment of 20 September 1993, Series A no. 261-C, p. 56,
para. 43).
As to the notion of "witness", the Commission notes that although
the applicant's former wife, his daughter and the alleged rape victim
Ms. D. did not testify at the hearing, they should for the purposes of
Article 6 para. 3 (d) (Art. 6-3-d) of the Convention, be regarded as
a witness - a term to be given its autonomous interpretation - because
their statements, as taken down by the police and the investigating
judge, were used in evidence by the Court of Appeal (cf. Eur. Court HR,
Asch v. Austria judgment of 26 April 1991, Series A no. 203, p. 10,
para. 25).
The Commission, moreover, has had regard to the Court's judgment
in the case of Doorson v. the Netherlands (Eur. Court HR, judgment of
26 March 1996, to be published in Reports 1996) in which it is
considered that Article 6 (Art. 6) of the Convention does not
explicitly require the interests of witnesses in general, and those of
victims called upon to testify in particular, to be taken into
consideration but that, however, their life, liberty or security of
person may be at stake, as may interests coming generally within the
ambit of Article 8 (Art. 8) of the Convention. Such interests of
witnesses and victims are in principle protected by other, substantive
provisions of the Convention, which imply that the Contracting States
should organise their criminal proceedings in such a way that those
interests are not unjustifiably imperilled. Against this background,
principles of fair trial also require that in appropriate cases the
interests of the defence are balanced against those of witnesses or
victims called upon to testify (op. cit., para. 70).
In addition, the Commission has previously held that criminal
proceedings concerning rape contain special features in that they are
often conceived of as an ordeal by the victim, in particular when the
latter is unwillingly confronted with the defendant. In the assessment
of the question whether or not in such proceedings an accused received
a fair trial, account must be taken of the right to respect for the
victim's private life. The Commission has accepted that in criminal
proceedings concerning sexual abuse certain measures may be taken for
the purpose of protecting the victim, provided that such measures can
be reconciled with an adequate and effective exercise of the rights of
defence (cf. Baegen v. the Netherlands, Comm. Rep. 20.10.1994,
para. 77, Eur. Court HR, Series A no. 327-B, p. 44).
In the present case the Commission notes that the applicant's
former wife and his daughter were heard by an Investigating Judge in
the presence of the applicant's defence counsel. The Commission
observes, furthermore, that it has not been submitted by the applicant
that his defence counsel was unable to put questions to the above
mentioned witnesses. Moreover, counsel was enabled to attend the
hearing by the Investigating Judge of the alleged rape victim Ms. D.
but he chose not to do so.
The Commission observes that the Court of Appeal refused to
accede to the applicant's request to summon the three witnesses since
they had already been heard by the Investigating Judge and the
applicant's defence counsel had then been given the opportunity to
question the witnesses. For this reason the Court of Appeal found that
its refusal to summon the witnesses could not be considered prejudicial
to the applicant's defence. The Commission finds that in the
circumstances of the present case the refusal to summon the three
witnesses does not appear to be unreasonable or arbitrary. Moreover,
the Commission considers that, although the applicant's former wife did
not allege to be a victim, special circumstances existed which
justified the decision not to confront her with the applicant during
the trial. In this respect the Commission recalls that she had alleged
having been ill-treated by the applicant during their marriage as a
result of which she had fled to a reception centre for battered women
with her daughter whom she thought to have been sexually abused by the
applicant.
As regards the applicant's complaint that he was not allowed to
attend the Court of Appeal's examination of the alleged rape victim
Ms. W., the Commission observes that the applicant's defence counsel
was allowed to question this witness at the hearing before the Court
of Appeal.
Furthermore, it does not appear that, in the course of the
criminal proceedings against him, during which he was represented
throughout, the applicant had no opportunity to challenge the
witnesses' versions of the events, could not properly challenge their
reliability, or could not challenge the other evidence against him.
In these circumstances the Commission is of the opinion that the
criminal proceedings against the applicant, considered as a whole,
cannot be regarded as unfair.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicant finally complains under Article 14 (Art. 14) of the
Convention.
The applicant has failed to substantiate this complaint. The
Commission considers that the circumstances of the present case do not
disclose any appearance of a violation of this right under the
Convention.
It follows that this part of the application is also 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.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy