AS TO THE ADMISSIBILITY OF
Application No. 20489/92
by Caspar ISING
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 30 April 1992
by Caspar ISING against the Netherlands and registered on 10
August 1992 under file No. 20489/92;
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 1960, and resides
at Kaatsheuvel.
The facts of the case, as submitted by the applicant, may
be summarized as follows.
In October 1986, the police seized two cars owned by the
applicant. The cars were not insured and had not been subjected
to the periodical inspection which is required by law. On 1 June
1987 the District Court (Kantongerecht) of Tilburg sentenced the
applicant to a fine and imposed a conditional suspension of his
driving licence for three months. The District Court further
ordered the confiscation of the two cars.
Following the applicant's appeal, the Regional Court (Arron-
dissementsrechtbank) of Breda, in its judgment of 14 December
1987, quashed the decision of 1 June 1987, lowered the fine and
decided that only one car be confiscated. The conditional
suspension of his driving licence was upheld.
The applicant appealed in cassation to the Supreme Court
(Hoge Raad). He also submitted a complaint to the Procurator
General (Procureur-generaal bij de Hoge Raad) on 8 December 1988.
He complained that the President of the Regional Court had been
biased against him and that the procès-verbal of the hearing
before the Regional Court was inadequate. Pursuant to Section 14a
of the Act on the Judicial Organisation (Wet op de Rechterlijke
Organisatie), the applicant requested the Procurator General to
submit his complaints to the Supreme Court in order to have them
investigated. The Procurator General, after having investigated
the case, rejected the request by letter of 28 January 1989.
On 2 May 1989 the Supreme Court quashed the Regional Court's
judgment on formal grounds and referred the case to the Court of
Appeal (Gerechtshof) of 's-Hertogenbosch for a full new
examination of the applicant's appeal against the decision of 1
June 1987.
In the course of the subsequent proceedings before the Court
of Appeal, the applicant wanted to make recordings at the
hearing, but the President prohibited this. Five witnesses were
heard, among whom three policemen. The Court of Appeal refused
the applicant's request to summon two further policemen for an
examination before the Court of Appeal, finding no grounds for
granting this request. On 30 March 1990 the applicant was
convicted and sentenced to a fine whereas one car was
confiscated.
The applicant again appealed in cassation to the Supreme
Court. Referring to Article 6 of the Convention, he complained,
inter alia, that he was denied the possibility to make recordings
at the hearing before the Court of Appeal and that his request
to hear two further witnesses had been rejected.
The Supreme Court rejected the appeal on 5 November 1991.
It held, inter alia, that generally speaking the right to have
"adequate facilities for the preparation of his defence", as
provided for by Article 6 of the Convention, does not include the
right to make recordings of the hearing, whereas the applicant
had not shown any special circumstances warranting an exception
to this rule. With respect to the second complaint, the Supreme
Court held that the Court of Appeal could reasonably have
considered that it was unnecessary to hear two more witnesses,
whereas the applicant had not substantiated the importance of
hearing these witnesses.
COMPLAINTS
The applicant complains under Article 6 paras. 1 and 3 of
the Convention that his request to hear two further witnesses was
rejected and that he was denied the possibility to make
recordings at the hearing before the Court of Appeal.
The applicant complains under Article 13 of the Convention
that the Procurator General rejected his request for a Supreme
Court investigation of his complaints relating to the President
of the Breda Regional Court and the procès-verbal of the hearing
before the Regional Court which he considered inadequate.
THE LAW
1. The applicant complains under Article 6 paras. 1 and 3
(Art. 6-1, 6-3) of the Convention that his request to hear two
further witnesses was rejected and that he was denied the
possibility to make recordings at the hearing before the Court
of Appeal.
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:
(...)
(b) to have adequate (...) facilities for the preparation
of his defence;
(...)
(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."
As the guarantees in para. 3 of Article 6 (Art. 6-3) are
specific aspects of the right to a fair trial set forth in
paragraph 1
(Art. 6-1), the Commission will consider the complaints under the
two provisions taken together (cf. Eur.Court H.R., Asch judgment
of 26 April 1991, Series A no. 203, p. 10 para. 25).
In respect of the complaint that the Court of Appeal
rejected the applicant's request to examine two further witnesses
the Commission recalls that Article 6 (Art. 6) of the Convention
does not give the accused an absolute right to obtain the
examination of witnesses on his behalf. The judge may refuse to
hear a witness if he considers that the witness's statement would
not be relevant (cf. No. 10486/83, Dec. 9.10.1983, D.R. 49 p.
86).
The Commission observes that the Court of Appeal, having
heard five witnesses, considered it unnecessary to summon two
further witnesses. The applicant has not submitted any details
in support of his general complaint that the refusal to hear
these witnesses affected the fairness of his trial.
The Commission, consequently, finds no indication that the
Court of Appeal failed to consider relevant evidence or that it
rejected the applicant's request in an arbitrary and unfair
manner, and that, therefore, the Court's rejection of the
applicant's request rendered the hearing of his case unfair.
As to the applicant's complaint that he was prohibited from
recording during the proceedings before the Court of Appeal, the
Supreme Court held that, generally speaking, the right to have
"adequate facilities for the preparation of his defence" does not
include the right to make recordings of the hearing, whereas the
applicant had not shown any special circumstances warranting an
exception to this rule. The Commission finds that the applicant
has not shown that the prohibition at issue prejudiced his right
to a fair hearing as guaranteed by Article 6 (Art. 6) of the
Convention and, consequently, finds no indication in the case-
file that the criminal proceedings against the applicant were
unfair in this respect.
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant further complains that the Procurator General
rejected his request for a Supreme Court investigation of his
complaints relating to the President of the Breda Regional Court
and the procès-verbal of the hearing before the Regional Court
which he considered inadequate. He relies on Article 13 (Art. 13)
which provides:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
The Commission notes that, following the applicant's appeal
in cassation, the Supreme Court quashed the judgment of the
Regional Court of Breda on formal grounds and referred the case
to the Court of Appeal of 's-Hertogenbosch, which again examined
the applicant's appeal.
In these circumstances, the Commission considers that the
applicant can no longer claim to be a victim of a violation of
the Convention within the meaning of Article 25 (Art. 25) of the
Convention in respect of the proceedings before the Regional
Court of Breda.
It follows that this complaint must be rejected under
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