AS TO THE ADMISSIBILITY OF
Application No. 12305/86
by D.V.
against Belgium
The European Commission of Human Rights sitting in private
on 6 March 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 25 April 1986
by D.V. against the Netherlands and registered
on 4 August 1986 under file No. 12305/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Belgian citizen, born in 1955 and presently
residing in L., Belgium.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
On 7 September 1983 the applicant was arrested on suspicion of
having committed armed robbery together with several others.
By judgment of 15 May 1984 the Regional Court (Rechtbank van
eerste aanleg) of Hasselt convicted the applicant of complicity in an
armed robbery. He was sentenced to 36 months' imprisonment.
On 28 May 1984 the applicant appealed to the Court of Appeal
(Hof van Beroep) of Antwerpen. He submitted, inter alia, that a
supplementary investigation by the police should have been held, as he
had changed his confession. During such a supplementary investigation
he could be confronted with several witnesses who had testified
against him.
On 29 June 1984 the Court of Appeal of Antwerpen decided on
the applicant's request for release pending trial. It decided by
mistake that there was no reason to order the applicant's immediate
"arrest". By decision of 23 November 1984 the Court of Appeal
corrected the decision of 29 June 1984 and decided that there was no
reason to order the applicant's immediate release. The applicant
again asked for release pending trial. The request was granted. On
28 November 1984 the applicant was provisionally released.
By judgment of 25 January 1985 the Court of Appeal convicted
the applicant and sentenced him to four years' imprisonment. The
decision was based on various pieces of evidence. The Court held that
the applicant was wrong to complain that no supplementary
investigation had been held because he only asked for it after the
judgment in first instance; that at the applicant's request one
witness had been heard by the Court; and that the applicant's right to
defend himself had not been violated by the fact that the
investigators had not found it necessary or advisable to confront the
applicant with several witnesses. The composition of the Court of
Appeal was the same as the composition of the Court of Appeal that had
taken the decisions in the applicant's case on 29 June 1984 and 23
November 1984.
The applicant appealed to the Court of Cassation (Hof van
Cassatie). He invoked, inter alia, Article 6 para. 3 (d) of the
Convention. He submitted that, as he had an alibi and numerous
testimonies in his favour, the testimonies of people with whom he had
not been confronted could not be held against him.
By judgment of 29 October 1985 the Court of Cassation rejected
the appeal. It held, inter alia, that the fact that a judge rejects a
request for a supplementary investigation because he does not consider
this measure necessary for the forming of his opinion, does not imply
that the right to defend oneself is violated. It pointed out that the
Court of Appeal had dealt with the applicant's alibi and the
testimonies in his favour comprehensively and had rejected them.
COMPLAINTS
1. The applicant complains that the Court of Appeal of Antwerpen,
that decided on 25 January 1985, was composed of the same judges who
had decided on the applicant's request for release pending trial on 29
June 1984 and 23 November 1984. These judges were, therefore, not
impartial. He invokes Article 6 para. 1 of the Convention.
2. The applicant complains that the Court of Appeal refused to
call certain persons as witnesses and to examine them, although he had
requested this.
He invokes Article 6 para. 3 (d) of the Convention.
THE LAW
1. The applicant has complained that the Court of Appeal,
deciding on 25 January 1985, was not impartial as its composition was
similar to that of the Court that decided on his request for release
pending trial. He has invoked Article 6 para. 1 (Art. 6-1) of the Convention.
However, the Commission is not required to decide whether or
not the facts alleged by the applicant disclose any appearance of a violation
of this provision as, under Article 26 (Art. 26) of the Convention, it may only
deal with a matter after all domestic remedies have been exhausted according to
the generally recognised rules of international law.
The mere fact that the applicant has submitted his case to the various
competent courts does not of itself constitute compliance with this rule. It
is also required that the substance of any complaint made before the Commission
should have been raised during the proceedings concerned. In this respect the
Commission refers to its established case-law (see e.g. No. 1103/61, Dec.
12.3.62 Yearbook 5, pp. 168, 186; No. 5574/72, Dec. 21.3.75, D.R. 3, pp. 10,
15; No. 10307/83, Dec. 6.3.84, D.R. 37, pp. 113, 120).
In the present case the applicant did not raise, either in form or in
substance, in the proceedings before the Court of Cassation the complaint which
he now makes before the Commission. Moreover, an examination of the case does
not disclose the existence of any special circumstances which might have
absolved the applicant, according to the generally recognised rules of
international law, from raising his complaint in the proceedings referred to.
It follows that the applicant has not complied with the condition as to
the exhaustion of domestic remedies and his application must in this respect be
rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicant has complained that the Court of Appeal refused to call
certain persons as witnesses and to examine them, although he requested this.
He has invoked Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.
The Commission notes that it does not appear from the facts, as
submitted by the applicant, that the applicant requested the Court of Appeal to
call certain persons as witnesses and to examine them. From the facts, as
submitted by the applicant, it only appears that the applicant requested a
supplementary investigation by the police.
However, even assuming that the applicant exhausted the remedies
available to him under Belgian law, the Commission refers in this respect to
its constant case-law according to which Article 6 para. 3 (d) (Art. 6-3-d) of
the Convention does not grant the defence total freedom to call any potential
witness at any time in the proceedings. It is in principle within the
discretionary power of the national courts of the Contracting States to
establish whether the hearing of witnesses is likely to be of assistance in
discovering the truth and, if not, to decide against the calling of such
witnesses (cf. e.g. No. 8231/78, Dec. 6.3.82, D.R. 28 p. 5).
The Commission notes that, in the present case, the Court of Appeal had
rejected the applicant's alibi and the testimonies in his favour. The
applicant's conviction was based on various pieces of evidence. It does not
appear that the Court of Appeal's decision not to call witnesses was unfair or
arbitrary.
An examination by the Commission of this complaint as it has been
submitted does not, therefore, disclose any appearance of a violation of the
rights and freedoms set out in the Convention and in particular in the above
Article.
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
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)