VAN DER TAS v. THE NETHERLANDS



                      AS TO THE ADMISSIBILITY OF

                      Application No. 31469/96

                      by Leendert VAN DER TAS

                      against the Netherlands

     The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 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

                 A. ARABADJIEV

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 16 October 1995

by Leendert VAN DER TAS against the Netherlands and registered on

13 May 1996 under file No. 31469/96;

     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 national, born in 1949, and resides in

Breda, the Netherlands. He exploits a cattle farm. In the proceedings

before the Commission he is represented by Mr L.J.L. Heukels, a lawyer

practising in Haarlem.

     The facts of the case, as submitted by the applicant, may be

summarised as follows.

a.   Particular circumstances of the present case

I.

     On 22 June 1989, with the applicant's consent, three officials

of the General Inspection Department (Algemene Inspectiedienst,

hereinafter referred to as "AID") of the Ministry of Agriculture,

Nature Management and Fisheries (Ministerie van Landbouw, Natuurbeheer

en Visserij) searched the applicant's car. They found thirteen lots of

veterinarian drugs. They took samples of these drugs and seized them.

The samples were found to contain substances referred to in Article 1

of the Regulation veterinarian drugs and drug containing food

(Kanalisatieregeling diergeneesmiddelen en gemedicineerde voeders).

     On 23 June 1989, three AID officials took urine samples and

counter samples of 11 cows on the farm of Mr P.V., who had allowed the

taking of these samples. The samples were sealed and sent for

laboratory tests. Three of these samples were tested and found positive

for 17 x-Ethenylestradiol, a growth inducing hormonal substance.

     On 11 October 1989, the cows on the farm of Mr L.V.M. were

controlled by AID officials. They found that the conditions of 15 cows

about 15-20 months old and of 12 cows about 10 months old were not in

conformity  with the regulations in force. L.V.M. stated that these

animals had been previously owned by the applicant. L.V.M. had not yet

received the papers of these animals.

     Criminal proceedings for economic offences were instituted

against the applicant, who was ordered to appear before the Magistrate

for economic matters (economische politierechter, hereinafter referred

to as "Magistrate") of the Regional Court (Arrondissementsrechtbank)

of Breda.

     On 4 July 1990, the Magistrate found the applicant in default of

appearance, suspended the trial for an indefinite period and referred

the case to the investigating judge (Rechter-Commissaris) for further

investigation.

     On 11 April 1991, the proceedings before the Magistrate were

resumed. The Magistrate heard the applicant, who stated inter alia that

seven of the cows found in P.V.'s stable were jointly owned by P.V. and

himself and that he knew that on 23 June 1989 there were three cows in

P.V.'s stable to whom 17 x-Ethenylestradiol had been administered. He

further stated that he was the initial owner of the cattle found on the

farm of L.V.M. and that he had never sent the papers in respect of

these animals. The Magistrate further considered the evidence and heard

pleadings by the prosecution and the defence.

     On 23 April 1991, the Magistrate rendered an interim judgment

(tussenvonnis). On 25 April 1991, the Magistrate requested the Court

of Justice of the European Communities to make a preliminary ruling.

     On 10 June 1992, the Magistrate resumed the investigation of the

case. The defence requested an adjournment as the requested

preliminary ruling from the Court of Justice had not yet been issued.

The Magistrate suspended the proceedings for an indefinite period.

     On 8 October 1992, the Court of Justice of the European

Communities issued the preliminary ruling in the applicant's case. The

Court of Justice held that the Council Directives 81/602/EEC,

88/146/EEC and 86/469/EEC did not preclude an EC Member State from

prohibiting the possession of animals to whom substances with

oestrogenic, androgenic, gestagenic or thyreostatic effects had been

administered insofar as such a prohibition would respect the exceptions

contained in these Directives.

     On 2 December 1992, a further hearing took place before the

Magistrate. Upon the request of the prosecution, the Magistrate decided

to refer the case to the three judge economic section of the Regional

Court (meervoudige economische kamer van de Arrondissementsrechtbank)

in order to allow a simultaneous treatment of this case with a similar

case against the applicant.

II.

     On 19 August 1991, the Regional Court of Breda issued a search

warrant (huiszoeking ter inbeslagneming) to the investigating judge in

respect of the farm exploited by the applicant.

     On 6 September 1991, the premises of this farm were searched by

the investigating judge who was accompanied by two police officers, an

AID official and two officers of the Fiscal Intelligence and

Investigation Department (Fiscale Inlichtingen en Opsporingsdienst,

hereinafter referred to as "FIOD"). According to the investigating

judge's formal report of 9 September 1991 on the search, the farm hand

who was present on the premises and who was shown the Regional Court's

warrant had no objections against the search.

     At the request of the investigating judge and under the

supervision of the AID official a veterinarian took urine samples and

counter samples of three cows found on the farm premises. These samples

were sealed and entrusted to the investigating judge. An interim

measure (voorlopige maatregel) within the meaning of Article 28 of the

Act on Economic Offences (Wet op de Economische Delicten) was issued

in respect of these three animals. The investigating judge further took

food samples and seized several items, including syringes and several

bottles containing various substances.

     On the same day, another investigating judge searched the

applicant's private home. The applicant was absent and the person

present objected against the search. After this person had been shown

the search warrant issued by the Regional Court of Breda of

22 August 1991, the search was conducted. Substantial parts of the

applicant's personal administrative records were seized. Also the

contents of a post office box used by the applicant were seized.

     Two of the three urine samples taken on 6 September 1991 were

tested and found positive for clenbuterol, a substance with sympathico

mimetic effects.

     On 15 October 1991, the applicant admitted to the police that he

had administered clenbuterol to his cattle, knowing this was

prohibited.

     Criminal proceedings were instituted against the applicant, who

was summoned to appear before the Magistrate. On 6 October 1992, a

hearing took place before the Magistrate. The applicant was declared

in default of appearance and the proceedings were suspended for an

indefinite period. The Magistrate referred the case to the three judge

economic section of the Regional Court (meervoudige economische kamer

van de Arrondissementsrechtbank).

                                 III.

     On 18 January 1993, a hearing took place before the sixth

economic section of the Regional Court. With the consent of the

defence, the two sets of criminal proceedings against the applicant

were dealt with simultaneously. Invoking his right to remain silent,

the applicant refused to make any statement. The Regional Court

considered the evidence and heard pleadings by the prosecution and the

defence.

     By judgment of 1 February 1993, the Regional Court convicted the

applicant of various offences under the Decree on substances with

sympathico mimetic effects (Verordening stoffen met sympathico

mimetische werking), the Decree on substances with hormonal effects

(Verordening stoffen met hormonale werking), the Decree on control of

cattle disease (Verordening bestrijding runderziekten), the Act on

veterinarian drugs (Diergeneesmiddelenwet) and the Decree on

administration of substances with oestrogenic effects (Verordening

toediening van stoffen met oestrogene werking), respectively.

     In its determination of the sentence, the Regional Court had

regard to the applicant's multiple previous convictions of offences

under the Act on Economic Offences. It imposed two fines of 2,500 Dutch

guilders each, three fines of 2,500 Dutch guilders each, fifteen fines

of 100 Dutch guilders each, twelve fines of 100 Dutch guilders each,

one fine of 5,000 Dutch guilders and three fines of 2,500 Dutch

guilders each.

     Both the applicant and the prosecution filed an appeal with the

Court of Appeal (Gerechtshof) of 's-Hertogenbosch.

     The Court of Appeal considered the applicant's case on

22 April 1994, 6 May 1994 and 3 June 1994. The applicant was

represented by a lawyer. In the course of the appeal proceedings the

court ordered a reopening of the investigation and heard evidence from

the applicant and a number of witnesses, in particular on the way

samples were taken and handled.

     By judgment of 17 June 1994, the Court of Appeal quashed the

judgment of 1 February 1993, convicted the applicant of five counts of

having violated regulations referred to in Article 93 of the Industrial

Organisation Act (Wet op de Bedrijfsorganisatie) and an offence under

the Act on veterinarian drugs. It imposed two fines of 2,500 Dutch

guilders each, three fines of 2,500 Dutch guilders each, fifteen fines

of 100 Dutch guilders each, twelve fines of 100 Dutch guilders each,

a fine of 5,000 Dutch guilders and three fines of 2,500 Dutch guilders

each. It further ordered the confiscation of the two cows, whose urine

was tested and found positive for clenbuterol and a number of items

seized in the course of the investigation against the applicant.

     Insofar as the defence argued that the investigation, the taking

of samples and the investigation of these samples fell short of the

relevant legal requirements and should thus be considered as unlawfully

obtained evidence and that the absence of guarantees against abuse and

lack of judicial control over the taking of samples violate Article 8

of the Convention, the Court of Appeal held:

     "In general it must be noted that the civil servants who have

     taken the samples have stated their findings in written reports

     and in addition have been heard as witnesses at the trial, so

     that the judge and defence have been able to control the taking

     of the sample and the subsequent events in this connection. There

     is no legal rule requiring that the suspect must be present when

     samples are taken. There was therefore no question of unlawfully

     obtained evidence.

     As to the reliability of the taking, identification, packing and

     sending of the samples to the laboratory, it appears sufficiently

     from the evidence that these actions were in conformity with the

     conditions which can reasonably be set in this field.

     The court derives the following requirements from the Decision

     of the Commission of 14 July 1987 (87/410/EEC; Pb L 223):

     1. The samples must enable an adequate analysis, a repeated

     analysis and verification tests for confirmation;

     2. The samples must be marked in such a manner that

     identification is possible at each stage;

     3. The packing, storing and transport must not affect the sample

     in any way and must not influence the results of the analysis.

     All these conditions have been fulfilled.

     From the Implementing Order on the Regulation prohibition of

     administration of specific substances with hormonal effects (PVV)

     1987 (taking of samples) the court derives the condition that the

     controlling authority is to take a counter sample for the benefit

     of the person concerned. The taking and storage must take place

     in conformity with Annex A to that Order.

     .... From the investigation at the trial it has not appeared that

     these norms - insofar as relevant for the present case - have

     been violated. When asked at the trial, the suspect has stated

     that for personal reasons he does not wish to avail himself of

     the possibility offered to analyze the counter samples taken."

     The Court of Appeal further did not find it established that the

samples taken in the present case had been tampered with, although the

defence had demonstrated before the court that it was possible to gain

access to the samples without breaking the AID seals. The Court of

Appeal noted on this point that it was not possible to open each sealed

bag containing samples without breaking the seals, but only those bags

which had not been closed tightly enough. It further noted that the

samples at issue had not left the investigation circuit and that they

had arrived sealed at the laboratory where they had been analyzed

shortly after.

     Insofar as the applicant had relied on Article 8 of the

Convention, the Court of Appeal held:

     "The taking of samples and the subsequent actions in respect of

     these samples did not harm the applicant in any interest

     protected by Article 8 of the Convention. Insofar as the

     reference to the European Court of Human Rights

     25 February 1993 ...

     also implies a reliance on Article 6 of the Convention, this

     objection is also dismissed; the suspect has in particular not

     been compelled to provide self-incriminating evidence. There is

     further no legal rule to the effect that a counter sample must

     immediately be handed over on the spot to the suspect. According

     to the formal minutes, in all cases counter samples have been

     taken, have been packed and sealed in the same manner and have

     been sent to the laboratory. Also in this respect the suspect has

     thus not been harmed in his defence."

     The Court of Appeal also rejected the argument that the

administration of the substances at issue fell within the scope of

permissible exceptions. It noted that these exceptions concerned

therapeutical treatments subject to conditions, such as administration

by a veterinarian, a condition which was not met in the applicant's

case. It further rejected the applicant's argument that the clenbuterol

had been administered with permission of a veterinarian for medical

treatment of coughing animals, holding that it concerned store cattle

older than 14 weeks and that it clearly appeared from the evidence that

the applicant was aware that this constituted an offence.

     The applicant filed an appeal in cassation with the Supreme Court

(Hoge Raad). The Supreme Court rejected the appeal in cassation on

6 June 1995.

     The Supreme Court accepted the findings of the Court of Appeal

as regards the way in which the evidence was taken, in particular the

taking of samples and their subsequent handling. The Supreme Court

further accepted the Court of Appeal's findings under Article 8 of the

Convention. As the taking of the samples at issue and their subsequent

handling did not, as such, concern any interest protected by Article 8,

the Supreme Court held that the Court of Appeal did not have to examine

the argument that the rules governing the taking of samples fell short

of the requirements of this provision of the Convention.

     Referring to Article 101a of the Judicial Organisation Act (Wet

op de Rechterlijke Organisatie), the Supreme Court further rejected the

remainder of the applicant's appeal in cassation as not prompting a

determination of legal issues in the interest of legal unity and legal

development.

b.   Relevant domestic law

     The possession of cattle to which certain chemicals have been

administered is an offence according to the Decree on chemicals with

sympathico mimetic effects, a regulation referred to in Article 93 of

the Industrial Organisation Act (Wet op de Bedrijfsorganisatie) thus

falling within the scope of the Act on Economic Offences.

     Unless expressly ruled out in the Act on Economic Offences or the

statutory or secondary legislation referred to in Article 1 and

Article 1a of that Act, the provisions of the Code of Criminal

Procedure apply to the criminal investigation of economic offences

(Article 25 of the Code on Economic Offences).

     Article 17 para. 1 of the Act on Economic Offences reads:

     "With the investigation of economic offences are entrusted:

     1.    the civil servants referred to in Article 141 of the Code

     of Criminal Procedure;

     2.    the civil servants appointed by decision, published in the

     Netherlands Official Gazette, of the Minister of Justice in

     agreement with Our other Minister concerned;

     3.    the customs duty and excise tax civil servants."

     Article 141 of the Code of Criminal Procedure, in its wording at

the relevant time, reads:

     "With the investigation of criminal offences are entrusted:

     1.    the Public Prosecutors;

     2.    the District Court judges in cases, which do not fall

     within their cognizance;

     3.    the mayors in municipalities, where there is no

     municipal police commissioner;

     4.    the civil servants of the National Police Corps and

     the municipal police, with the exception of:

           a.    the paid civil servants in a lower rank than the

           one determined by Our Minister of Justice;

           b.    the civil servants, appointed to perform

           exclusively technical or administrative tasks;

     5.    the commissioners of the national police and the

     special civil servants of the national police;

     6.    for the cases to be determined by Our Ministers of

     Justice and of War: the commissioned and non-commissioned

     officers of the Royal Military Constabulary and the other

     military of that arm as designated by Our afore-mentioned

     Ministers;

     7.    the civil servants of the National Police Corps and

     the municipal police, designated by Our Minister of

     Justice,  who have been appointed within the regular

     framework and classification of ranks to perform

     exclusively technical or administrative tasks."

     Article 12 of the Constitution provides:

     "1.   Entering a home against the will of the occupant is only

     allowed in cases prescribed by law, by those persons authorised

     thereto by law.

     2.    Apart from exceptions prescribed by law, prior

     identification and information as to the purpose of entering are

     required before entering in accordance with the previous

     paragraph. The occupant shall be provided with a written report

     on the entry."

     Article 12 para. 1 of the Constitution implies that an occupant

must clearly state that he or she objects against an entry by

investigation officials for investigation purposes (Hoge Raad,

10 april 1979, Nederlandse Jurisprudentie 1979, nr. 483; and Hoge Raad,

19 februari 1985, Nederlandse Jurisprudentie 1985, nr. 691).

     Where an occupant has no objections against an entry of his or

her home by investigating officials for investigation purposes no

written warrant is required.

     Pursuant to Article 20 of the Act on Economic Offences,

investigating officials have access to any place, insofar as this is

reasonably required for the fulfilment of their duties. According to

paragraph 2 of this provision, investigating officers shall only enter

homes against the will of the occupant in cases of investigation of an

economic offence and accompanied by a police commissioner or the local

Mayor, or on the basis of a written order issued by the prosecution

department.

     According to Article 20 para. 3 of the Act on Economic Offences,

formal minutes (proces-verbaal) of an entry and investigation of

premises against the will of the occupant shall be made within

48 hours, which shall be communicated to the public prosecutor.

     Under Article 21 of the Act on Economic Offences, investigating

officials are competent to take samples of goods present on places, to

which they have access under the terms of the Act on Economic Offences.

If thereto requested, the holder of such goods is obliged to provide

them with the necessary co-operation.

     Article 28 para. 1 of the Act on Economic Offences provides for

interim measures to be taken by the public prosecutor in cases where

serious objections (ernstige bezwaren) against the accused have been

raised and where the interests protected by the allegedly violated

provision require immediate action.

     An interim measure may consist of an order to refrain from

certain acts (Article 28 para. 1.a) and of an order to ensure that

certain specified goods, which are liable for seizure, are stored and

kept at a specified place (Article 28 para. 1.b).

     According to Article 99 of the Judicial Organisation Act an

appeal in cassation is limited to points of law and procedural

conformity.

     Article 101a of the Judicial Organisation Act reads:

     "If the Supreme Court considers that a complaint submitted cannot

     lead to cassation and does not prompt a determination of legal

     issues in the interest of legal unity and legal development, it

     can limit itself to this finding when giving the reasons of its

     decision on that point."

COMPLAINTS

1.   The applicant complains under Article 8 of the Convention that

the investigation methods used in his case including the officials'

entry and search activities and/or the rules on which these methods are

based are contrary to Article 8 of the Convention. He submits that he

could not express his consent or objection as he was absent when these

activities took place.

2.   The applicant further complains under Article 8 of the Convention

that the way in which the samples obtained by the AID were subsequently

handled was unlawful, in that this handling fell short of the

requirements of Article 8 para. 2, in particular in that it was not in

conformity with the EEC Council Directives 67/371 and 85/591, Article 4

of the EEC Council Directive 86/469 and the EEC Commission's decision

87/410, and in that no counter samples were left in the hands of the

applicant.

3.   The applicant complains under Article 6 of the Convention that

the Supreme Court rejected part of his appeal in cassation, including

an argument under Article 8 of the Convention, under Article 101a of

the Judicial Organisation Act without giving further reasons.

THE LAW

1.   The applicant complains that the investigation methods used in

his case and the rules on which these methods are based are contrary

to Article 8 (Art. 8) of the Convention.

     Article 8 (Art. 8) of the Convention reads as follows:

     "1.   Everyone has the right to respect for his private and

     family life, his home and his correspondence.

     2.    There shall be no interference by a public authority with

     the exercise of this right except such as is in accordance with

     the law and is necessary in a democratic society in the interests

     of national security, public safety or the economic well-being

     of the country, for the prevention of disorder or crime, for the

     protection of health or morals, or for the protection of the

     rights and freedoms of others."

     The Commission notes that this particular complaint, which

concerns the lawfulness of the respective entries and searches as such,

was not raised when the applicant introduced his application with the

Commission by letter dated 16 October 1995, but was raised for the

first time in the applicant's second letter to the Commission of

12 February 1996.

     The complaints under Article 8 of (Art. 8) the Convention the

applicant initially submitted to the Commission in his letter of 16

October 1995 all concerned the alleged lack of adequate safeguards in

respect of obtaining samples, the alleged lack of adequate safeguards

against tampering with sealed samples taken for investigation purposes

and the allegedly unjust rejection by the Dutch courts of arguments put

forward by the defence as regards the applicability or interpretation

of certain rules emanating from European Union institutions.

     The question therefore arises whether the complaint regarding the

compatibility with Article 8 (Art. 8) of the entries and searches in

the present case, as such, has been brought within the six months'

time-limit referred to in Article 26 (Art. 26) of the Convention.

     The Commission recalls that the question whether allegations

submitted after the introduction of an application comply with the six

months rule depends upon whether those allegations should be regarded

as legal submissions in support of the original complaints or as fresh

complaints (cf. No. 18660/91, Dec. 7.12.94, D.R. 79, p. 11).

     The Commission further notes that in the domestic proceedings the

applicant has not complained about the lawfulness of the entries and

searches, as such. Insofar as the applicant raised complaints under

Article 8 (Art. 8) of the Convention in the domestic proceedings, they

were all related to the working methods applied in obtaining samples

and their subsequent handling. The question therefore also arises

whether in this respect the applicant has duly exhausted domestic

remedies within the meaning of Article 26 (Art. 26) of the Convention

(cf. No. 15669/89, Dec. 28.6.93, D.R. 75, p. 39).

     However, the Commission does not find it necessary to determine

these issues as this complaint is in any event manifestly ill-founded

for the following reasons.

     The Commission accepts that the respective entries and searches

of the applicant's premises by the investigating authorities constitute

an interference with the applicant's rights under Article 8 para. 1

(Art. 8-1) of the Convention (cf. Eur. Court HR, Funke v. France

judgment of 25 February 1993, Series A no. 256-A, p. 22, para. 48; and

No. 15882/89, Dec. 29.3.93, D.R. 74, p. 48). The question thus arises

whether this interference can be regarded as justified under Article 8

para. 2 (Art. 8-2) of the Convention.

     The Commission recalls that the words "in accordance with the

law" in Article 8 para. 2 (Art. 8-2) refers essentially to domestic

law, which is primarily for the national authorities to apply and

interpret, but also subject to a limited jurisdiction of the Convention

institutions as to the manner in which this is done. The relevant

domestic rules must further be sufficiently accessible and precise (cf.

Eur. Court HR, Kruslin and Huvig v. France judgments of 24 April 1990,

Series A nos. 176-A and B, pp. 20, 23, paras. 27, 33 and pp. 52, 55,

paras. 26, 32 respectively; No. 17441/90, Dec. 4.9.92, D.R. 73, p. 201;

No. 21482/93, Dec. 27.6.94, D.R. 78, p. 119 and No. 21207/93,

Dec. 30.11.94, D.R. 79, p. 31).

     The Commission notes that, in the Netherlands, the entry of

private premises, against the will of the occupant, by investigating

officials for the investigation of economic or other offences is

subject to a number of clear conditions prescribed by statutory rules

setting out the scope and procedures for the exercise of these powers.

     The Commission does not find it established that these conditions

were not respected in the present case. The Commission, therefore,

accepts that the interference at issue was "in accordance with the law"

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

     The Commission further notes that the entries and searches at

issue occurred on the basis of suspicions of economic offences and,

therefore, can be reasonably be regarded as necessary in a democratic

society for the legitimate aim of prevention of crime or protection of

health mentioned in paragraph 2 of Article 8 (Art. 8-2).

     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.

2.   The applicant further complains that the way in which the samples

were taken and subsequently handled violates his rights under Article 8

(Art. 8) of the Convention.

     The Commission notes that this complaint does not, as such,

concern the lawfulness of the respective entries and searches carried

out in the present case. It is a complaint that the methods applied for

obtaining the samples and the manner in which they were subsequently

handled were not in accordance with a procedure containing sufficient

statutory guarantees against tampering as can be inferred from certain

international regulations.

     The Commission considers that questions relating to the

admissibility, reliability and credibility of evidence in criminal

proceedings are matters to be considered under Article 6 (Art. 6) of

the Convention as relating to the fairness of criminal proceedings (cf.

Eur. Court HR, Delta v. France judgment of 19 December 1990, Series A

no. 191). These are no matters which fall within the scope of Article 8

(Art. 8) of the Convention, unless the way in which evidence has been

obtained affects private and family life, home or correspondence within

the meaning of Article 8 (Art. 8) of the Convention. This complaint

was, however, found to be manifestly ill-founded (see under 1.).

     The Commission does not find that the way in which the samples

taken in the present case or the way in which they were subsequently

handled constituted an interference with the applicant's rights

guaranteed by Article 8 (Art. 8) of the Convention.

     The question whether or not the Dutch courts' findings in the

present case as regards the applicability of certain national or

international rules and the conformity of the facts at issue with these

rules are correct is not a matter which the Commission can review under

the terms of Article 19 (Art. 19) of the Convention.

     It follows that this complaint is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3.   The applicant complains under Article 6 (Art. 6) of the

Convention that the Supreme Court rejected part of his appeal in

cassation under Article 101a of the Judicial Organisation Act without

giving further reasons.

     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...."

     The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention obliges the courts to give reasons for their judgments, but

cannot be understood as requiring a detailed answer to every argument

(cf. Eur. Court HR, Ruiz Torija v. Spain judgment of 9 December 1994,

Series A no. 303-A, p. 12, para. 29; and Hiro Balani v. Spain judgment

of 9 December 1994, Series A no. 303-B, p. 29, para. 27).

     The Commission further recalls that when a State provides for an

appeal to a Supreme Court, it may prescribe the conditions and

procedure (cf. No. 12972/87, Dec. 9.11.87, D.R. 54, p. 207) and that

Article 6 (Art. 6) of the Convention does not require that a decision

whereby an appeal tribunal, basing itself on a specific legal

provision, rejects an appeal as having no chance of success be

accompanied by detailed reasons (cf. No. 8769/79, Dec. 16.7.81, D.R.

25, p. 240).

     The Commission notes that the Supreme Court, referring to

Article 101a of the Judicial Organisation Act authorising this

procedure, rejected part of the applicant's complaints in cassation,

which is limited to points of law, as not prompting a determination of

legal issues in the interest of legal unity and legal development. The

Commission has previously found that this procedure cannot be regarded

as contrary to the requirements of Article 6 para. 1 (Art. 6-1) of the

Convention (cf. No. 30059/96, Dec. 26.2.97, unpublished). The

Commission finds no reason to reach a different finding in the present

case.

     Insofar as the applicant can be understood as complaining under

Article 6 (Art. 6) of the Convention about the way in which the

evidence in his case was taken, the Commission recalls that it may

examine how evidence has been adduced, but not how it has been assessed

by the court, unless there has been gross unfairness or arbitrariness

(cf. No. 22909/93, Dec. 6.9.95, D.R. 82, p. 25).

     The Commission notes that in the present case, the Court of

Appeal explicitly considered the submissions by the defence as regards

the possibilities to tamper with the sealed samples and the question

whether or not these samples should be considered as unlawfully

obtained evidence. The Court of Appeal did not accept the arguments put

forward by the defence on these points and found that it had not been

established that the samples taken in the present case had in fact been

tampered with.

     The Commission cannot find that the conclusions of the Court of

Appeal on this particular point can be regarded as grossly unfair or

arbitrary.

     Consequently, also noting that the applicant has been convicted

following adversarial proceedings in which he has been given ample

opportunity to state his case and to submit whatever he found relevant,

the Commission cannot find that the proceedings at issue fell short of

the requirements of Article 6 (Art. 6) of the Convention as to the

fairness of criminal proceedings.

     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, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

   M.-T. SCHOEPFER                              G.H. THUNE

      Secretary                                  President

to the Second Chamber                      of the Second Chamber

 

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