THE FACTS

Whereas the facts as presented by the applicant may be summarised as

follows:

The applicant is a citizen of the United Kingdom, born in 1940, and

resident at Dagenham, Essex. When he submitted his application he was

detained in prison at 's-Gravenhage in The Netherlands.

From his statements and from documents submitted by the applicant it

appears that on .. June, 1967, he was arrested on the suspicion of

having attempted to change counterfeit money, knowing it to be false,

and remanded in custody. A provisional order for the applicant's

detention pending trial (Bevel tot Bewaring) was made on .. June 1967,

by the competent judge of the Rotterdam Regional Court

(Arrondissementsrechtbank) and on .. June 1967, the Third Chamber of

the said Regional Court issued an order for the applicant's continued

detention on remand (Bevel tot Gevangenhouding) during a period of

thirty days which, on .. August 1967, was extended for a further period

of thirty days.

The applicant was tried on .. September 1967, by the Rotterdam Regional

Court. On that day he was convicted for having passed off several false

100 Dollar bills knowing them to be false and sentenced to three years'

imprisonment.

On appeal (Hoger Beroep) by the applicant to the Court of Appeal

(Gerechtshof) at 's-Gravenhage this decision was set aside on ..

January 1968 on the grounds that it did not emerge from the minutes of

the proceedings before the District Court that the applicant, who was

unable to speak or understand the Court of Appeal itself passed

judgment on the applicant, finding him guilty of having passed off

counterfeit bills knowing them to be false and sentenced him to two

years' imprisonment.

The applicant now intended to lodge with the Supreme Court (Hoge Raad)

a plea of nullity (Beroep in Cassatie) against the Court of Appeal's

above decision. For that purpose he made an application to the Bar

Association for assistance in Criminal Matters at the Dutch Supreme

Court (Raad van Rechstbijstand in Strafzaken bij de Hoge Raad der

Nederlanden) requesting the assistance of a lawyer. As a result of this

application, Mr. M, a lawyer practising at 's-Gravenhage, was appointed

to represent the applicant during the appeal proceedings. On .. March

1968, Mr. M filed with the Supreme Court the grounds of appeal

challenging the Court of Appeal's decision of .. January 1968 in

principal, on the grounds that it had not been established that the

applicant had known the bills to be false.

The Supreme Court heard the applicant's plea on .. March 1968, in the

presence of the Attorney General (Advocaat-Generaal) acting on behalf

of the Procureur-General at the Supreme Court, but in the absence of

the applicant and his lawyer, who submitted written pleadings only. On

.. May, 1968, the Supreme Court rejected the plea as being ill-founded.

Subsequently, the applicant allegedly addressed himself to the Minister

of Justice, H.M. the Queen and other authorities, but without success.

The applicant now complains that he was wrongly convicted and sentenced

and that the Convention was violated by reason of the court proceedings

concerned.

He explains that he did not know the Dollar bills which he had tried

to change, to have been false and that certain statements to the

contrary made by witnesses in England were untrue and misleading. He

had asked for witnesses to be produced who would have given evidence

in his favour but not all of these witnesses had been called by the

Court.

He further complains that upon arrest he was taken to a police station

where, on three occasions, he was asked to strip naked in order to be

searched on and even inside his body. He immediately requested to see

a lawyer and the British Consul in Rotterdam but his request was

granted only seven days after he had been arrested. Subsequently he had

not been allowed to see his lawyer regularly.

Finally, he complains that the decisions in his case had not been taken

until two weeks after the trial and that the Supreme Court had dealt

with his plea of nullity in his absence.

He alleges violations of Article 6, paragraphs (2) and (3) (c) and (d),

and Article 8, paragraph (1) of the Convention. He also invokes

Articles 25, 26 and 27. He requests the Commission to clear him of his

conviction, to establish the true facts of his arrest and trials, and

to show that it was impossible to prove him guilty.

The Commission examined the application on 1 December 1969 and

considered that the practice in criminal proceedings before the Dutch

Supreme Court in most cases not to deliver oral pleadings but to refer

to the applicant's written pleadings and to hear the conclusions of the

Attorney General might raise questions similar to those raised by the

"Delcourt" Case against Belgium, which was pending before the European

Court of Human Rights. It therefore decided to adjourn the examination

of the application until the European Court of Human Rights had

pronounced judgment in the "Delcourt" Case. This took place on 17

January, 1970.

THE LAW

Whereas, in regard to the applicant's complaints concerning his

conviction and sentence, an examination of the case as it has been

submitted, including an examination made ex officio, does not disclose

any appearance of a violation of the rights and freedoms set forth in

the Convention and especially in the articles invoked by the applicant;

Whereas, in respect of the judicial decisions complained of, the

Commission has frequently stated that in accordance with Article 19

(Art. 19) of the Convention its only task is to ensure observance of

the obligations undertaken by the Parties in the Convention; whereas

in particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where the Commission considers that such errors might have

involved a possible violation of any of the rights and freedoms

limitatively listed in the Convention;

Whereas, in this respect, the Commission refers to its decisions Nos.

458/59 (X. v Belgium - Yearbook, Vol. III, p. 233) and 1140/61 (X. v.

Austria - Collection of Decisions, Vol. 8, p. 57); and whereas there

is no appearance of any such violation in the present case;

Whereas it follows that this part of the application is manifestly

ill-founded within the meaning of Article 27, paragraph (2)

(Art. 27-2), of the Convention.

Whereas, the applicant further complains that the Supreme Court dealt

with his plea of nullity in his absence but in the presence of the

Attorney General acting on behalf of the Procureur-General attached to

the Supreme Court; whereas the Commission considered this complaint

under Article 6, paragraph (1) (Art. 6-1), of the Convention which

provides that in the determination of any criminal charge everyone is

entitled to a fair hearing;

Whereas, the Commission first had regard to the judgment of the

European Court of Human Rights of 17 June, 1970 in the "Delcourt" Case;

Whereas, in that case, the applicant had made certain so-called "new

complaints" to the effect that, during the proceedings before the

Belgian Court of Cassation, he had not been able to reply to the

submissions of the Procureur General's department at the Court of

Cassation as he had not been informed of this submission before the

hearing and also did not have the right to the "last word" at this

respect that the fact that the Procureur General's department at the

Court of Cassation in Belgium expresses its opinion at the end of the

hearing, without having communicated it in advance to the parties, was

not inconsistent with Article 6, paragraph (1) (Art. 6-1), of the

Convention, since that provision did not require, even by implication,

that an accused person should have an independent official attached to

the highest court in Belgium as its assistant and advisor;

Whereas, the Commission next examined the situation in The Netherlands,

with regard to the role of the Procureur-Generaal attached to the

Supreme Court (Hoge Raad) and the procedure before that Court;

Whereas, with regard to the Procureur-Generaal at the Supreme Court,

the Commission observes that he is a member of the Public Prosecutor's

Department (Openbaar Ministerie) in accordance with Article 3 of the

Judicature Act (Wet ot de Rechterlijke Organisatie), 1827;

Whereas, under that provision, the Public Prosecutor's Department

consists of the Procureur-Generaal attached to the Supreme Court, the

Procureurs Generals attached to the Courts of Appeal and the Public

Prosecutors attached to the Courts of first instance;

Whereas, the Public Prosecutor's Department is not an independent body

since its members are bound by the orders given by the King through the

Minister of Justice (see Article 5 of the Judicature Act) and it

represents the executive in judicial proceedings;

Whereas, however, a special status is accorded to the Procureur-General

attached to the Supreme Court; whereas, his functions are described

generally in Article 52 of Ordinance No. I, Chapter I, 1838, which

states that the Procureur-Generaal at the Supreme Court ensures the

maintenance and execution of the laws and ordinances by the courts;

Whereas, in this respect alone can he give instructions to the

Procureur-General at the Courts of Appeal and the public prosecutors

attached to the other courts (see Article 53 of Ordinance No. I) whose

main task it is to prosecute criminal offenses and to supervise the

execution of criminal judgment; whereas the Procureur-Generaal at the

Supreme Court is charged with the prosecution of only such criminal

offenses which fall within the original jurisdiction of the Supreme

Court (Article 7 of the Code of Criminal Procedure)  eg offenses

committed by ministers, secretaries of State, high State officials and

members of Parliament in the exercise of their functions (see Article

92 of the Judicature Act);

Whereas otherwise his only function is to ensure the maintenance and

execution of the laws and ordinances of the courts;

Whereas, he exercises his functions independently without any

interference by members of the Government;

Whereas, his personal task is to assist the Supreme Court in reaching

its decisions on pleas of nullity in cassation proceedings before that

Court; whereas he accomplishes that task by submitting to the Court,

as an impartial adviser, such conclusions on the case as he may

consider necessary in the interest of maintaining and executing the

laws and ordinances; whereas, in these conclusions the

Procureur-Generaal will also draw the Court's attention to such grounds

of cassation which have not otherwise been put before it; whereas it

is also Procureur-General himself nor the Attorney General acting on

his behalf is present during the Supreme Court's deliberations in

Chambers;

Whereas, with regard to the procedure before the Supreme Court, the

Commission notes that, apart from the limited cases in which the Court

has original jurisdiction, its main task is to decide on pleas of

nullity in cassation proceedings; whereas the procedure concerning such

proceedings is set out in Articles 432 et seq. of the Code of Criminal

Procedure as follows:

1. If a convicted person wishes to lodge a plea of nullity he must

deposit, within eight days after the challenged decision has been

pronounced, a declaration with the clerk of the court that has taken

that decision, to the effect that he wishes to make such plea to the

Supreme Court (Article 432);

2. The papers are sent to the Clerk of the Supreme Court, and the

applicant may submit, through his lawyer, written pleadings containing

his grounds of nullity (Article 433);

3. Eight days after receipt of the written pleadings the Clerk of the

Supreme Court hands them to the Procureur-Generaal who transmits them

to the Court and proposes at the same time, a date for the hearing; the

hearing is then fixed by the presiding judge who also appoints a

rapporteur (Article 436);

4. The Procureur-Generaal informs the appellant at least eight days in

advance of the date of the hearing (Article 437, para (1));

5. The hearing starts with a statement by the judge rapporteur

concerning the facts of the case and the grounds of nullity as

submitted by the appellant (Article 438);

6. Thereafter the appellant's counsel is given an opportunity orally

to plead the case and may at that stage submit further grounds of

nullity (Article 439);

7. Subsequently, the Procureur-Generaal submits his conclusions to the

Supreme Court either at once or at a later session; when no lawyer

appears on behalf of the appellant, the Procureur-Generaal submits his

conclusions immediately after the judge rapporteur has reported the

case; thereafter the presiding judge orally fixes the date on which the

Supreme Court will pronounce its decision (Article 440);

8. The judgment is read by the presiding judge or one of the associate

judges at a public session of the Supreme Court (Article 443);

9. The Procureur-Generaal gives notice to the appellant of the Supreme

Court's decision (Article 444, para. (2)).

Whereas, in the present case, the applicant was informed, in accordance

with the provisions of Article 437 of the Code of Criminal Procedure,

of the date of the hearing before the Supreme Court; whereas he was

further informed that, although he himself would not be allowed to

address the Court, he could instruct counsel to plead his case and

that, if necessary, he could apply for legal aid and the appointment

of counsel; whereas, in fact, counsel was appointed in the applicant's

case and, on .. March 1968, submitted to the Supreme Court on the

grounds of nullity in writing; whereas, according to the practice

normally observed by lawyers acting on behalf of appellants to the

Supreme Court, counsel did not personally appear at the hearing of ..

March 1968 when the Attorney General, acting on behalf of the

Procureur-General, submitted, after the report of the judge rapporteur,

his conclusions the effect that the plea of nullity should be

dismissed; whereas, on .. May, 1968, the Supreme Court dismissed the

plea of nullity and the applicant was so informed in accordance with

Article 444 of the Code of Criminal Procedure;

Whereas, in these circumstances and having regard to the principles

developed by the European Court of Human Rights in its judgment on the

"Delcourt" Case, the Commission finds that there is not, in the

proceedings concerned, any appearance of a violation of the applicant's

right to a fair hearing within the meaning of Article 6, paragraph (1)

(Art. 6-1), of the Convention; whereas it follows that this part of the

application is also manifestly ill-founded and must be rejected in

accordance with Article 27, paragraph (2) (Art. 27-2), of the

Convention;

Whereas, the applicant further complains that the Court of Appeal at

The Hague failed to hear all the witnesses who would have given

evidence in his favour; whereas the Commission has consistently held

that the provisions of Article 6, paragraph 3 (d) (Art. 6-3-d), of the

Convention does not give an accused person a general right to call

witnesses on his behalf; whereas, in particular, a court is justified

in refusing to summon witnesses whose statements could not be of any

relevance to the case (see, for instance, Applications Nos. 617/50,

Yearbook, Vol. III, pages 390-392, and 2383/64, Collection of

Decisions, Vol. 23, pages 26, 30);

Whereas, in the present case, the applicant failed to submit any

indication as to the names of witnesses he intended to call or as to

the nature of the evidence which these witnesses were expected to give;

whereas, in these circumstances, the Commission finds that, even

assuming the applicant has exhausted the domestic remedies in this

respect, there has been no appearance of a violation of the right "to

obtain the attendance and examination of witnesses on his behalf under

the same conditions as witnesses against him", as guaranteed by Article

6, paragraph (3) (d) (Art. 6-3-d), of the Convention;

Whereas, it follows that this part of the application is equally

manifestly ill-founded within the meaning of Article 27, paragraph (2)

(Art. 27-2), of the Convention;

Whereas, finally, in regard to the applicant's complaints that at the

police station he was required to strip naked and be searched, it is

to be observed that, under Article 26 (Art. 26) of the Convention, the

Commission may only deal with a matter after all domestic remedies have

been exhausted according to the generally recognised rules of

international law; and whereas, the applicant failed to show that he

raised this complaint before any Dutch court or authority; whereas,

therefore, he has not exhausted the remedies available to him under

Dutch law;

Whereas, moreover, an examination of the case as it has been submitted,

including an examination made ex officio, 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 exhausting the domestic remedies at his disposal; whereas,

therefore, the conditions as to the exhaustion of domestic remedies

laid down in Articles 26 and 27, paragraph (3) (Art. 26, 27-3), of the

Convention has not been complied with by the applicant;

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE