THE FACTS

Whereas the facts of the case as presented by the Applicant may be

summarised as follows:

The Applicant is a German citizen, born in 1901 and at present living

in The Hague.

He has lodged two previous Applications with the Commission which were

declared inadmissible on 11th April, 1961 (Application No.886/50) and

on 2nd October, 1964 (Application No. 1795/63). The facts relating to

the present Application, as they have been presented by the Applicant,

may be summarised as follows:

1. As the Applicant considered that the North Holland Publishing

Company (which was the editor of one of the Applicant's books) had

defrauded him and told lies in the course of certain court proceedings,

he sent a circular letter to some members of the Dutch Academy of

Sciences, proposing that the Academy should break off relations with

the publishing company concerned.

The editor complained to the Public Prosecutor of defamation and it

seems that court proceedings were instituted against the Applicant.

The Applicant was apparently convicted and sentenced to a fine by the

District Court (Arrondissements-Rechtbank) in The Hague on .. October,

1963, and his conviction seems to have been upheld on appeal by the

Court of Appeal (Gerechtshof) in The Hague on .. March, 1964, and by

the Supreme Court (Hoge Raad) on .. June, 1964.

The Applicant also asked for a retrial (herziening) but this

application was rejected by the Supreme Court on .. September, 1964.

The Applicant states that in the proceedings against him he had asked

the Public Prosecutor and the Attorney-General to call six witnesses

in order to show that his circular letter to the Academy had been

justified by 'public interest'. By letters of .. and .. February, 1964,

the Attorney-General had rejected this request.

The Applicant submitted a similar petition to the President of the

Court (apparently the Court of Appeal) who rejected it on .. February,

1964. He repeated his request orally during the trial, but without

success.

He states that he also invoked this point in his appeal to the Supreme

Court and that the Supreme Court rejected the appeal on the ground that

it did not appear from the case-file that the Applicant had in fact

asked leave to call the witnesses concerned. According to the

Applicant, this was due to the fact that the Attorney-General had

removed certain documents from the case-file before submitting it to

the Supreme Court.

He alleges a violation of Article 6, paragraph (3) (d), of the

Convention.

In regard to this complaint, the Applicant submitted inter alia the

following documents:

(a) A letter of .. February, 1964, from the Attorney-General at the

Court of Appeal; in this letter reference was made to the Applicant's

request for a hearing of six witnesses and it was pointed out that the

Court of Appeal could hardly make any such new investigation in the

case. The Attorney-General proposed, therefore, that these witnesses

should be heard by the investigating judge and asked the Applicant

whether he agreed to this.

(b) The Applicant's reply to the Attorney-General, dated .. February,

1964. In this reply, the Applicant stated that he did not agree to the

Attorney-General's proposal, since he found it necessary to hear the

witnesses under oath and in public.

(c) The Attorney-General's letter of .. February, 1964, to the

Applicant. By this letter, the Attorney-General informed the Applicant

that he was unable to grant the Applicant's request for a hearing of

the six witnesses before the Court of Appeal.

(d) The Applicant's letter of .. February, 1964, by which he asked the

Court of Appeal to call the six witnesses. He complained of the refusal

of the Attorney-General and stated that a hearing before the

investigating judge as proposed by the Attorney-General did not serve

any useful purpose.

(e) The reply of the Court of Appeal to the Applicant's letter under

(d). The Registrar of the Court informed the Applicant that he could

apply for a hearing of the six witnesses in connection with the oral

pleadings before the Court and that Court would then decide whether

there were reasons to hear the witnesses and adjourn the case.

(f) A press cutting of .. March, 1964, regarding the hearing of the

Applicant's case by the Court of Appeal. In this press cutting, it was

stated that the Applicant had asked the Court to call six witnesses

(three professors, one lawyer, the publisher concerned and one Public

Prosecutor) in order to prove that the statements made by him had been

justified by the public interest. The Court of Appeal had declared that

it did not consider it necessary to hear these witnesses and the

President of the Court had also pointed out that the public interest

could not justify the Applicant's acquittal, if the expressions used

had been unnecessarily insulting.

(g) The Applicant's letter of .. July, 1964, to the Supreme Court. In

this letter, the Applicant complained of the Supreme Court's decision

of .. June, 1964. The Applicant referred to a statement by the Supreme

Court according to which it did not appear that the witnesses concerned

were included in 'the list of witnesses'. In the Applicant's opinion,

this was due to the fact that the Supreme Court's file had been

incomplete.

(h) The Supreme Court's decision of .. September, 1964, by which the

Applicant's application for new proceedings was rejected. Among other

reasons given for this decision, the Supreme Court pointed out that the

fact that certain witnesses had not been called did not in itself

justify new proceedings.

2. The Applicant states that, after having a dispute with the North

Holland Publishing Company in respect of the publication of a book, he

instituted civil proceedings against the company before the District

Court in Amsterdam. He states that his claim was rejected by the Court

on the ground that he "had relations to the (former) German Ambassador

here, Dr. Mühlenfeldt, and through him to Minister von Brentano, German

Minister of Foreign Affairs, and had made for the German Government two

reports on Dutch mentality in general and attitude towards Germany

especially".

The Applicant states that he then lodged a criminal charge with the

Public Prosecutor, invoking Article 14 of the Convention, but that he

was informed that the Public Prosecutor could not prosecute a court.

The same position was taken by the Attorney-General.

He then asked the Court of Appeal in Amsterdam to institute criminal

proceedings against the members of the District Court in respect of

perversion of justice and violation of Article 14 of the Convention.

On .. November, 1964, the Court of Appeal dismissed his petition and

indicated in its decision that, in so far as the Applicant alleged a

violation of Article 14 of the Convention, he could lodge an

application with the European 'Court' of Human Rights. He alleges that,

by reason of his German nationality, he has been subjected to

discrimination contrary to Article 14 of the Convention.

THE LAW

Whereas the Applicant's first complaint concerns the fact that in

certain defamation proceedings he was not allowed to call six

witnesses;

Whereas he submits that he wished to show, by the evidence to be given

by these witnesses, that certain defamatory remarks which he had made

had been justified by considerations of 'public interest';

Whereas the Applicant has submitted a number of documents relating to

this complaint; whereas it appears from these documents that the Court

of Appeal had reasonable grounds for rejection of the Applicant's

request for a hearing of the witnesses concerned; whereas, in

particular, the Court of Appeal seems to have considered that the

principle of 'public interest' could not be invoked as a ground of

justification, where unnecessarily insulting language had been used;

Whereas the Commission has consistently held that the provision 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 in the case

(see, for instance, Application No. 617/59, Yearbook III, pages 390 -

392);

Whereas the Commission is satisfied that in the present case there has

been no violation of the Applicant's 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 manifestly

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

of the Convention;

Whereas, in so far as the Applicant complains of discrimination in the

civil proceedings before the District Court, it is to be observed that,

under Article 25 (Art. 25) 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 has not shown that he appealed against the

decision by which his claim was rejected by the District Court;

whereas, therefore, he has not shown that he exhausted the remedies

available to him under Netherlands law; whereas, moreover, an

examination of the case as it has been submitted 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 condition 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.