AS TO THE ADMISSIBILITY OF

Application No. 37340/97

by J.W.V.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting in private on 21 October 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, 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 13 March 1997 by J.W.V. against the Netherlands and registered on 11 August 1997 under file No. 37340/97;

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 1971, and is currently serving a prison sentence in the Netherlands. In the proceedings before the Commission, the applicant was initially represented by Mr C.J. van Bavel and subsequently by Mr P.H. Doedens , both lawyers practising in Utrecht.

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

At some unspecified point in time, the applicant was summoned to appear before the Regional Court ( Arrondissementsrechtbank ) of Zutphen on charges of participation in the rape and subsequent killing of a woman on or about 9 January 1994. In the course of its enquiry the police had taken saliva, hair, pubic hair, blood and buccal mucus samples of the applicant and other suspects as well as of witnesses and members of the victim's family.

Following adversarial proceedings in the course of which hearings were held on 26 October and on 13, 14 and 23 December 1994, the Regional Court ( Arrondissementsrechtbank ) of Zutphen , by judgment of 6 January 1995, convicted the applicant of participation in homicide and of participation in attempted rape and sentenced him to twelve years' imprisonment with deduction of the time spent in pre-trial detention. Both the applicant and the prosecution filed an appeal with the Court of Appeal ( Gerechtshof ) of Arnhem .

On 31 May 1995, the proceedings before the Court of Appeal commenced. In the course of the hearings held on 26, 27 and 28 June 1995 in the applicant's case, the Court of Appeal took evidence from several witnesses including the wife of a co-accused, acquaintances of the applicant and other accused, persons who had been at or near the scene of the crime at the relevant time including W.B. and G.S. who had been with the applicant at the relevant time. One of them retracted an incriminating statement made earlier in the proceedings whereas the other stated that he had eye-witnessed the events at issue.

Evidence was also taken from three police officers involved in the questioning of the applicant and/or a co-accused, the technical co- ordinator of the police enquiry , forensic experts involved in the investigation of the case and the applicant himself. The defence was enabled to put questions to these persons, all of whom were, after having given evidence, formally excused by the Court of Appeal with the consent of the defence .

In the course of the hearing held on 27 June 1995, the defence submitted documents relating to the questioning under hypnosis of E.S. and A.D.L., and a statement by another witness. The defence informed the court that, at present, there was no need to hear these persons before the Court of Appeal. On 28 June 1995, the Court of Appeal stated that it did not find it necessary to hear E.S. and A.D.L.

On 29 June 1995, the Court of Appeal heard the parties' pleadings.

In its interim judgment of 13 July 1995, the Court of Appeal held that the investigation in the applicant's case was incomplete and ordered a further investigation of the clothes worn by the victim, the hairs found, the sperm found and a knife found. It further ordered the taking of further evidence from one forensic expert already heard previously before the Court of Appeal on 27 June 1995, one further forensic expert and two further witnesses.

On 7 September 1995, the Court of Appeal took evidence from the two forensic experts and the other two witnesses. The Court of Appeal further decided that, as the additional investigation ordered in its interim judgment of 13 July 1995 was incomplete as a result of a misunderstanding, a further investigation was required. In addition to this it ordered that it should be examined whether it was possible to carry out a DNA test on the hair recently found on a sweater.

On 19 September 1995, the Court of Appeal heard the parties' final pleadings. Amongst other things, the defence argued:

- that on the basis of the evidence available, it was very likely, if not established, that another person than the applicant had had sexual intercourse with the victim;

- that the hairs found also indicated one or possibly more other perpetrators;

- that not a single trace (footsteps, threads, hairs, fingerprints or other) from the applicant had been found in or near the house where the victim was found;

- with reference to the statements of, inter alia , E.S. and A.D.L., that the applicant has an alibi;

- that the statements by W.B. and G.S. about what happened in fact in the house are not only inconsistent but also factually and clearly incorrect; and

- that the technical investigation has been careless and limited.

The defence requested the Court of Appeal to order the taking of further oral and forensic evidence, including the comparison of the DNA found with the database of the Forensic Laboratory of the Ministry of Justice and to hear before the court A.D.L., E.S. and the latter's employer in connection with the applicant's alibi.

In its judgment of 3 October 1995, the Court of Appeal quashed the Regional Court's judgment of 6 January 1995, convicted the applicant of participation in homicide and participation in rape and sentenced him to ten years' imprisonment with deduction of the time spent in pre-trial detention.

As to the grounds for the request by the defence for an adjournment of the proceedings for a further investigation of the facts of the case, the Court of Appeal held that, given the photographs in the case-file and the statement made by the expert K. before the court, it did not find it necessary to view a video recording of the site at issue, that it was not plausible that those parts of the records of the technical investigation which had not been added to the case-file contained information which was not mentioned in documents which did form a part of the case-file and that it was not established that in the technical investigation acts had been omitted, which could have shed new light on the case.

The Court of Appeal further did not find it necessary to take further oral evidence holding, as regards the persons proposed by the defence , that one expert would only be able to confirm the findings of the other experts, that it was unnecessary to hear another expert on uncertainties in respect of a certain report as these points had been clarified by additional information submitted by the prosecution and that it was sufficiently informed about those subjects in respect of which other witnesses proposed by the defence - including A.D.L., E.S. and the latter's employer - could give evidence.

The Court of Appeal further rejected the argument by the defence that the incriminating statements by the three other persons involved in the events at issue could not be admitted in evidence in that they had not been made freely and were unreliable. On this point, the Court of Appeal held, noting what the police officers who had taken these statements had stated at the trial about the manner in which the questionings were conducted, that it could not be said that these statements had not been made freely. The Court of Appeal further pointed out that the applicant and the three others directly involved in the events at issue had made statements which supported each other both as regards the main lines and distinctive details, whereas this mutual congruity - according to the testimony given to the court by the officers who had questioned them - could not be explained otherwise than that these statements were based on the authentic knowledge of the persons who had made these statements.

The Court of Appeal based the applicant's conviction on, inter alia , the following means of evidence:

- the formal police records on the finding of the victim's body;

- a forensic report on the cause of death of the victim;

- the incriminating statements of the eye-witnesses W.B. and G.S. made to the police and/or the investigating judge ( rechter-commissaris ) in which they stated that they had seen that the applicant had been involved in the commission of the facts with which he had been charged;

- an incriminating statement to the police by the co-accused H.D.B. declaring that the applicant had been involved in the commission of the facts with which he had been charged; and

- a statement to the police by the applicant confirming that he was at the scene of the crime when the facts at issue occurred.

The applicant's subsequent appeal in cassation was rejected by the Supreme Court ( Hoge Raad ) on 16 September 1996. Insofar as the applicant complained that the Court of Appeal had unjustly rejected his request for a comparison of the DNA found at the scene of the crime with the database of the Forensic Laboratory of the Ministry of Justice and had incorrectly rejected his request to hear the witnesses A.D.L., E.S. and the latter's employer in connection with the applicant's alleged alibi, the Supreme Court held that these complaints could not lead to cassation and that, pursuant to Article 101a of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie ), this finding did not require any further reasoning as the complaints did not prompt a determination of legal issues in the interest of legal unity or legal development.

Article 101a of the Judicial Organisation Act provides:

"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 for its decision on that point."

The applicant's request for a revision ( herziening ) was declared inadmissible by the Supreme Court on 14 October 1997.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that he did not have a fair trial in the criminal proceedings against him in that the Court of Appeal rejected his request to hear A.D.L., E.S. and the latter's employer who could have confirmed his alibi and in that the Court of Appeal did not find a comparative DNA test necessary which could have traced the real perpetrator.

2. The applicant further complains that the Supreme Court's rejection of his appeal in cassation under Article 101a of the Judicial Organisation Act is contrary to his right to a fair trial within the meaning of Article 6 of the Convention.

THE LAW

1. The applicant complains under Article 6 of the Convention that he did not have a fair trial in the criminal proceedings against him in that the Court of Appeal rejected his request to hear A.D.L., E.S. and the latter's employer who could have confirmed his alibi, in that the Court of Appeal did not find a comparative DNA test necessary which could have traced the real perpetrator and in that the Supreme Court rejected these complaints in the proceedings in cassation under Article 101a of the Judicial Organisation Act without giving any further reasons.

Article 6 of the Convention, insofar as relevant, provides as follows:

"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:

...

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 of Article 6 para. 3 of the Convention are to be seen as particular aspects of the general concept of a fair trial guaranteed by paragraph 1 of this provision (cf. Eur. Court HR, Daud v. Portugal judgment of 21 April 1998, to be published in Reports of Judgments and Decisions 1998, para. 33), the Commission will examine the complaint under both paragraphs taken together.

The Commission recalls that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The task of the Convention organs is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair. As a general rule Article 6 paras. 1 and 3 (d) of the Convention require that a defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (cf. Eur. Court HR, Van Mechelen and Others v. the Netherlands judgment of 23 April 1997, Reports of Judgments and Decisions 1997-III, p. 711, paras. 50-51).

The Commission finally recalls that Article 6 of the Convention does not guarantee an unlimited right for an accused to have witnesses called. As a general rule, it is for the national courts to assess the relevance of the evidence which an accused seeks to adduce and in particular to assess whether it is appropriate to call witnesses in the autonomous sense given to that term in the Convention system (cf. No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77; and No. 29420/95, Dec. 13.1.97, D.R. 88, p. 148).

The Commission notes that the Court of Appeal quashed the Regional Court's judgment of 6 January 1995 and, following adversarial proceedings in which extensive evidence was taken before the Court of Appeal, pronounced the applicant's conviction.

The Commission observes that the Court of Appeal based the applicant's conviction, inter alia , on incriminating statements by three eye-witnesses to the events at issue in the proceedings against the applicant and a statement by the applicant himself confirming that he was present at the time these facts occurred. The Court of Appeal had previously found that these statements supported each other both as regards the main lines and distinctive details, whereas this mutual congruity - according to the testimony given to the court by the officers who had questioned them - could not be explained otherwise than that these statements were based on the authentic knowledge of the persons who had made these statements.

Insofar as the statements given in the course of the pre-trial investigation did not correspond to the evidence given before the Court of Appeal, the Commission recalls that, where a court is confronted with a contradiction between an earlier statement and subsequent evidence at the trial, it is the task of this court to consider the credibility of the declaration of the witness involved (cf. No. 8414/78, Dec. 4.7.79, D.R. 17, p. 23). The findings of a trial court in this respect cannot, as such, be reviewed by the Commission under the terms of Article 19 of the Convention (cf. No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).

Given that, in the proceedings before the Court of Appeal, W.B. and G.S. were heard before the court and that the defence was provided with an adequate opportunity to put questions to these persons and that it does not appear that the defence ever sought to hear the third person, the co-accused H.D.B., before the Court of Appeal, the Commission cannot find that, as regards the evidence given by these persons, the applicant's defence rights under Article 6 of the Convention were not or were insufficiently respected.

Furthermore, given the Court of Appeal's reasons for refusing the request made by the defence to take further oral and other evidence, the Commission does not find this decision to be unreasonable or arbitrary and considers that it did not deprive the applicant of a fair hearing of his case.

It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

2. The applicant further complains that the Supreme Court rejected two of his complaints in cassation under Article 101a of the Judicial Organisation Act without giving any further reasons.

The Commission recalls that Article 6 para. 1 of the Convention obliges 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),

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 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; and No. 26561/95, Dec. 25.2.97, D.R. 88, p. 72).

The Commission notes that the Supreme Court, referring to Article 101a of the Judicial Organisation Act authorising this procedure, rejected two of the applicant's complaints in cassation as not prompting a determination of legal issues in the interest of legal unity or legal development. The Commission cannot find this procedure, as such, to be contrary to the requirements of Article 6 of the Convention as regards fairness of the proceedings or that the fact that the Supreme Court rejected the applicant's complaints at issue under this provision infringed the applicant's right to a fair trial as guaranteed by Article 6 of the Convention.

It follows that the application must also be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

   M.-T. SCHOEPFER                                                J.-C. GEUS

      Secretary                                                                 President

to the Second Chamber                                     of the Second Chamber