Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30941/96

by Raihmaan Safarilam MOENIRALAM

against the United Kingdom

The European Commission of Human Rights (Second Chamber) sitting

in private on 21 May 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

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 11 December 1995

by Raihmaan Safarilam MOENIRALAM against the Netherlands and registered

on 2 April 1996 under file No. 30941/96;

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 1957, and is currently

serving a prison sentence in the Netherlands. He is represented by

Mr. Th.A. De Roos, a lawyer practising in Amsterdam.

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

summarised as follows.

On 7 September 1993, the applicant was arrested and detained on

suspicion of drug offences.

Following two hearings held on 16 and 23 December 1993 and on

31 January 1994, the Regional Court (Arrondissementsrechtbank) of The

Hague, on 14 February 1994, convicted the applicant of drug offences

and of participation in an organisation whose aim is the commission of

offences. The applicant was sentenced to ten years' imprisonment.

In reply to arguments submitted by the defence in connection with

the allegation that the applicant had been forced to find a drug runner

which had not been made sufficiently apparent in the proceedings, the

Regional Court held, inter alia, that no irregularities or

insufficiencies in the investigation or the thereto related orders had

appeared and that the necessity had not been established to hear as

witnesses the police officers V. and D.V., before whom the applicant

had made a statement on 9 September 1993.

The Court noted in this respect that in the course of the trial

the applicant had in fact been enabled to explain the underlying

reasons for the alleged constraint and, at that occasion, had not

stated anything about having been threatened by Colombians. The

applicant had stated that three persons from Amsterdam, W., D. and A.,

not being Colombians, approached him in order to find drug runners. He

acceded to their request for fear of repercussions.

The Regional Court based its conviction on, inter alia, the

applicant's confessing statements before the Regional Court, statements

to the police by a number of co-accused, a forensic report and police

reports.

The applicant filed an appeal and requested the prosecution to

summon 15 persons to give evidence before the Court of Appeal. The

prosecution agreed to summon the police officers V. and D.V. The

prosecution informed the defence that the prosecution would not summon

the other persons whose attendance was requested by the defence, as the

case concerned a confessing accused and the only issue was the question

whether the applicant had been threatened and, therefore, forced to

organise or carry out drug transports.

Following the applicant's appeal, a hearing was held on

20 June 1994 before the Court of Appeal (Gerechtshof) of The Hague. In

the course of that hearing the Court of Appeal heard the applicant. It

further heard the police officer V.

The defence further requested the Court of Appeal to hear four

witnesses, who could give evidence about the hierarchical structure of

the organisation, nine witnesses, who could give evidence about the

threats to which the applicant had allegedly been exposed, one expert-

witness Mr. P.H., who could provide information about the applicant's

personality. The defence explained that, in particular, the brothers

R.V. and P.V. had been present when the Colombians expressed threats

in January 1993 and that the other witnesses on this point could

provide information about more recent threats.

After having deliberated, the Court of Appeal decided to hear the

police officer D.V. and the expert-witness P.H., and to order a hearing

before the investigating judge (rechter-commissaris) of the brothers

R.V. and P.V. on the alleged threats by Colombians from Amsterdam in

January 1993.

The Court of Appeal rejected the request of the defence to hear

the other witnesses proposed, holding that the four witnesses proposed

in order to shed light on the hierarchical structure appeared to have

only been marginally involved ("randfiguren") and did not belong to the

core of the organisation, that one witness had already stated before

the Regional Court that, in view of his absence at the applicant's

hearing before the police on 9 September 1993, he could not make any

statement about that hearing, that another witness, according to the

defence, was not present when the alleged threats were made in

January 1993, that another witness, according to the defence, could

only provide hearsay evidence and that two other witnesses could,

according to the defence, only make statements about recent threats and

not about threats made in January 1993.

The Court of Appeal resumed the proceedings on 5 September 1994.

In view of its changed composition, the Court of Appeal fully restarted

its examination. It heard the applicant, who admitted, inter alia,

having imported cocaine and having recruited R.M. and E.R. as drug

runners. The Court of Appeal further heard the police officers V. and

D.V., and the expert-witness P.H.

As regards the witnesses R.V. and P.V., the President of the

Court of Appeal declared that, although duly summoned, the

investigating judge had been unable to hear them as they had left the

Netherlands and no new address was known.

The defence replied that they had left for the Netherlands

Antilles and that the new address of one of them was known to the

defence. The defence insisted hearing them - if need be in the

Netherlands Antilles - as they were present when the applicant was

threatened by W. The President of the Court of Appeal replied on the

latter point that W. was no Colombian and that the applicant had stated

on 20 June 1994 that he had been threatened by Colombians. The

prosecution objected to an adjournment to allow the hearing of R.V. and

P.V., holding that the occurrence of threats in the drug milieu is a

fact of common knowledge and that any statements by R.V. and P.V. would

not add anything relevant to the case.

After having deliberated, the Court of Appeal rejected the

request of the defence to hear R.V. and P.V. either before the Court

or in the Netherlands Antilles, holding that the necessity to hear them

had not appeared and that it could not be held that the applicant would

be harmed in his defence by not hearing these persons as witnesses. The

Court considered in this respect that it could already be concluded

from the evidence given by V. and D.V. that threats had been made, that

the occurrence of threats in the drug milieu are not exceptional and

that it was equally not remarkable that the applicant, as having played

an important role in that milieu, had made certain experiences in this

field, that the defence only needed these witnesses in order to give

evidence about such threats, that the need to hear these witnesses

nevertheless had been insufficiently established by the defence as the

applicant had exclusively mentioned threats by Colombians whilst the

two brothers could only give evidence about possible threats by W. who

was not Colombian and whom the applicant had not mentioned before the

police or during the trial as having made any threats to his address.

The Court of Appeal further stated, in respect of the other

witnesses whose hearing had been requested by the defence on

20 June 1994, that it upheld the decision of 20 June 1994.

Following the parties' final pleadings, the Court of Appeal

closed its investigation.

In its judgment of 19 September 1994, the Court of Appeal quashed

the judgment of 14 February 1994, convicted the applicant of drug

offences and participation in an organisation whose aim is the

commission of offences and sentenced him to ten years' imprisonment.

The Court of Appeal based its conviction on, inter alia, the

applicant's confessing statements during his trial and to the police,

statements made by co-accused before the investigating judge or the

police, and forensic and police reports.

In the determination of its sentence, the Court of Appeal held,

inter alia, that it had been made plausible that the applicant had

recruited drug runners for the importation of cocaine, that he was the

responsible person in the Netherlands and used others to carry out the

most risky part of the activities.

The applicant filed an appeal in cassation to the Supreme Court

(Hoge Raad).

Insofar as the applicant complained of the failure to hear as

witnesses the persons who had been marginally involved in the

organisation, the Procurator-General (Procureur-Generaal) to the

Supreme Court advised the Supreme Court to consider this complaint

well-founded as on the basis of their statements the applicant could

have been able to prove his low position in the organisation's

hierarchy, this being of relevance for the determination of his

sentence. The Procurator-General further advised the Supreme Court to

reject the remainder of the complaints in cassation.

The Supreme Court did not follow this advice in its judgment of

13 June 1995, in which it rejected the applicant's appeal in cassation.

It held on this point that, insofar as the applicant could be

considered to complain about the decision of 20 June 1994 of the Court

of Appeal, this decision could not be regarded as having been taken in

the course of the proceedings under consideration. Insofar as the

applicant could be considered as complaining about the decision as

regards certain witnesses taken on 5 September 1994, the Supreme Court

held that that decision was to be considered as an explanation of the

Court of Appeal's decision not to summon these witnesses ex officio.

It noted in this respect that it had not appeared that the defence had

made any request to hear those witnesses on 5 September 1994 and,

consequently, rejected this complaint for not being supported by the

facts.

Insofar as the applicant complained of the refusal to hear R.V.

and D.V. as witnesses, the Supreme Court held that the Court of Appeal

had applied the correct standards in reaching this negative decision.

COMPLAINTS

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

Convention that his request to have P.V. and R.V. heard as witnesses

was rejected in the criminal proceedings against him. Invoking the same

provision, the applicant further complains of the refusal to hear as

witnesses a number of other persons, who could have given evidence

about the applicant's role in the organisation. The applicant submits

on this point that this decision failed to appreciate that also

marginally involved persons could provide useful information about the

nature and structure of the organisation involved.

THE LAW

The applicant complains that the trial courts' failure to examine

P.V. and R.V. and a number of other persons as witnesses in the

criminal proceedings against him violated his rights under Article 6

para. 3 (d) (Art. 6-3-d) of the Convention.

The Commission recalls that the guarantees in paragraph 3 (d) of

Article 6 of the Convention are specific aspects of the right to a fair

trial set forth in paragraph 1 of Article 6 (Art. 6-1) (cf. Eur. Court

HR, T. v. Italy judgment of 12 October 1992, Series A no. 245-C, p. 41,

para. 25). It will, therefore, examine the applicant's complaints under

these two provisions taken together.

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 ...

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;

..."

The Commission recalls that Article 6 (Art. 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

evidence before them as well as the relevance of the evidence which

defendants seek to adduce and, in particular, whether it is appropriate

to call witnesses. The essential aim of Article 6 para. 3 (d)

(Art. 6-3-d) of the Convention, as is indicated by the words "under the

same conditions", is a full "equality of arms" in the matter (cf. Eur.

Court HR, Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-

B, p. 32, para. 33; and No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).

The Commission notes that the Court of Appeal, before giving

judgment, heard the applicant and, upon request of the defence, the

police officers V. and D.V., and the expert-witness P.H. No other

persons gave evidence before the Court of Appeal.

In these circumstances, the Commission does not find that the

facts of the case disclose a violation of the principle of "equality

of arms" guaranteed by Article 6 para. 3 (d) (Art. 6-3-d) of the

Convention.

As regards the question whether the refusal to hear the other

witnesses proposed by the defence deprived the applicant of a fair

trial, the Commission notes that the defence had sought the attendance

of the brothers V. in order to hear their evidence about threats

allegedly exerted on the applicant.

The Commission notes, however, that the Court of Appeal accepted

the argument that the applicant had been subjected to threats, holding

that the occurrence of threats is a fact of common knowledge in the

drugs milieu.

In these circumstances, the Commission finds that the refusal to

hear the brothers V. did not deprive the applicant of a fair hearing

within the meaning of Article 6 (Art. 6) of the Convention.

As regards the refusal to hear the other persons whose attendance

had been requested by the defence, the Commission notes in the first

place that the applicant had failed to request the attendance of these

persons before the Court of Appeal in its changed composition.

The question could therefore arise whether, in these

circumstances, the applicant has duly exhausted domestic remedies on

this point (cf. No. 21782/93, Dec. 26.6.95, D.R. 82, p. 5).

However, the Commission does not find it necessary to determine

this question as this part of the application is in any event

inadmissible on the following grounds.

The Commission notes that the defence sought the hearing before

the trial court of these other persons in order to give evidence on

either the applicant's hierarchical position in the organisation at

issue or on the question whether or not he had been subjected to

threats.

As regards the alleged threats, the Commission has already noted

that the Court of Appeal accepted that threats had been exerted on the

applicant. Therefore, the Commission cannot find that the refusal to

hear other witnesses on this point deprived the applicant of a fair

trial within the meaning of Article 6 (Art. 6) of the Convention.

As regards the refusal to hear witnesses on the applicant's

hierarchical position in the organisation, the Commission notes that

the applicant had confirmed before the trial courts that he had been

involved in the importation of drugs and that he had recruited drug

runners.

In these circumstances, the Commission cannot find the Court of

Appeal's findings as to the applicant's role and responsibility, as

reflected in its conviction and the determination of the applicant's

sentence, arbitrary or unreasonable.

Consequently, the Commission does not find that the refusal to

hear witnesses on the applicant's position in the organisation at issue

deprived him of a fair trial within the meaning of Article 6 (Art. 6)

of the Convention.

It follows that the application must be rejected as 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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MOENIRALAM v. THE UNITED KINGDOM

MOENIRALAM v. THE UNITED KINGDOM

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