Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29838/96

by Ivan SLOBODAN

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 15 January 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

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 20 September 1995

by Ivan SLOBODAN against the Netherlands and registered on

19 January 1996 under file No. 29838/96;

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 citizen, born in 1938 in Yugoslavia, and

residing in Zwolle. Before the Commission he is not represented by a

lawyer.

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

summarised as follows.

In October and November 1992 Ms. D. and Ms. W. informed the

police that they had been raped by the applicant. Also in November 1992

the applicant's former wife and his daughter informed the police that

the latter had been sexually abused by him. In her statement the

applicant's former wife stated that during their marriage she had been

ill-treated by the applicant and that she had fled to a reception

centre for battered women with her daughter whom she thought to have

been sexually abused by the applicant.

On 11 November 1992 Ms. D. was heard by the Investigating Judge

(Rechter-Commissaris) of the Regional Court (Arrondissementsrechtbank)

of Zwolle. The applicant's lawyer had been informed of the time and

place of the hearing of Ms. D. but he chose not to attend. On

28 January 1993 the applicant's former wife and his daughter were heard

by the Investigating Judge in the presence of the applicant's lawyer.

In spite of various requests the applicant has failed to submit

a copy of the judgment of the Regional Court of Zwolle. However, it

appears from the file that on 11 May 1993 the Regional Court acquitted

the applicant of both counts of rape and convicted him of having

sexually abused his daughter and that both the applicant and the public

prosecutor filed an appeal against this judgment with the Court of

Appeal. It further appears that the applicant's conviction by the

Regional Court was based on, inter alia, the testimony of his daughter

before the Investigating Judge and a psychiatrist's report concerning

the daughter.

At the subsequent hearing on appeal before the Court of Appeal

(Gerechtshof) of Arnhem on 17 December 1993 the alleged rape victim

Ms. W. was heard in the absence of the applicant. However, the

applicant's defence counsel was able to put questions to Ms. W. The

Court of Appeal did not call the three other witnesses (the second

alleged rape victim Ms. D., the applicant's former wife and his

daughter), despite a request from the applicant. The Court of Appeal

held that these witnesses had already been heard by the Investigating

Judge and recalled that the applicant's defence counsel had been

granted the opportunity to put questions to these witnesses. It

considered that the applicant could not reasonably be held to have been

prejudiced in his defence by the refusal to summon the witnesses.

In its judgment of 29 December 1993, the Court of Appeal quashed

the judgment of the Regional Court and, after a new examination of the

facts and evidence, convicted the applicant of all charges and

sentenced him to a partially suspended term of three years'

imprisonment. The Court of Appeal used the following in evidence

against the applicant:

- a statement of the alleged rape victim Ms. W. to the police and

her statement given before the Court of Appeal;

- a statement of the alleged rape victim Ms. D. to the police and

her statement before the Investigating Judge;

- a statement of a neighbour of the applicant to the police;

- various statements of the applicant to the police;

- a statement of the applicant at the hearing before the Regional

Court;

- a statement of the applicant's former wife to the police;

- a statement of the applicant's daughter to the police;

- the birth-certificate of the applicant's daughter; and

- a statement of a police officer.

The applicant filed an appeal in cassation against this decision

with the Supreme Court (Hoge Raad). He complained, inter alia, that the

Court of Appeal had not allowed the examination of three witnesses (his

former wife, his daughter and one of the alleged rape victims) and that

the Court of Appeal had also not allowed him to attend the Court's

examination of the second alleged rape victim.

The Supreme Court rejected the appeal in cassation on

4 April 1995.

Relevant domestic law and practice

Section 292 of the Code of Criminal Procedure (Wetboek van

Strafvordering) enables the President of a Court to order an accused

to leave the courtroom so that a witness may be examined in the absence

of the accused. If such an order is made, counsel for the defence may

question the witness and the accused shall be told immediately what has

happened during his absence and only then will the investigation be

resumed.

COMPLAINTS

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

his wrongful conviction amounted to ill-treatment.

2. He further complains under Article 5 of the Convention that since

he was wrongfully convicted his detention is unlawful.

3. The applicant also complains under Article 6 paras. 1 and 3 (d)

of the Convention that the Court of Appeal failed to summon three

witnesses. In addition, he complains that he had not been allowed to

attend the Court of Appeal's examination of a further witness.

4. Finally, he invokes Article 14 of the Convention without further

substantiation.

THE LAW

1. The applicant complains that his wrongful conviction amounted to

treatment contrary to Article 3 (Art. 3) of the Convention.

Article 3 (Art. 3) of the Convention reads as follows:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Commission recalls that it is no court of appeal from

domestic courts. It cannot examine allegations that the domestic courts

incorrectly assessed the facts before them or incorrectly applied

domestic law. The Commission is, therefore, unable to determine whether

or not the applicant was wrongfully convicted.

Consequently, the Commission finds 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 under Article 5 (Art. 5) of the

Convention that his detention is unlawful.

Article 5 para. 1 (Art. 5-1) of the Convention reads, insofar as

relevant, as follows:

"Everyone has the right to liberty and security of person. No one

shall be deprived of his liberty save in the following cases and

in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a

competent court; ..."

The Commission refers to its reasoning concerning the complaint

under Article 3 (Art. 3) of the Convention above. Furthermore, there

is nothing in the present case which could warrant the conclusion that

the applicant was not convicted by a competent court.

Accordingly, the Commission finds 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.

3. The applicant further complains that the Court of Appeal failed

to summon his former wife, his daughter and one of the alleged rape

victims as witnesses. He also complains that he was not allowed to

attend the Court of Appeal's examination of the second alleged rape

victim. He invokes Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of

the Convention, which, insofar as relevant, provide as follows:

"1. In the determination ... of any criminal charge against him,

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law.

...

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 from the outset that the taking of

evidence is governed primarily by the rules of domestic law and it is

in principle for the national courts to assess the evidence before

them. It is therefore not the Commission's task to decide whether the

national courts have correctly assessed the evidence, but to determinew

hether the proceedings as a whole, including the way in which evidence

was taken, were fair as required by Article 6 para. 1 (Art. 6-1) (cf.

Eur. Court HR, Kostovski v. the Netherlands judgment of 20 November

1989, Series A no. 166, p. 19, para. 39.)

Also, Article 6 para. 3 (d) (Art. 6-3-d) of the Convention does

not give an accused an unlimited right to obtain the examination of

witnesses. It is in principle within the discretionary power of

domestic courts to establish whether the hearing of witnesses is likely

to be of assistance for discovering the truth and, if not, to refuse

the calling of such witnesses (cf. Eur. Court HR, Bricmont v. France

judgment of 7 July 1989, Series A no. 158, p. 31, para. 89).

Furthermore, the Commission reiterates that the Convention does

not preclude reliance on statements obtained at the stage of the police

inquiry and the judicial investigation, provided that the rights of the

defence have been respected. As a rule these rights require that the

defendant be given an adequate and proper opportunity to challenge and

question a witness against him either when he was making his statements

or at a later stage of the proceedings (cf. Eur. Court HR, Saïdi v.

France judgment of 20 September 1993, Series A no. 261-C, p. 56,

para. 43).

As to the notion of "witness", the Commission notes that although

the applicant's former wife, his daughter and the alleged rape victim

Ms. D. did not testify at the hearing, they should for the purposes of

Article 6 para. 3 (d) (Art. 6-3-d) of the Convention, be regarded as

a witness - a term to be given its autonomous interpretation - because

their statements, as taken down by the police and the investigating

judge, were used in evidence by the Court of Appeal (cf. Eur. Court HR,

Asch v. Austria judgment of 26 April 1991, Series A no. 203, p. 10,

para. 25).

The Commission, moreover, has had regard to the Court's judgment

in the case of Doorson v. the Netherlands (Eur. Court HR, judgment of

26 March 1996, to be published in Reports 1996) in which it is

considered that Article 6 (Art. 6) of the Convention does not

explicitly require the interests of witnesses in general, and those of

victims called upon to testify in particular, to be taken into

consideration but that, however, their life, liberty or security of

person may be at stake, as may interests coming generally within the

ambit of Article 8 (Art. 8) of the Convention. Such interests of

witnesses and victims are in principle protected by other, substantive

provisions of the Convention, which imply that the Contracting States

should organise their criminal proceedings in such a way that those

interests are not unjustifiably imperilled. Against this background,

principles of fair trial also require that in appropriate cases the

interests of the defence are balanced against those of witnesses or

victims called upon to testify (op. cit., para. 70).

In addition, the Commission has previously held that criminal

proceedings concerning rape contain special features in that they are

often conceived of as an ordeal by the victim, in particular when the

latter is unwillingly confronted with the defendant. In the assessment

of the question whether or not in such proceedings an accused received

a fair trial, account must be taken of the right to respect for the

victim's private life. The Commission has accepted that in criminal

proceedings concerning sexual abuse certain measures may be taken for

the purpose of protecting the victim, provided that such measures can

be reconciled with an adequate and effective exercise of the rights of

defence (cf. Baegen v. the Netherlands, Comm. Rep. 20.10.1994,

para. 77, Eur. Court HR, Series A no. 327-B, p. 44).

In the present case the Commission notes that the applicant's

former wife and his daughter were heard by an Investigating Judge in

the presence of the applicant's defence counsel. The Commission

observes, furthermore, that it has not been submitted by the applicant

that his defence counsel was unable to put questions to the above

mentioned witnesses. Moreover, counsel was enabled to attend the

hearing by the Investigating Judge of the alleged rape victim Ms. D.

but he chose not to do so.

The Commission observes that the Court of Appeal refused to

accede to the applicant's request to summon the three witnesses since

they had already been heard by the Investigating Judge and the

applicant's defence counsel had then been given the opportunity to

question the witnesses. For this reason the Court of Appeal found that

its refusal to summon the witnesses could not be considered prejudicial

to the applicant's defence. The Commission finds that in the

circumstances of the present case the refusal to summon the three

witnesses does not appear to be unreasonable or arbitrary. Moreover,

the Commission considers that, although the applicant's former wife did

not allege to be a victim, special circumstances existed which

justified the decision not to confront her with the applicant during

the trial. In this respect the Commission recalls that she had alleged

having been ill-treated by the applicant during their marriage as a

result of which she had fled to a reception centre for battered women

with her daughter whom she thought to have been sexually abused by the

applicant.

As regards the applicant's complaint that he was not allowed to

attend the Court of Appeal's examination of the alleged rape victim

Ms. W., the Commission observes that the applicant's defence counsel

was allowed to question this witness at the hearing before the Court

of Appeal.

Furthermore, it does not appear that, in the course of the

criminal proceedings against him, during which he was represented

throughout, the applicant had no opportunity to challenge the

witnesses' versions of the events, could not properly challenge their

reliability, or could not challenge the other evidence against him.

In these circumstances the Commission is of the opinion that the

criminal proceedings against the applicant, considered as a whole,

cannot be regarded as unfair.

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.

4. The applicant finally complains under Article 14 (Art. 14) of the

Convention.

The applicant has failed to substantiate this complaint. The

Commission considers that the circumstances of the present case do not

disclose any appearance of a violation of this right under the

Convention.

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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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SLOBODAN v. THE NETHERLANDS

SLOBODAN v. THE NETHERLANDS

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