AS TO THE ADMISSIBILITY OF

                      Application No. 25206/94

                      by Evert HOLS

                      against the Netherlands

     The European Commission of Human Rights (Second Chamber) sitting

in private on 19 October 1995, the following members being present:

           MM.   H. DANELIUS, President

                 G. JÖRUNDSSON

                 J.-C. SOYER

                 H.G. SCHERMERS

                 F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

           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 16 December 1993

by Evert HOLS against the Netherlands and registered on

20 September 1994 under file No. 25206/94;

     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 1939, and residing in

Velp, the Netherlands. Before the Commission he is represented by

Mr. L.J.L. Heukels, a lawyer practising in Haarlem, the Netherlands.

     The facts, as submitted by the applicant, may be summarised as

follows.

a.   Particular circumstances of the case

     In or around August 1990, the police started investigating

accusations of rape and sexual abuse, lodged by three sisters: A. (born

in 1968), B. (born in 1972), and C. (born in 1974). The sisters alleged

that they had been raped and sexually abused over a long period of time

by several relatives.

     The police investigation was initially not directed against the

applicant. However, at the end of 1990 or in the beginning of 1991, the

three sisters also lodged accusations against the applicant, who is

their uncle by marriage. Subsequently, the police started investigating

these allegations as well.

     It appears that, as a result of the complaints by the three

sisters, criminal proceedings were brought against at least seven

persons, amongst whom the applicant, Mrs. B.K., the mother of A., B.

and C., four of Mrs. B.K.'s brothers and Mr. H.W. who is married to a

sister of A., B. and C.

     The applicant was arrested on 15 January 1991 and subsequently

detained on remand. Requests for his release were rejected on

21 May 1991 and 14 August 1991. He was released on 26 February 1992.

     During interrogations by the police on 16 and 17 January 1991,

he confessed that he had raped B. When he was interrogated by the

investigating judge (rechter-commissaris) on 18 January 1991, he

withdrew his confessions. The next day, however, he again confessed to

the police that he had raped B.

     In January and February 1991, the investigating judge heard A.,

B. and C., two of their sisters and their mother. The applicant and his

lawyer were given the opportunity to submit written questions to the

investigating judge, who then would put these questions to the

witnesses. They were not allowed to question the witnesses directly.

The applicant and the public prosecutor could follow the examinations

on a TV-monitor in a separate room. The investigating judge also heard

the police officers who had interrogated the applicant. They denied

that they had exerted unacceptable pressure on the applicant and stated

that a doctor had checked the applicant's health.

     On 22 March 1991, the applicant was summoned to appear before the

Regional Court (Arrondissementsrechtbank) of Arnhem on 9 April 1991.

He was charged with the multiple rape of B. between 1979 and 1986.

     On 9 April 1991, the Regional Court adjourned its examination of

the case until 21 May 1991. On 21 May 1991 the Regional Court examined

a social worker, who had been in contact with the applicant and his

wife, and adjourned its further examination until 13 August 1991.

     On 13 and 14 August 1991, the Regional Court examined the case.

The applicant, referring to his bad state of health and his limited

intellectual capacities, stated that his confessions were incorrect and

that they were the result of pressure exerted by the police during his

interrogations by the police.

     On 27 August 1991, the Regional Court convicted the applicant of

multiple rape of B. and sentenced him to two years and six months'

imprisonment. The Regional Court used in evidence statements made by

B. to the police and before the investigating judge and the confessions

of the applicant to the police. It considered that it had not been

established that the applicant's confessions were the result of

pressure exerted on him by the police. The applicant filed an appeal

with the Court of Appeal (Gerechtshof) of Arnhem.

     On 13 and 14 January 1992, the investigating judge heard a number

of witnesses, including B., in the related criminal proceedings against

some of the other accused. A video recording was made of the

examination of these witnesses. B. was not heard in connection with the

proceedings against the applicant.

     The Court of Appeal began its examination of the applicant's case

on 25 February 1992. At that time, the separate cases of all accused,

except Mr. H.W. who had not filed an appeal against his conviction by

the Regional Court, were all pending before the Court of Appeal. The

Court of Appeal dealt with the cases on 25 and 26 February, 6 May and

2, 3, 5, 10, 17 and 19 June 1992. Although all cases were dealt with

simultaneously, they remained formally separated. In the proceedings

on appeal, the applicant again denied the accusations against him.

     On 25 February 1992, the Court of Appeal heard police officers

K., M. and S. These police officers had been involved in the

examinations of B. and/or the interrogations of the applicant. The

Court of Appeal questioned them, inter alia, on the interrogation

tactics used, on how the applicant's confessions had come about and

whether they had exerted pressure on the applicant.

     On 26 February 1992, at the applicant's request, the Court of

Appeal heard Mr. P., a psychologist having a certain expertise as

regards the particular problems surrounding incest.

     Also on 26 February 1992, the Court of Appeal viewed the video

recording that had been made of the examination of B. by the

investigating judge the previous month. Subsequently, the applicant

requested that B. be summoned before the Court of Appeal.

     The Procurator General (Procureur-generaal) objected to an

examination of B. in view of the mental stress this would cause her.

She stated that B. had been advised by her psychiatrist not to testify

again. The Court of Appeal, however, decided to summon B. and adjourned

its further examination of the case until 6 May 1992.

     On 6 May 1992, the Court of Appeal adjourned its further

examination of the case until 2 June 1992 as the Procurator General

could not attend the hearing and as it had not been possible for a

colleague to get acquainted with the extensive case-file in time.

     On 2 June 1992, the Court of Appeal resumed its examination of

the case. Despite objections by the defence, the Court of Appeal

decided to hear B. in camera and in the absence of the applicant. It

considered, inter alia:

     "... that the hearing of the witness B. ... shall take

     place behind closed doors, for the weighty reason that the

     interest of the investigation and the finding of the truth

     so require. After all, the witness must be enabled to

     respond as freely and frankly as possible to the questions

     that will be put to her about the charges against the

     suspect, knowing that her statements will not directly come

     to public notice ... that, furthermore, the hearing shall

     take place in the absence of the suspect, since a direct

     confrontation between the witness and the suspect is

     psychologically and emotionally too burdensome for the

     witness...."

     B. was heard in a separate room, in the presence of the three

judges of the Court of Appeal, the Registrar to the Court of Appeal,

the Procurator General, the applicant's lawyer, as well as B.'s lawyer

and a social worker. The applicant remained in the court room, where

he could follow the examination on a TV-monitor. In addition to the

applicant, the lawyers of the other accused, Mr. P. and a number of

court officers (parketpolitie) were present in the court room. They too

could follow the examination on the TV-monitor.

     Before the examination started, the President of the Court of

Appeal informed B. that she was not obliged to retrieve from her memory

different kinds of details from repressed events from the past, in view

of the considerable emotional strain these questions had caused in

previous examinations in the other related criminal cases.

     The Court of Appeal put the questions that had been submitted

beforehand in writing by the applicant to B. The Court of Appeal gave

the applicant's lawyer and the Procurator General the opportunity to

put questions to the witness directly. The examination of the witness

was interrupted to give the applicant's lawyer the opportunity to

consult his client to see if he wished to put additional questions to

the witness.

     After B. had been heard, the three judges, the Registrar, the

Procurator General and the applicant's lawyer returned to the court

room, where the President of the Court of Appeal gave a summary of the

statements of the witness. The applicant stated that he had been able

to follow the hearing on the TV-monitor and that he did not have any

additional questions.

     Also on 2 June 1992, the Court of Appeal heard A. and C. in the

cases of some of the other accused. At the applicant's request, the

transcripts of their examinations were added to his case-file.

     On 3 June 1992, the Court of Appeal heard a number of witnesses

in the cases of some of the other accused. At the applicant's request

the statements of these witnesses were added to his case-file. These

witnesses had occasionally gone swimming with A., B. and C. between

1986 and 1988 or 1989.

     On 3 June 1992, the applicant requested the Court of Appeal to

hear B. again. He wished to confront her with statements made by the

witnesses on the same day. He wished to ask B. when exactly she went

swimming and what kind of bathing attire she then wore.

     The Procurator General objected to a new hearing of B. The

request by the defence to be allowed to react to the objection of the

Procurator General was rejected by the Court of Appeal. Its President

stated that the Court of Appeal was aware of the opinion and arguments

of the defence. After having deliberated, the Court of Appeal rejected

the request to hear B., considering, inter alia:

     "... that the defence has been given ample opportunity to

     question the witness. The court itself has observed that

     the recollection of the events produced very burdensome

     negative emotions on the part of the witness. The interest

     of the defence in an additional examination does not, in

     the court's opinion, outweigh the detriment to be

     experienced by the witness as a result of this [an

     additional hearing]. The court finds a further hearing of

     B. ... neither desirable nor necessary."

     The Court of Appeal subsequently heard Mr. P. He said that he had

seen the examinations of A., B. and C. on 2 June 1992 via a TV-monitor.

He stated that his first impression was that the examinations had been

very burdensome, painful and emotional for them, that they had

repeatedly been unable to answer a question because of their emotions,

and that these emotions appeared to be genuine.

     In the course of Mr. P.'s examination, the applicant's lawyer

mentioned that in April 1988, B. and C. had reported to the police that

Mr. W., at that time a friend of their mother, had raped them. Police

officer M. had been involved in the case against Mr. W.

     On 5 June 1992, as his own lawyer Mr. P.R. Wery was not present,

the applicant was represented by Mr. L.J.L. Heukels, who informed the

Court of Appeal that he had recently been informed, by one of the

lawyers representing one of the other accused in the related cases, of

the case-file on the criminal proceedings against Mr. W., whom C. and

B. had accused of rape in 1988. That case-file contained two medical

certificates from the gynaecologist Dr. H.-K., who had examined B. and

C. on 27 April 1988. In the certificates, Dr. H.-K. stated that B.'s

hymen was ruptured and C.'s hymen appeared not to be ruptured. Mr. W.'s

case-file also contained a procès-verbal in which B. stated that she

did not know much about sex and that she supposed that her hymen had

been ruptured by Mr. W. when she had intercourse with him for the first

time in 1987 or 1988, because she had lost blood on that occasion.

     The Court of Appeal decided to add the case-file of Mr. W. to the

applicant's case-file and to summon Dr. H.-K. as an expert witness.

That same afternoon, the testimony of Dr. H.-K. was heard.

     Dr. H.-K. stated that it is practically impossible to state with

100% certainty whether intercourse has taken place on the basis of an

inspection of the hymen. Dr. H.-K. had had the impression, given the

state of B.'s hymen and the state of B.'s vaginal secretion, that B.

had had frequent sexual intercourse. She further stated that B.'s

behaviour had given her the impression that she had "a complete life

behind her". As regards C. she had had the impression that C. had not

had frequent sexual intercourse.

     On 10 June 1992, the applicant's lawyer informed the Court of

Appeal that, in accordance with an agreement concluded between the

lawyers representing the other accused in the related cases

simultaneously pending before the Court of Appeal, the defence wished

to submit a general defence plea. This general plea was subsequently

submitted by one of the lawyers, Mr. L.J.L. Heukels. The defence, inter

alia, drew attention to the apparent discrepancies between B.'s

accusations against the applicant and the contents of Mr. W.'s case-

file. The defence requested the Court of Appeal to appoint one or more

experts, such as a psychiatrist, a clinical psychologist, an incest

expert and/or a traumatologist, to investigate the mental health of the

alleged victims.

     The Court of Appeal decided to hear the testimony of another

gynaecologist. It rejected the request by the defence to appoint other

experts since it did not consider this necessary. The Court of Appeal

decided to summon the gynaecologist Professor H., who had been proposed

by both the Procurator General and the defence.

     On 17 June 1992, the Court of Appeal heard Professor H. and

Dr. H.-K. The applicant was given the opportunity to put questions to

both witnesses.

     On 19 June 1992, the Court of Appeal, at the applicant's request,

heard another gynaecologist, Professor E., as an expert witness. He

stated that Dr. H.-K.'s method of inspection was reliable and that he

had no reason to doubt her conclusions.

     Also on 19 June 1992, the Court of Appeal heard the Procurator

General's closing speech, in which she demanded a sentence of three

years' imprisonment, and the applicant's final pleas. The applicant's

final pleas consisted of a general plea concerning all the accused in

the related cases, presented by Mr. L.J.L. Heukels, an additional final

plea in all cases and a final plea concerning the applicant's case in

particular. The latter two pleas were presented by the applicant's

lawyer Mr. P.R. Wery.

     The defence argued, inter alia, that the prosecution should be

declared inadmissible for a number of reasons. It alleged that the

police, for whose actions and failures the prosecuting authorities are

responsible, had intentionally withheld Mr. W.'s case-file, including

the medical certificates on B. The defence further complained that,

during a recess of one of the hearings before the Court of Appeal, the

Procurator General had entered the judges' chambers, where the fully-

robed judges were present. The defence also complained that the rights

of the defence, as regards the examination of the victims had been

restricted to such an extent that it could not be held that the

applicant had received a fair trial. In particular, the Court of Appeal

had refused to summon other experts as witnesses, the Court of Appeal

had told B. before she was heard that she was not obliged to go into

details, the applicant had had inadequate opportunity to interrogate

B. directly. He had had no opportunity to question her after the case-

file of Mr. W. had been added to his case-file. The applicant also

complained that on 2 June 1992, contrary to (Section 415 in conjunction

with Section 290 of) the Code of Criminal Procedure, the Court of

Appeal had excused B. from further examination without the consent of

the defence. The defence requested the Court of Appeal to hear B.

again.

     In its judgment of 3 July 1992, the Court of Appeal quashed the

Regional Court's judgment of 27 August 1991, convicted the applicant

of multiple rape of B. and sentenced him to one year and eight months'

imprisonment. It used in evidence the statements of B. to the police

and before the Court of Appeal, and the confessions of the applicant

made to the police. It held that the methods used in the police

investigations had not been incorrect and that it had not been made

plausible in any way that the police had acted improperly and without

due care.

     As regards the alleged withholding of documents, the Court of

Appeal considered, inter alia:

     "The argument that the police intentionally failed to add

     to the case-file [the reports made by B. and C. against Mr.

     W. and the medical certificates on them of 27 April 1988]

     lacks foundation, because both in the ... procès-verbal in

     the present criminal proceedings nr. M 9932/AB/1991 of

     March 1991 ... and in the procès-verbal of the examination

     of C. dated 29 January 1991, nr. M 9931/G/1991 ... the

     police officers explicitly referred to the case-file of the

     criminal case against Mr. W., mentioning both the date of

     the criminal complaint and the registration number of the

     case-file."

     As regards the presence of the Procurator General in the judges'

chambers, the Court of Appeal held:

     "The court considers on this point that the Procurator

     General entered the judges' chambers during a recess of the

     trial only in order to hand a number of letters from the

     lawyers in the present and other cases to the members of

     the court. This happened while no deliberations were taking

     place in the judges' chambers, which, as is correctly

     stated in the [defence's] written plea, has been stated by

     the President [of the Court of Appeal].

     In the opinion of the court there were, under these

     circumstances, no reasonable grounds to fear that the

     Procurator General was involved in any way in deliberations

     in chambers."

     Regarding the applicant's complaint that he was not given an

adequate and proper opportunity to question B., the Court of Appeal

considered, inter alia:

     "The court itself has observed that the examination in

     general, and some of the questions put by the defence in

     particular, entailed a strong emotional burden for B. The

     examination had to be interrupted several times because the

     witness, as a result of intense emotions, was not capable

     to reply to the questions put to her. At certain moments

     the witness B. lapsed into fits of crying. This was

     apparently the result of the confrontation with, and the

     recollection of, the suffering experienced in her youth.

     The court finds that with this the limit had been reached

     of what could be required of this obviously traumatised

     young woman - who, in the course of the present criminal

     proceedings had already been heard repeatedly about the

     experiences in her youth - as regards the interest of the

     defence. For that reason it was in the opinion of the court

     unacceptable to require this witness to stay in the court

     room after the examination, or after a recess of the

     hearing to be present again the next day(s), so that

     possibly she could be subjected again to an examination.

     For the same reason it was undesirable to comply with the

     request of the defence, which was made at a subsequent

     stage of the trial, to summon this witness once again.

     Insofar as the defence was not allowed to put a question,

     or insofar as the witness was allowed not to answer a

     question, this was done because, in the opinion of the

     court, the question at issue implied a confrontation with,

     and the recollection of suffering experienced in [her]

     youth, which could not be done in view of the emotional

     state of the witness."

     Regarding the applicant's argument that he had not been given

adequate time and facilities to prepare his defence, the Court of

Appeal considered, inter alia:

     "In the course of the various court hearings, the defence

     has been able to submit whatever it considered relevant. As

     a result of the addition of documents to the case-file at

     the court hearing of 5 June 1992, an expert witness was

     heard on the same day and two additional experts were heard

     during the court hearings of 17 June and 19 June 1992,

     respectively. Those additional hearing dates were

     determined in consultation with, and with the approval of

     the defence and the Procurator General. The court finds

     that the suspect - in view of this procedure - cannot have

     been harmed in his defence and that there has been no

     violation of the principle of a fair trial."

     The Court of Appeal rejected the applicant's request to appoint

experts to investigate the mental health of B. and her faculty of

memory, or to hear further witnesses, considering that it did not find

it necessary to do so. It also rejected the request to hear B. again,

considering that it did not find it necessary or desirable to do so.

     The applicant subsequently lodged an appeal in cassation with the

Supreme Court (Hoge Raad). In the proceedings in cassation he was

represented by Mr. L.J.L. Heukels, who submitted nine complaints:

- that the decision to hear B. in camera had not been taken in

accordance with the law;

- that on 2 June 1992 the President of the Court of Appeal informed B.

before she was heard that she was not obliged to retrieve from her

memory different kinds of details from repressed events from the past,

whereas such questions were essential for the defence;

- that on 3 June 1993 the defence was not allowed to react to the

Procurator General's objection to the defence's request to hear B.

again;

- that the Court of Appeal rejected the request of the defence to hear

B. again;

- that, contrary to Section 290 of the Code of Criminal Procedure, B.

did not remain in the court room until she was given formal permission

to leave with the consent of the defence and the Procurator General;

- that after being heard B. was not notified that she should be present

when the Court of Appeal resumed its examination the next day;

- that the Court of Appeal did not reply to the complaint that the

charges against the applicant were not in conformity with Section 261

of the Code of Criminal Procedure in that they were too vague;

- that the Court of Appeal did not reply to the complaint that the

prosecution should have been declared inadmissible because the public

prosecutor had instituted an additional investigation without having

informed the applicant and the Regional Court; and

- that at some point in time the Procurator General had been present

in the judges' chambers, where at that moment fully-robed judges were

present.

     On 27 April 1993, the Advocate General (Advocaat-Generaal) to the

Supreme Court submitted his written conclusions, which were transmitted

to the applicant.

     On 22 June 1993, the Supreme Court rejected the applicant's

appeal in cassation. It upheld the reasoning of the Court of Appeal.

It considered, inter alia, that on 2 June 1992 the applicant had not

objected when B. did not appear in the court room after her she had

been heard. Moreover, the applicant had not objected when the President

of the Court of Appeal gave the names of the persons who had to be

present again on 3 June 1992 and did not mention B.'s name.

     Insofar as the applicant complained that the Court of Appeal had

failed to reply to the complaint of the re-opening of the police

investigation, the Supreme Court held that this omission did not have

to result in a cassation of the Court of Appeal's judgment. The Supreme

Court stated that it was, ex officio, aware of the fact that Mr. L.J.L.

Heukels had raised this same complaint before the Court of Appeal in

the six other related cases and that the Court of Appeal in all cases

had rejected it on identical grounds. The Supreme Court noted that,

apparently due to an error - which according to the Supreme Court

should have been clear to Mr. Heukels - the Court of Appeal overlooked

this complaint in its judgment in the present and one other case. The

Supreme Court accepted the Court of Appeal's grounds, as stated in its

respective judgments in the other cases, for rejecting this complaint.

     The Supreme Court further found that the Court of Appeal had not

acted contrary to the applicable sections of the Code of Criminal

Procedure, and that the proceedings at issue were in conformity with

the requirements of Article 6 para. 1 of the Convention.

b.   Relevant domestic law

     Pursuant to Section 24 of the Judicial Organisation Act (Wet op

de Rechterlijke Organisatie) it is prohibited for members of the

judiciary to have private contacts about pending or future proceedings

with the parties to those proceedings. Non-compliance with this

prohibition may result in a disciplinary reprimand (Section 14 of the

Judicial Organisation Act) or, if it concerns a second time, even

dismissal (Section 11 d.3 of the Judicial Organisation Act). Pursuant

to Section 28 of the Judicial Organisation Act members of the judiciary

are obliged to keep deliberations secret.

COMPLAINTS

1.   The applicant complains that, during the proceedings before the

Regional Court, the public prosecutor ordered the police to re-open the

police investigation, without informing the Regional Court or the

defence whilst the results of the re-opened investigation were added

to his case-file after he had lodged his appeal with the Court of

Appeal.

2.   The applicant complains that the Court of Appeal failed to reply

to the previous complaint. After having acknowledged that this

constituted a failure, the Supreme Court corrected this omission

without giving the defence the opportunity to react to this point.

3.   The applicant complains that the Court of Appeal heard B. in

camera and in his absence.

4.   The applicant complains that his defence rights were unduly

restricted in the examination of B., as the President of the Court of

Appeal told her before her examination on 2 June 1992 that she was not

required to answer questions that were emotionally burdensome.

5.   The applicant complains that, contrary to the Code of Criminal

Procedure, after being heard B. did not remain in the court room until

she was given formal permission to leave with the consent of the

defence and the Procurator General and that she was not notified that

she should be present when the Court of Appeal resumed its examination

the next day.

6.   The applicant complains that, on 3 June 1992, his lawyer was not

allowed to reply to remarks of the Procurator General in respect of the

request of the defence to hear B. again.

7.   The applicant complains that the Court of Appeal rejected his

request to hear B. again after new - exculpating - facts had become

known whereas it does not appear from the procès-verbal or the Court

of Appeal's judgment that a further examination was unacceptable from

a medical or psychological point of view.

8.   The applicant complains that the Court of Appeal unjustly failed

to summon witnesses in respect of whom new facts had appeared in the

course of the proceedings on appeal.

9.   The applicant complains that the Court of Appeal used B.'s

statements in evidence although the defence had had insufficient

opportunity to challenge or verify these statements in the light of the

exculpating facts which appeared after her examination.

10.  The applicant complains that the Court of Appeal added statements

made by the other alleged victims in the related criminal proceedings

to his case-file on the understanding that these were not to be

considered as having been made in the applicant's case.

11.  The applicant complains that the Procurator General was present

in the judges' chambers of the Court of Appeal while the judges of that

court were there to deliberate. The Court of Appeal thus gave the

impression of allowing itself to be influenced by the Procurator

General and therefore of not being impartial.

12.  The applicant complains that the Supreme Court unjustly rejected

his complaint of the vagueness of the charges against him.

     The applicant invokes Article 6 paras. 1, 2 and 3 of the

Convention.

THE LAW

1.   The applicant has lodged a number of complaints under Article 6

(Art. 6) of the Convention. This provision, insofar as relevant, reads:

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

     him, everyone is entitled to a fair and public hearing ... by an

     independent and impartial tribunal ... the press and public may

     be excluded from all or part of the trial in the interest of

     morals, ..., where the interests of juveniles or the protection

     of the private life of the parties so require, or to the extent

     strictly necessary in the opinion of the court in special

     circumstances where publicity would prejudice the interests of

     justice.

     2.    Everyone charged with a criminal offence shall be presumed

     innocent until proved guilty according to law.

     3.    Everyone charged with a criminal offence has the following

     minimum rights:

           a.    to be informed promptly, in a language which he

     understands and in detail, of the nature and cause of the

     accusation against him;

           b.    to have adequate time and facilities for the

     preparation of his defence;

     ...

           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;

     ..."

2.   Insofar as the applicant alleges that the proceedings against him

were not in conformity with Article 6 para. 2 (Art. 6-2) of the

Convention and insofar as this complaint has been raised in the

domestic proceedings, the Commission considers that it has remained

fully unsubstantiated.

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3.   The Commission will examine the applicant's complaints under

Article 6 paras. 1 and 3 (Art. 6-1, 6-3) taken together, since the

guarantees in paragraph 3 of Article 6 (Art. 6-3) represent constituent

elements of the general concept of a fair hearing set forth in

paragraph 1 (Art. 6-1) of this provision (cf. Eur. Court H.R., Lala

judgment of 22 September 1994, Series A no. 297-A, p. 12, para. 26).

4.   The applicant complains that, during the proceedings before the

Regional Court, the public prosecutor ordered the police to re-open the

police investigation, without informing the Regional Court or the

defence whilst the results of the re-opened investigation were added

to his case-file after he had lodged his appeal with the Court of

Appeal.

     The Commission notes that it does not appear from the facts

submitted by the applicant that, pending the proceedings against him

before the Regional Court, the public prosecutor ordered the police to

re-open its investigation. This complaint, therefore, lacks foundation.

     It follows that this complaint is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

5.   The applicant complains that the Court of Appeal failed to reply

to the previous complaint. After having acknowledged that this

constituted a failure, the Supreme Court corrected this omission

without giving the defence the opportunity to react to this point.

     The Commission notes that the Supreme Court dealt with this point

in reply to the applicant's own complaint and cannot find that the way

this was done violated the applicant's rights under Article 6 (Art. 6)

of the Convention.

     It follows that this complaint is also manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

6.   The applicant complains that, on 2 June 1992, B. was allowed not

to answer emotionally burdensome questions, and that she was heard in

camera and in his absence.

     The Commission recalls that, according to the second sentence of

Article 6 para. 1 (Art. 6-1) of the Convention, the public may be

excluded from part of the trial on one or more of the grounds mentioned

in that sentence. In view of the nature of the charges against the

applicant, the Commission considers that the decision of the Court of

Appeal to hear B. in camera was in conformity with the exceptions

mentioned in Article 6 para. 1 (Art. 6-1) of the Convention.

     Insofar as the applicant complains that B. was heard in his

absence and that she was allowed not to answer emotionally burdensome

questions, the Commission recalls that the rights secured by Article

6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention are those of the

accused and the defence in general. In order to determine whether these

rights were respected, it is not sufficient to consider the situation

in which the accused himself is placed. Consideration must rather be

given to the situation in which the defence as a whole is placed. In

exceptional circumstances there may be reasons for hearing a witness

in the absence of the accused on condition that his lawyer is present

(cf. No. 11219/84, Dec. 10.7.85, D.R. 42, p. 287), or to allow a

witness not to answer certain questions.

     The Commission has also regard to the special features of

criminal proceedings concerning rape and other sexual offences. Such

proceedings 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. Therefore, the

Commission accepts 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 the defence (Baegen v. the

Netherlands, Comm. Report 20.10.94, para. 77).

     In the present case, the Court of Appeal heard B. in the absence

of the applicant, but in the presence of the applicant's lawyer, who

could and in fact did question her directly. The applicant could follow

B.'s examination via a TV-monitor. The Court of Appeal interrupted B.'s

examination in order to allow the applicant's lawyer to consult the

applicant to see if the latter wished to put additional questions to

the witness. After B.'s examination the applicant informed the Court

of Appeal that he had no further questions to B.

     In these circumstances the Commission finds that the defence was

provided with sufficient opportunity to hear B. on 2 June 1992. It

further finds that the interests of the defence could be safeguarded

just as well by the applicant's lawyer as by the applicant himself. The

Commission therefore finds that B.'s examination in camera and in the

applicant's absence was not contrary to Article 6 paras. 1 and 3

(Art. 6-1, 6-3) of the Convention.

     It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

7.   The applicant further complains that, although the defence had

not formally waived its right to question B., she did not return to the

court room after she had been heard before the Court of Appeal, and

that the Court of Appeal, contrary to the Code of Criminal Procedure,

failed to notify her that she should be present when the Court of

Appeal would resume its examination. The applicant also raises a number

of complaints in respect of his unsuccessful request to the Court of

Appeal to hear B. again and to hear other witnesses in connection with

new and allegedly exculpating facts which had appeared after her

examination on 2 June 1992. He complains in particular that his lawyer

was not allowed to reply to the Procurator General's objections against

a new hearing of B., that the Court of Appeal used B.'s statements in

evidence whereas it had rejected the request by the defence to hear her

again and to hear other witnesses, thereby depriving the defence of the

opportunity to challenge these statements in the light of the facts

which had appeared after B.'s examination before the Court of Appeal.

     Insofar as the applicant complains that the Court of Appeal

violated the Code of Criminal Procedure by failing to tell B.,

following her examination on 2 June 1992, that she had to be present

at the next court hearing as the defence had not formally waived its

right to question her, the Commission recalls that, in accordance with

Article 19 (Art. 19) of the Convention, its task is to ensure the

observation of the obligations undertaken by the parties to the

Convention. It is not competent to deal with a complaint alleging that

errors of law or fact have been committed by domestic authorities,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention (cf. No. 12013/86, Dec. 10.3.89, D.R. 59, p. 100).

     It remains to be examined whether the applicant's rights under

Article 6 paras. 1 and 3 (b) (Art. 6-1, 6-3-b) of the Convention have

been respected as regards the administration of evidence in his case.

     The Commission notes that, immediately after B.'s had been heard,

the applicant informed the Court of Appeal that he had no further

questions to B. Moreover, it was open for the applicant to request the

Court of Appeal to hear B. a second time, which the applicant did,

although unsuccessfully.

     In these circumstances the Commission does not find that the fact

that B., after she had been heard, did not return to the court room and

was not told to be present at the next session of the Court of Appeal

harmed the applicant in his defence.

     As regards the complaint that, before the Court of Appeal, the

defence was not allowed to react to the Procurator General's objections

to the request of the defence to hear B. again, the Commission finds

no indication that this violated the principle of equality of arms or

harmed the applicant in his defence.

     As regards the Court of Appeal's rejection of the applicant's

request to hear B. again and to hear other witnesses, the Commission

recalls that Article 6 (Art. 6) does not grant the accused an unlimited

right to secure the appearance of witnesses in court. It is normally

for the national courts to decide whether it is necessary or advisable

to hear a witness (cf. No. 8231/78, Dec. 6.3.82, D.R. 28, p. 5,

No. 10563/83, Dec. 5.7.85, D.R. 44, p. 113; and Eur. Court H.R.,

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

     The Commission, recalling its finding that B. was heard before

the Court of Appeal in accordance with the requirements of Article 6

paras. 1 and 3 (Art. 6-1, 6-3) of the Convention (see para. 6 above),

notes that Mr. P., a psychiatrist, stated before the Court of Appeal

that he had the impression that the examination before the Court of

Appeal had been extremely burdensome, painful and emotional for B. and

her sisters. Also the Court of Appeal itself had observed that B.'s

examination before it had been emotionally very burdensome for her and

had found that the limit had been reached of what could be required of

her in respect of the interest of the defence.

     In these circumstances, and taking into consideration the special

features of criminal proceedings concerning rape and other sexual

offences and, in particular, the situation of victims of such offences,

the Commission cannot consider the Court of Appeal's decision not to

hear B. again as arbitrary or unreasonable.

     The Commission further notes that, after the case-file of Mr. W.

had been admitted as evidence, three gynaecologists were extensively

heard before the Court of Appeal in connection with the information

contained in that case-file, and that the Court of Appeal did not find

it necessary to appoint further experts to investigate the mental

health of B. and her faculty of memory, or to hear further witnesses.

     The Commission also notes that B.'s statements were not the only

evidence on which the Court of Appeal based the applicant's conviction

as regards the charges involving her. It had regard in particular to

the confessions the applicant had made to the police. It is true that

the applicant withdrew his earlier confessions before the trial courts,

but, 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 various declarations

concerned (cf. No. 8414/78, Dec. 4.7.79, D.R. 17, p. 231).

     The Commission, therefore, cannot find that the Court of Appeal's

refusal to hear B. again or to summon further witnesses deprived the

applicant of a fair hearing within the meaning of Article 6 paras. 1

and 3 (Art. 6-1, 6-3) of the Convention.

     Furthermore, noting that the applicant was convicted on the basis

of evidence which was debated in the course of adversarial proceedings

in which the applicant was represented by a lawyer, who, in the course

of nine hearings before the Court of Appeal, was provided with ample

opportunity to state the applicant's case and to challenge the evidence

against the applicant, the Commission finds that the proceedings

against the applicant, considered as a whole, were in conformity with

the requirements of Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the

Convention.

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

8.   The applicant complains that the Court of Appeal added statements

made by the other alleged victims in the related criminal proceedings

to his case-file on the understanding that these were not to be

considered as having been made in the applicant's case.

     The Commission has already examined the administration of

evidence in the criminal proceedings against the applicant and the

fairness of those proceedings as a whole (see paras. 6 and 7 above).

The Commission does not find that the present complaint requires a

separate examination.

     It follows that this complaint is also manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

9.   The applicant further complains of the Procurator General's

presence in the judges' chambers of the Court of Appeal during an

interruption of the court hearing. He submits that this cast a doubt

on the impartiality of the Court of Appeal.

     The Commission recalls that the existence of impartiality for the

purposes of Article 6 para. 1 (Art. 6-1) of the Convention must be

determined according to a subjective test, that is on the basis of the

personal conviction of a particular judge in a given case, and also

according to an objective test, that is ascertaining whether the judge

offered guarantees sufficient to exclude any legitimate doubt in this

respect (Eur. Court H.R., Hauschildt judgment of 24 May 1989, Series A

no. 154, p. 21, para. 46, and Padovani judgment of 26 February 1993,

Series A no. 257-B, p. 20, para. 25).

     The Commission notes that the applicant has not expressed doubts

as to the personal impartiality of the members of the Court of Appeal.

     As to the objective test, it must be determined whether, quite

apart from the judge's conduct, there are ascertainable facts which may

raise doubts as to his impartiality. In this respect even appearances

may be of a certain importance. What is at stake is the confidence

which the courts in a democratic society must inspire in the public and

above all, as far as criminal proceedings are concerned, in the

accused. It follows that, in deciding whether in a given case there is

a legitimate reason to fear that a particular judge lacks impartiality,

the opinion of the accused is important but not decisive. What is

decisive is whether his fear can be regarded as objectively justified

(Padovani judgment, loc. cit., p. 20, para. 27).

     In its judgment of 3 July 1992, the Court of Appeal stated on

this point that during an interruption of the trial, the Procurator

General entered the judges' chambers only in order to hand a number of

letters to the members of the Court of Appeal and that no deliberations

took place at that time. The Commission has no reason to doubt the

accuracy of this statement. Having regard also to Section 24 in

conjunction with Sections 14 and 11 of the Judicial Organisation Act,

the Commission finds no elements that warrant misgivings about the

objective impartiality of the Court of Appeal.

     It follows that this complaint must be rejected as manifestly

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

Convention.

10.  As regards the applicant's complaint that the charges against him

were not in conformity with Section 261 of the Code of Criminal

Procedure in that they were too vague, the Commission recalls that it

is not competent to review whether domestic courts have correctly

applied national law. It can only examine complaints under the

Convention (see para. 6 above). The Commission finds that the charges

against the applicant, as stated in the summons of 22 March 1991, were

sufficiently clear for the purposes of Article 6 para. 3 (Art. 6-3) of

the Convention (cf. Chichlian and Ekindjian v. France, Comm. Report

16.3.89, paras. 49-50, Eur. Court H.R., Chichlian and Ekindjian

judgment of 28 November 1989, Series A no. 162-B, p. 49).

     It follows that this complaint is 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.

Secretary to the Second Chamber       President of the Second Chamber

       (M.-T. SCHOEPFER)                       (H. DANELIUS)