AS TO THE ADMISSIBILITY OF

                      Application No. 26596/95

                      by Willem KREMERS

                      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 22 December 1993

by Willem KREMERS against the Netherlands and registered on

1 March 1995 under file No. 26596/95;

     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 1946, and residing in

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

Mr. A.H.M.M. Romviel, a lawyer practising in Weurt, the Netherlands.

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, amongst whom the applicant who is their uncle.

     The police investigation was initially directed against, inter

alia, the applicant and two of his brothers. Later, at the end of 1990

or in the beginning of 1991, A., B. and C. also accused two other

relatives, Mr. H. and a third brother of the applicant. Subsequently,

the public prosecutor (officier van justitie) ordered the re-opening

of the police investigation. During the re-opened police investigation

additional evidence against the applicant appeared. The results of the

re-opened police investigation were added to the applicant's case-file

in November 1991.

     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, three of his brothers, his

brother-in-law Mr. H., his sister Mrs. B.K., who is the mother of A.,

B. and C., and Mr. H.W. who is married to a sister of A., B. and C.

     The applicant was arrested on 18 September 1990 and subsequently

detained on remand. He was released on 2 April 1991.

     On 23 November 1990, the applicant was summoned to appear before

the Regional Court (Arrondissementsrechtbank) of Arnhem on

11 December 1990. He was charged with multiple rape of B. and,

alternatively, indecent assault of B. The offences were alleged to have

taken place between 1979 and 1985.

     On 11 December 1990, the Regional Court, following a request by

the applicant's lawyer, referred the case to the investigating judge

(rechter-commissaris) in order to hear five witnesses, amongst whom A.,

B. and C., and adjourned its examination of the case.

     On 22 January 1991, the Regional Court referred the case to the

investigating judge for a full investigation of the case, and in

particular an examination of the alleged victims and witnesses. It

adjourned its further examination until 26 March 1991.

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

B. and C., two of their sisters and their mother in the absence of both

the public prosecutor and the applicant. The applicant and his lawyer

and the public prosecutor could follow the examinations on a TV-monitor

in a separate room and had been provided with the possibility to submit

their questions to these witnesses beforehand in writing.

     On 26 and 27 March 1991, the Regional Court resumed its

examination of the case. The applicant denied all accusations against

him. At the applicant's request, the Regional Court subsequently heard

the applicant's wife. After having heard the final pleas, the Regional

Court closed its examination.

     On 2 April 1991, the Regional Court acquitted the applicant of

the charges against him and ordered his immediate release. The public

prosecutor filed an appeal with the Court of Appeal (Gerechtshof) of

Arnhem.

     In November 1991, the results of the re-opened police

investigation were added to the applicant's case-file by the Procurator

General (Procureur-Generaal) to the Court of Appeal.

     On 24 December 1991, the Court of Appeal started its examination

of the applicant's case. Following the applicant's request, the Court

of Appeal referred the case to the investigating judge for an

examination of B., her sister D., Mr. H.W., Mr. H. and Ms. S.H. who had

regularly spent weekends at B.'s home. The Court of Appeal rejected the

applicant's request to order an examination by the investigating judge

of B.'s sister E. It adjourned its further examination until

25 February 1992.

     On 13 January 1992, the investigating judge heard B. The

investigating judge, the court registrar, and the witnesses were in a

room on the first floor. The Procurator General was in an adjacent

room. The applicant and his lawyer were in a room on the second floor.

The Procurator General and the defence could follow the examinations

on TV-monitors. Video recordings were made of the examinations. The

investigating judge interrupted each of the examinations to give the

defence the opportunity to put additional questions to the witnesses.

     In addition to B. and C., the investigating judge, on 13 and

14 January 1992, also heard Mr. H.W., Mr. H. and Ms. S.H. The

investigating judge decided not to hear B.'s sister D. as the defence

had no questions for her.

     On 25 February 1992, the Court of Appeal resumed its examination

of the case. 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 pending before the Court of Appeal. The Court of

Appeal dealt with all 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. The applicant denied

the charges against him.

     On 25 February 1992, the Court of Appeal heard the applicant who

denied the charges against him. The Court of Appeal further heard the

police officers K. and M., who had been involved in the examinations

of A., B. and C. and/or the interrogations of some of the accused in

the related cases.

     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. On the same day,

the Court of Appeal viewed parts of the video recordings of the

examination of B. by the investigating judge on 13 January 1992.

Subsequently, the applicant filed objections to the way in which the

investigating judge had carried out the examinations of the witnesses

on 13 and 14 January 1992. He objected, inter alia, to the fact that

the questions had to be submitted in writing beforehand, that not all

the questions he had submitted had been put to the witnesses, and that

the defence had not been given the opportunity to question the

witnesses directly. He also alleged that the investigating judge had

played too active a role when questioning B. The applicant argued that

as a consequence of these irregularities the prosecution should be

declared inadmissible. If the Court of Appeal should reject the request

to declare the prosecution inadmissible, he requested that B. be heard

before the Court of Appeal.

     The Procurator General objected to a new hearing 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.

     Also on 26 February 1992, the applicant stated that, pending a

court recess, he had seen the Procurator General enter the judge's

chambers via the door in the court room several times and that she

entered the court room together with the three Court of Appeal judges.

He objected to this. The President of the Court of Appeal informed the

applicant that it is customary that the Procurator General and the

members of the Court of Appeal enter and leave the court room together

and through the same door. The President further informed the applicant

that no deliberations had taken place in the presence of the Procurator

General. The Court of Appeal subsequently adjourned its further

examination 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. It

further informed the defence that it would hear B. in camera and in the

applicant's absence. The latter would be enabled to follow the

examination via a TV-monitor and to put questions to her.

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

informed the parties that it intended to hear B. in camera and in the

applicant's absence. The Procurator General stated that she had no

objections. The applicant's lawyer objected to B. being heard in

camera.

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

in camera in the absence of the applicant, holding, inter alia:

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

     camera, 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 immediately 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...."

     The defence requested the Court of Appeal to add the statements

made by A., B. and C. on the same day in the related proceedings to the

applicant's case-file. The Court of Appeal granted the request, but on

the explicit understanding that these statements were not to be

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

     The Court of Appeal subsequently proceeded with its examination

of B. She 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 accused in the related cases, Mr. P. and

a number of court officers (parketpolitie) were present in the court

room. They too could follow the examinations on the TV-monitor.

     The Court of Appeal put a number of questions to B., which had

been submitted beforehand in writing by the defence. One of the

questions put to her by the defence concerned the punishment she

received from the applicant and other persons immediately after she had

filed a criminal complaint with the police against Mr. W.

     The Court of Appeal gave the applicant's lawyer and the

Procurator General the opportunity to put an additional question to B.

The examination was also interrupted in order to allow the applicant's

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

questions to B. The applicant availed himself of this opportunity. The

defence put in total nine questions to B., of which she refused to

answer two.

     According to the procès-verbal, those questions and her answers

were as follows:

     "Hoe vonden de verkrachtingen plaats?

     Daar kan ik niet meer op antwoorden. Ik wil niet meer over

     allerlei details verklaren.

     Kunt u precies vertellen wat gebeurde bij de verkrachtingen

     door Willem Kremers?

     Ik weet nog wel wat er gebeurd is bij de verkrachtingen,

     doch ik kan hierover niet meer verklaren."

     "How did the rapes take place?

     I cannot answer that anymore. I do not want to make any

     statement about all sorts of details anymore.

     Can you recount precisely what happened during the rapes by

     Willem Kremers?

     I still know what happened during the rapes, but I can no

     more declare anything about this."

     The Procurator General put two questions to her, which she

answered.

     After having put the applicant's additional questions to B., 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 the applicant a summary of what B. had stated. The

applicant stated that he was aware of the contents of B.'s statement.

     The doors of the court room were subsequently opened and the

Court of Appeal adjourned its examination until 3 June 1992 ordering

the applicant, his lawyer and Mr. P to be present on that day.

     On 3 June 1992, the Court of Appeal heard the applicant's

daughter, who, together with others, had occasionally gone swimming

with A., B. and C. in the past. It also heard the applicant's son.

After they had been heard before the Court of Appeal, the defence

requested that the statements made that same day by the witnesses

before the Court of Appeal in the related criminal proceedings be added

to the applicant's case-file. Having deliberated, the Court of Appeal

decided to add the statements by S.H., S.-H., N.T., D.L., as made in

the other cases, to the applicant's case-file, but on the explicit

understanding that these statements were not to be considered as having

been made in the applicant's case.

     The applicant subsequently requested a new hearing of B. before

the Court of Appeal in order to confront her with the statements made

by the witnesses on 3 June 1992. 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 further hearing of B.,

arguing that the interest of the victims in not being confronted any

longer with traumatic events spoke against such a hearing and that a

new hearing would be psychologically irresponsible. 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 or Appeal was aware of the opinion and arguments of the

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

request to hear B. again, 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. again. He stated

that he had seen the examinations of A., B. and C. on 2 June 1992 via

a TV-monitor and that his first impression was that the examinations

were very burdensome, painful and emotional for them, that it happened

repeatedly that they had been unable to answer a question because of

their emotions, and that the emotions appeared to be genuine.

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

Mr. A.H.M.M. Romviel, mentioned that in April 1988, the alleged victims

had reported to the police that Mr. W., at that time a friend of their

mother, had raped them without, at that time, complaining of having

been raped by other family members. Mr. Romviel asked Mr. P. whether

this situation occurs frequently.

     On 5 June 1992, the applicant's lawyer stated to the Court of

Appeal that only the day before he had become acquainted with the case-

file on the criminal proceedings against Mr. W. following a criminal

complaint for rape against Mr. W. filed by B. and C. in 1988. The

applicant's lawyer submitted that this file contains two medical

certificates concerning B. and C., from which it appears that, in

April 1988, C.'s hymen appeared not to be ruptured. The applicant's

lawyer further submitted that, in the case against Mr. W., B. had

stated to the police that she supposed that her hymen had been ruptured

by Mr. W. when he raped her at the end of 1987. The police officer M.

had been involved in the proceedings against Mr. W.

     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., the gynaecologist who

had examined B. and C. in April 1988 as an expert witness. The Court

of Appeal heard Dr. H.-K. later that day.

     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 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 applicant's request to appoint other

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

decided to summon 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. Professor H. stated that, having regard to the inspection method

used by Dr. H.-K. in this medical examination, the latter's finding

that C.'s hymen appeared to have been intact was not necessarily

correct. The applicant was given the opportunity to put questions to

both witnesses.

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

heard another gynaecologist, Professor E., who 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

general plea in all cases presented by Mr. P.R. Wery and a final plea

concerning the applicant's case in particular, presented by the

applicant's lawyer Mr. A.H.H.M. Romviel.

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

declared inadmissible for a number of reasons. It argued, inter alia,

that the charges against the applicant were too vague, 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. and C. of 27 April 1988, and that the

public prosecutor had ordered the re-opening of the police

investigation during the trial before the Regional Court without

informing the defence or the Regional Court, and that the results of

the re-opened police investigation were added to his case-file by the

Procurator General in November 1991, after the applicant had lodged his

appeal. 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. It also complained that the rights of the defence, as regards

the hearing 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 and had allowed B. not to answer certain questions. The

defence also argued that the hearing of B. was not completed, as the

defence had not waived its right to hear her. The defence requested the

Court of Appeal, inter alia, to hear B. again in connection with the

information which had appeared from Mr. W.'s case-file.

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

Regional Court's judgment of 2 April 1991, convicted the applicant of

multiple rape of B., acquitted him of the remaining charges and

sentenced him to eight months' imprisonment. The Court of Appeal used

in evidence statements made by B. before the police, the investigating

judge and the Court of Appeal, statements by the applicant before the

police and the Court of Appeal and statements before the police by two

other members of B.'s family.

     The Court of Appeal held that the charges against the applicant

were in conformity with the requirements of Section 261 of the Code of

Criminal Procedure (Wetboek van Strafvordering) and that the methods

used in the police investigations had not been incorrect and that it

had not been shown to be 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 (page 2) and in the procès-verbal of the

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

     (added to the ... procès-verbal mentioned above, page 43)

     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 considered, inter alia:

     "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."

     As regards the re-opening of the police investigation, the Court

of Appeal considered:

     "The court rejects this argument. The re-opened [police]

     investigation, which resulted in the second procès-verbal

     with annexes, took place because [A., B. and C.] made new

     statements, causing suspicions to arise against persons

     who, up to that moment, had not been suspected of ...

     involvement in the facts at issue. This second [police]

     investigation was, therefore, not a further investigation

     in respect of the suspects who, at that moment, had already

     been summoned, but was directed against new suspects. This

     does not alter the fact that during the re-opened police

     investigation information came forward concerning the

     suspects who had already been summoned at that moment.

     It was open to the Procurator General, pursuant to Section

     414 of the Code of Criminal Procedure, which gives the

     suspect and his lawyer the same competence, to add new

     documents to the case-file pending the appeal proceedings."

     As regards the applicant's complaint that he was not given an

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

considered:

     "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

     hearing had to be interrupted several times because the

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

     of replying 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 room

     after she had been heard, or after a recess of the hearing

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

     could be subjected again to questioning. 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 it was not allowed to put a question, or insofar

     as the witnesses were 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 youth, which could

     not be done in view of the emotional state of the witness."

     As regards the applicant's argument that he was not 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. The Court found itself

sufficiently informed and considered that the necessity or desirability

of hearing further witnesses had not been made plausible.

     The applicant subsequently lodged an appeal in cassation with the

Supreme Court (Hoge Raad). He complained that the Court of Appeal had

unjustly allowed B., after she had been heard on 2 June 1992, to leave

the court room without instructing her to be present again at the next

hearing, as she had not yet been formally excused as a witness by the

defence and the prosecution, that the Court of Appeal had unjustly

rejected the request by the defence to put additional questions to B.

after she had been heard on 2 June 1992. He further reiterated his

complaint about the re-opening of the police investigation, arguing

that the Court of Appeal had insufficiently reasoned its rejection of

this complaint.

     The Advocate General (Advocaat-Generaal) to the Supreme Court

submitted his written conclusions on 27 April 1993. These conclusions

were transmitted to the applicant, who replied to them on 3 June 1993.

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

appeal in cassation. It accepted the grounds on which the Court of

Appeal had rejected the applicant's complaints about the re-opening of

the police investigation.

     As regards the applicant's complaints in respect of the

examination of B., the Supreme Court considered, inter alia, that on

2 June 1992 the applicant had not objected when B. did not appear in

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

a separate room. Moreover, the applicant had not objected when the

President of the Court of Appeal gave the names of the people who had

to be present again on 3 June 1992 without mentioning B.'s name. The

Supreme Court did not find that when hearing B. the Court of Appeal had

violated the relevant Sections of the Code of Criminal Procedure and

accepted the reasons the Court of Appeal gave for its decision to

refuse to summon B. for a further hearing.

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 police withheld crucial

information, in particular the medical reports of 27 April 1988 and

B.'s and C.'s statements made to the police in the case against Mr. W.

3.   The applicant complains that his defence rights were unduly

restricted during the hearing of B. on 2 June 1992, as she was not

required to answer emotionally burdensome questions.

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

Procedure B., after being heard, 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.

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

B. for a second time and to hear other witnesses, although new relevant

facts had come to light, thereby depriving the defence of the

possibility to question these witnesses about the new facts.

6.   The applicant complains that the Court of Appeal used the

statements of B. 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 she had been heard.

7.   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.

     The applicant invokes Article 6 of the Convention.

THE LAW

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

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

as follows:

     "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 ...

     2.    ...

     3.    Everyone charged with a criminal offence has the following

     minimum rights:

     ...

           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.   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).

3.   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 observes that the Regional Court rendered its

judgment in the applicant's case on 2 April 1991, against which an

appeal was filed by the prosecution authorities. In accordance with

Section 414 of the Code of Criminal Procedure, which allows both the

Procurator General and the defence to add new documents to the case-

file during proceedings on appeal, the results of the re-opened police

investigation were added to the applicant's case-file in November 1991.

     The Commission further notes that the Court of Appeal started its

examination of the applicant's case on 24 December 1991. On that day,

in accordance with the applicant's request, it referred the case to the

investigating judge in order to have a number of witnesses heard and

adjourned its further examination until 25 February 1992. Between

25 February and 19 June 1992, the Court of Appeal examined the case in

the course of nine hearings and pronounced its judgment on 3 July 1992.

     The Commission finds, as regards the addition of the results of

the re-opened police investigation to the applicant's case-file, that

the defence has been provided with ample time and opportunity to study

and to challenge these additional means of evidence and does not find,

on this point, that the defence was placed at a substantial

disadvantage vis-à-vis the prosecuting authorities.

     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.

4.   The applicant further complains that the police withheld crucial

information, in particular Dr. H.-K.'s medical reports of 27 April 1988

and the statements B. and C. made to the police in the case against

Mr. W.

     The Commission recalls that the domestic courts rejected this

complaint for lack of foundation. The Commission notes that, after the

defence had realised the possible relevance of the facts of the case

of Mr. W., it requested the Court of Appeal to add Mr. W.'s case-file

to the applicant's file, a request which was granted.

     The Commission further notes that, in the course of the last four

hearings before the Court of Appeal, the contents and relevance of the

material contained in Mr. W.'s case-file formed the subject of an

elaborate examination before the Court of Appeal, which included the

hearing of three gynaecologists.

     In these circumstances the Commission finds that on this point

there is no indication that the proceedings were not in conformity with

the requirements of Article 6 (Art. 6) 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.

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

to answer emotionally burdensome questions, and that therefore he was

unduly restricted in the exercise of his defence rights as regards her

questioning before the Court of Appeal.

     The Commission has 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 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).

     The Commission finds that, in exceptional circumstances, there

may be reasons for allowing a witness not to answer certain questions.

     The Commission notes that the Court of Appeal heard B., who had

already been questioned a number of times on her allegations against

the applicant, at the explicit request of the defence. The Procurator

General had objected to her being heard before the Court of Appeal in

view of the mental stress this would entail for her.

     The Commission further notes that of the nine questions the

defence put to B., she refused to answer two. These questions concerned

factual details of the alleged rapes, which apparently had already been

answered by her at various stages of the proceedings. The Commission

finally notes the Court of Appeal's statement in its judgment of

3 July 1992 that the questioning of B. had to be interrupted several

times because, as a result of intense emotions, she was not capable of

replying to the questions put to her and that, at certain moments, she

lapsed into fits of crying.

     In these circumstances the Commission cannot find that it was

arbitrary or unreasonable to allow B. not to answer certain questions

in view of her emotional state and the fact that she was in fact being

asked to repeat factual details which she had already given previously.

The Commission finds that the defence was provided with sufficient

opportunity to question B. on 2 June 1992 and cannot find that the

applicant was substantially affected in the exercise of his defence

rights in B.'s examination before the Court of Appeal.

     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.

6.   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 her examination 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 B. was

heard on 2 June 1992. He complains in particular 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 B.'s

statements in the light of the facts which had appeared after she was

heard before the Court of Appeal.

     Insofar as the applicant complains that the Court of Appeal

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

following her examination on 2 June 1992, 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. 21283/93, Dec. 5.4.94, D.R. 77, pp. 81 and 88).

     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 before the

Court of Appeal.

     The Commission notes that, when B. was heard, the applicant's

lawyer was provided with the possibility to put additional questions

to her and that the questioning was interrupted in order to enable the

applicant's lawyer to consult the applicant to verify whether the

latter wished to put additional questions to B., which both the lawyer

and the applicant did.

     The Commission does not find it established that, when on

2 June 1992 the Court of Appeal returned to the court room, the defence

still had any questions to put 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 being heard, did not return to the court room and was

not told to be present at the next hearing of the Court of Appeal

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; 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. 5), notes

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

had the impression that the hearing 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.

It also had regard to statements by the applicant and two other family

members.

     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.

7.   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 any

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 11 and 14 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.

     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)