Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23931/94

by Laserbert Mohammed Olayinka BAKARE

against Belgium

The European Commission of Human Rights (Second Chamber) sitting

in private on 6 April 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 8 March 1994 by

Laserbert Mohammed Olayinka BAKARE against Belgium and registered on

20 April 1994 under file No. 23931/94;

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 citizen of the United Kingdom, born in 1964,

and at present serving a prison sentence in Belgium. Before the

Commission he is represented by Mr. M. Wallace, a lawyer practising in

Aalst (Belgium), and by Mr. Y. Werbrouck, a lawyer practising in

Roeselaere (Belgium).

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

summarised as follows.

On 8 April 1992 the Belgian police observed a delivery of

narcotics, i.e. 10 kilogrammes of "speed" and 6,5 kilogrammes of "XTC".

The applicant and five other persons, amongst whom H.H., were suspected

of having been involved in this drug traffic.

On 22 May 1992 the Belgian authorities issued a warrant for the

applicant's arrest. On 4 September 1992 the Judges Chamber of the Court

of First Instance (Raadkamer van de Rechtbank van Eerste Aanleg) of

Brugge committed the applicant and four other co-suspects for trial

before the Correctional Court of First Instance (Correctionele

Rechtbank van Eerste Aanleg) of Brugge. They were charged with

narcotics offences and membership of a criminal organisation.

On 15 October 1992, following adversarial proceedings, the co-

suspect H.H. was convicted and sentenced by the Correctional Court of

First Instance in respect of the drug traffic at issue. On

16 February 1993 the Court of Appeal (Hof van Beroep), following

proceedings in absentia, rejected his appeal and upheld the judgment

of 15 October 1992. On 11 March 1993 H.H. filed an objection (verzet)

against his conviction in absentia.

The applicant was arrested in Germany and, on 10 February 1993,

extradited to Belgium. He alleges that, already while being detained

and questioned in Germany in connection with the drug traffic at issue,

he unsuccessfully requested the examination of certain witnesses in

order to prove that he was in England when the facts with which he was

charged had taken place.

The applicant's appeal against his committal for trial of

4 September 1992 was rejected by the Indictment Chamber of the Court

of Appeal (Kamer van Inbeschuldigingstelling van het Hof van Beroep)

on 23 February 1993.

Following adversarial proceedings in which he was represented by

a lawyer, the Correctional Court of First Instance, on 15 March 1993,

convicted the applicant of the charges against him and sentenced him

to eight years' imprisonment and a fine. The Court rejected as

unfounded, without giving any reasons, the applicant's request to

examine Mr. and Mrs. M. and the co-accused R.A. Both the applicant and

the prosecution filed an appeal against this judgment.

Following adversarial proceedings in which it had joined the

cases of H.H. - whose objection of 11 March 1993 had been declared

admissible - and the applicant, who were both represented by lawyers,

the Court of Appeal (Hof van Beroep) at Gent, in its judgment of

29 June 1993, upheld the judgment of 15 March 1993 in the case of the

applicant and the judgment of 15 October 1992 in the case of H.H.

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

further witnesses, holding that it was sufficiently informed as regards

the facts and the applicant's person. It further held that an

examination of further witnesses, more than one year after the facts

of the case, would not be possible in an objective way and was thus not

useful ("het horen van bijkomende getuigen, meer dan een jaar na de

feiten, kan dan ook niet meer objektief gebeuren en is derhalve niet

dienend").

As regards the substance of both cases, the Court of Appeal noted

that the police had observed the entire narcotics transaction,

including the presence of the applicant and the co-suspect H.H. in a

grey Renault 18 with Dutch number plates.

It also noted the full and detailed confession of the co-suspect

R.A., concerning, inter alia, the role of the applicant and H.H., whom

he had both formally identified, in the drug traffic and that R.A.'s

statement fully coincided with the observations made by the police. As

regards the statements of the witnesses examined at the request of

H.H., the Court of Appeal held:

[Dutch]

"Het alibi van H.H. bij dewelke hij op 8.4.1992 in

Nederland verbleef werd door de door hem opgeroepen

getuigen (...) niet bewezen. Het is opvallend dat omtrent

het tijdsgebruik op 8.4.1992 (...) alle ondervraagde

personen een nogal uiteenlopende versie verstrekken (...).

Vooral het tijdsverloop van 8.4.1992 en de aan de dag

gelegde aktiviteiten (...) staan in schril contrast tot wat

H.H. heeft verklaard en de verklaringen van de andere

getuigen.

Bovendien kunnen deze getuigenissen, afgelegd door de

familie en goede vrienden, 8 maanden na de feiten en meer

dan een maand na het eerste vonnis niet meer als objektief

worden aanzien en kunnen zij in ieder geval niet opwegen

tegen hoger vermelde en vaststaande en objectieve

gegevens."

[Translation]

"The alibi of H.H. according to which he was in the

Netherlands on 8.4.1992 has not been proven by the

witnesses summoned by him (...). It is striking that as

regards the use of time on 8.4.1992 (...) all persons

questioned provide a rather divergent version (...). In

particular the passage of time of 8.4.1992 and the

activities displayed (...) sharply contrast with what H.H.

has declared and the statements of the other witnesses.

In addition these witness statements, made by the family

and good friends, 8 months after the facts and more than a

month after the first judgment, can no longer be regarded

as objective and in any event they cannot counterbalance

the above mentioned established and objective data."

As regards the alibi submitted by the applicant, the Court of

Appeal held:

[Dutch]

"Het alibi van Bakare bij dewelke hij op 8.4.1992 in

Engeland vertoefde en hij om 17 uur zich zou hebben

aangeboden bij de werkloosheidsdienst "Tooting Employment

Agency", wordt volledig tegengesproken door het bericht van

Interpol dd. 13.4.1993.

Bovendien is er in gans het dossier geen enkele aanwijzing

(..) dat een zekere M. in de wagen Renault zou plaats

genomen hebben in de plaats van Bakare."

[Translation]

"The alibi of Bakare according to which he was in England

on 8.4.1992 and would have presented himself at 17 hours at

the unemployment service "Tooting Employment Agency", is

fully refuted by the Interpol report dated 13.4.1993.

In addition, in the entire file there is not a single

indication (..) that a certain M. would have taken a seat

in the Renault car in the place of Bakare."

As regards certain statements by co-accused the Court of Appeal

concluded that:

[Dutch]

"Rekening houdend met al deze objektieve gegevens, kan dan

ook geen rekening worden gehouden met de gewijzigde

verklaringen van [A.]S. en [R.]A., die in schril contrast

staan met de eerder gedane vaststellingen en diverse

verklaringen afgelegd voor de aanhouding van H.H. en

Bakare."

[Translation]

"Taking all these objective data into account, no account

can be taken of the altered statements of [A.]S. and [R.]A,

which sharply contrast with the conclusions already reached

and several statements made before the apprehension of H.H.

and Bakare."

The applicant's subsequent appeal in cassation was rejected on

12 October 1993 by the Court of Cassation (Hof van Cassatie). The Court

of Cassation considered his complaint under Article 6 paras. 1 and 3

(d) of the Convention that the Court of Appeal had rejected his request

to hear further witnesses in connection with his alibi, whereas it had

granted the request of H.H. to examine witnesses in connection with the

latter's alibi, but it held that Article 6 of the Convention had not

been violated by the mere fact that the Court of Appeal had not found

that a hearing of these witnesses was necessary for its determination

of the applicant's case and that, moreover, the applicant had submitted

written statements by these witnesses to the Court of Appeal.

The Court of Cassation also rejected the applicant's complaint

under Article 14 of the Convention that he had been discriminated

against as the Court of Appeal had granted H.H.'s request to hear

witnesses in connection with his alibi, eight months after the facts

had occurred, whereas it had rejected the applicant's request to hear

certain witnesses in connection with his alibi.

COMPLAINTS

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

Convention that the domestic courts' refusal to examine witnesses, who

could confirm that when the facts with which he was charged took place

he was in fact in England, deprived him of a fair trial.

2. The applicant complains under Article 14 in conjunction with

Article 6 of the Convention that he was discriminated against by the

Court of Appeal's decision to grant H.H.'s request to examine witnesses

confirming H.H.'s alibi, whereas the applicant's request to hear

witnesses, who could confirm his alibi, was rejected by the Court of

Appeal.

THE LAW

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

(Art. 6-1, 6-3-d) of the Convention that the domestic courts' refusal

to examine certain witnesses for the defence deprived him of a fair

trial.

Article 6 (Art. 6) of the Convention, insofar as relevant,

provides:

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

him, everyone is entitled to a fair (...) hearing (...).

(...)

3. Everyone charged with a criminal offence has the following

minimum rights:

(...)

d. to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him;

(...)."

As the guarantees in para. 3 of Article 6 (Art. 6-3) of the

Convention are specific aspects of the right to a fair trial set forth

in para. 1, the Commission will consider the complaint under the two

provisions taken together (cf. Eur. Court H.R., Asch judgment of

26 April 1991, Series A no. 203, p. 10, para. 25).

The Commission recalls that Article 6 para. 3 (d)

(Art. 6-3-d) of the Convention does not give an accused an unlimited

right to obtain the examination of witnesses. It is in principle within

the discretionary power of domestic courts to establish whether the

hearing of witnesses is likely to be of assistance for discovering the

truth and, if not, to refuse the calling of such witnesses (cf. No.

8231/78, Dec. 6.3.82, D.R. 28 p. 5; No. 10486/83, Dec. 9.10.86,

D.R. 49 p. 86; and Eur. Court H.R., Bricmont judgment of 7 July 1989,

Series A no. 158, p. 31, para. 89).

The Commission further recalls that the taking of evidence is

governed primarily by the rules of domestic law and that it is in

principle for the domestic courts to assess the evidence before them.

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 declarations of the witness

involved (cf. No. 8414/78, Dec. 4.7.79, D.R. 17 p. 231). The task of

the Convention organs in this respect is to ascertain whether the

proceedings considered as a whole, including the way in which the

evidence was taken, were fair.

The Commission notes that the applicant, who was represented by

a lawyer, was provided with ample opportunity to convince the trial

courts of the necessity to have certain persons examined as witnesses

in connection with his alibi. Moreover, the applicant did in fact

submit written statements of those persons to the Court of Appeal. The

Court, however, found the applicant's alleged alibi fully refuted by

an Interpol report and the other evidence against him.

Noting that the applicant's conviction was based, inter alia, on

observations made by the police and the statement of the co-suspect

R.A., and that it has not appeared nor been argued that the applicant

was placed at a disadvantage vis-à-vis the prosecution as regards the

examination of the witnesses examined in the course of the adversarial

criminal proceedings against him or that he was given insufficient

opportunities to challenge the evidence against him, the Commission

cannot find that the refusal of his request at the appeal stage to have

certain witnesses examined in connection with his alleged whereabouts

on 8 April 1992 deprived the applicant of a fair hearing within the

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

It follows that this complaint is manifestly ill-founded within

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

2. The applicant further complains that the Court of Appeal's

refusal to hear witnesses in connection with his alibi was contrary to

Article 14 in conjunction with Article 6 (Art. 14+6) of the Convention

as a similar request by his co-accused H.H. was granted.

Article 14 (Art. 14) of the Convention reads:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The applicant complains that he has been discriminated against

in the enjoyment of his right to a fair trial guaranteed by Article 6

(Art. 6) of the Convention in that he was treated differently from a

co-accused. This complaint falls within the scope of Article 14

(Art. 14) of the Convention.

The Commission, recalling the domestic trial courts'

discretionary power as regards the question whether the hearing of

witnesses is likely to be of assistance for discovering the truth and,

if not, to refuse the calling of such witnesses, finds that the

domestic trial courts were in the best position to evaluate whether in

criminal proceedings against the applicant it was required to examine

the witnesses proposed in order to establish the truth.

The Commission does not find it established that the situation

of H.H., with whom the applicant compares himself, was analogous to

that of the applicant himself insofar as their alleged whereabouts on

8 April 1992 are concerned.

In these circumstances, the Commission cannot find that in the

criminal proceedings against him the applicant has been subjected to

discriminatory treatment contrary to Article 14 (Art. 14) of the

Convention.

It follows that also this part of the application 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

(K. ROGGE) (H. DANELIUS)

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BAKARE v. BELGIUM

BAKARE v. BELGIUM

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