Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22922/93

by Ahmet COLAK

against the Netherlands

The European Commission of Human Rights sitting in private on

27 February 1995, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

G. JÖRUNDSSON

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

E. KONSTANTINOV

G. RESS

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 4 August 1993 by

Ahmet Colak against the Netherlands and registered on 16 November 1993

under file No. 22922/93;

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

a. The particular circumstances of the case

The applicant is a Turkish national, born in 1967, and resides

at Deventer, the Netherlands. Before the Commission he is represented

by Mr. F. Leemans, a lawyer practising in Apeldoorn, the Netherlands.

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

summarised as follows.

On 9 July 1990, an armed robbery took place in Apeldoorn. On

11 and 12 July 1990, a police officer showed a set of twelve

photographs of twelve different men, among whom the applicant, to four

witnesses. All four witnesses identified the applicant as the

perpetrator of the armed robbery.

On 15 July 1990, the applicant was arrested and subsequently

detained on remand on suspicion of having committed the armed robbery.

He was released on an unspecified date in September 1990.

On 19 July 1990, S.C., a friend of the applicant, was questioned

by the police as a witness. The procès-verbal of this questioning was

not added to the case-file until the beginning of September 1990.

In or around October 1990, the preliminary judicial investigation

(gerechtelijk vooronderzoek) against the applicant was closed.

By summons of 21 December 1990, the applicant was ordered to

appear before the Regional Court (Arrondissementsrechtbank) of Zutphen

on 13 February 1991 on charges of extortion under the threat of

violence.

By summons of 19 January 1991, the applicant was ordered to

appear before the Regional Court of Zutphen on 13 February 1991 on

charges of assault on a police officer in the exercise of his

functions.

On 13 February 1991, the Regional Court tried the armed robbery

case and the case concerning the assault on a police officer jointly.

The applicant argued, inter alia, that the photo identifications had

not been carried out in conformity with the procedure laid down in a

Report of 14 July 1989 on "Identification of persons by eye-witnesses"

("Identificatie van personen door ooggetuigen"), of the Criminal

Investigation Advisory Commission (Recherche Advies Commissie). He also

complained of the late transmission of the procès-verbal of 19 July

1990. On 27 February 1991, the Regional Court convicted the applicant

of extortion and of assault on a police officer. It sentenced him to

fourteen months' imprisonment, six months of which were suspended.

A copy of the Regional Court's judgment was sent to the

applicant. Page 6 of this copy stated "This judgment does not contain

the means of evidence." ("In dit vonnis zijn geen bewijsmiddelen

opgenomen.").

On 11 March 1991, the applicant lodged an appeal against the

Regional Court's judgment with the Court of Appeal (Gerechtshof) of

Arnhem. On 25 March 1991, his lawyer submitted a memorial containing

the applicant's grounds of appeal to the Court of Appeal.

A few days before the Court of Appeal was scheduled to examine

the case, the applicant's lawyer consulted the case-file in which he

then found a copy of the Regional Court's judgment containing also the

means of evidence.

The Court of Appeal examined the case on 17 January 1992. It had

at its disposal the set of twelve photographs which had been shown to

the witnesses. The applicant complained, inter alia, that the copy of

the Regional Court's judgment he had received did not contain the means

of evidence on which his conviction had been based, and that the photo

identification had not been carried out in conformity with the

procedure laid down in the Report of 14 July 1989 on "Identification

of persons by eye-witnesses" of the Criminal Investigation Advisory

Commission, and could thus not be admitted as evidence. The applicant

also complained of the late transmission of the procès-verbal of

19 July 1990.

On 31 January 1992, the Court of Appeal quashed the Regional

Court's judgment, acquitted the applicant of the assault on a police

officer, convicted him of extortion and sentenced him to two years'

imprisonment. The Court of Appeal observed, inter alia, that it had

found a complete version of the Regional Court's judgment in the case-

file. The Court of Appeal rejected the complaints about the photo

identification, holding that the Report of 14 July 1989 had no force

of law and that the assessment of the evidence lies within the judicial

discretion. It did not deal with the complaint about the late

transmission of the procès-verbal of 19 July 1990.

The applicant requested a copy of the Court of Appeal's judgment.

He was again provided with a judgment which did not contain the means

of evidence on which his conviction had been based.

Within 14 days of the judgment of the Court of Appeal, the

applicant lodged an appeal in cassation with the Supreme Court (Hoge

Raad).

On 9 November 1992, the applicant submitted the grounds for his

appeal in cassation (middelen van cassatie). At that time he had

obtained a complete version of the Court of Appeal's judgment. The

applicant complained that the copies he had been given of the judgments

of the Regional Court and the Court of Appeal did not contain the means

of evidence on which his conviction had been based. He further

complained of the way in which the photo identification had been

carried out and of the late transmission of the procès-verbal of

19 July 1990. He invoked Article 6 of the Convention.

On 9 February 1993, the Supreme Court dismissed the applicant's

appeal in cassation.

b. Relevant domestic law and practice

Pursuant to Sections 30 - 34 and 51 of the Code of Criminal

Procedure (Wetboek van Strafvordering), the accused and his lawyer have

the right of access to the case-file. During the police investigation

or during a preliminary judicial investigation, this right can be

subject to limitations. However, once the preliminary judicial

investigation is closed or once the accused is summoned to the court

hearing, the accused and his lawyer have full access to the case-file.

Sections 30 - 34 and 51 are applicable at all stages of the criminal

proceedings.

Pursuant to Section 359 para. 1 of the Code of Criminal

Procedure, a judgment must contain the means of evidence on which a

conviction is based. However, in cases where the accused is convicted,

it is not unusual that initially a so-called "head-tail-judgment" (kop-

staart-vonnis) is drafted. Such a judgment does not account for the

means of evidence on which the conviction is based. A complete version

of the judgment is not prepared unless the convicted person lodges an

appeal against the judgment. In that case the means of evidence are

included in the judgment and the case-file, including the complete

judgment, is transmitted to the appeal court.

When the appeal court examines the case, it should have a

complete version of the judgment of the lower court. If this is not the

case, the appeal court must quash the judgment of the lower court on

formal grounds.

The appeal proceedings before the Court of Appeal offer a full

new hearing. The accused, who has lodged the appeal, can submit his

objections and possible additional objections to the judgment of the

Regional Court in writing, both before and during the hearing on

appeal. He can also submit additional objections orally in the course

of the hearing on appeal until the formal closure of the appeal court's

examination.

The use of "head-tail judgments" also occurs at the level of the

Court of Appeal.

The accused who has lodged an appeal in cassation, can submit

grounds for his appeal in cassation in writing until the day the

Supreme Court is scheduled to hear the case, and/or orally in the

course of the hearing before the Supreme Court (Sections 433 para. 2

and 439 of the Code of Criminal Procedure) provided that these grounds

are also set out in a written document which must be submitted to the

Supreme Court before the closure of its hearing.

COMPLAINTS

The applicant complains under Article 6 of the Convention that

the judgments of the Regional Court and the Court of Appeal he was

provided with, did not contain the means of evidence on which his

conviction was based.

The applicant further complains under Article 6 of the Convention

of the late transmission of the procès-verbal of 19 July 1990, the

contents of which were exculpating for him.

The applicant finally complains under Article 6 of the Convention

that the photo identification was not carried out in conformity with

the procedure laid down in a Report of 14 July 1989 on "Identification

of persons by eye-witnesses" of the Criminal Investigation Advisory

Commission.

THE LAW

1. The applicant complains that in the determination of the criminal

charges against him he did not receive a fair hearing as required by

Article 6 (Art. 6) of the Convention.

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

as follows:

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

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

(...) tribunal (...).

(...)

3. Everyone charged with a criminal offence has the following

minimum rights:

(...)

b. to have adequate time and facilities for the

preparation of his defence;

(...)."

As regards the applicant's first complaint that he did not have

a fair trial because the copies of the judgments of the Regional Court

and the Court of Appeal which were given to him did not contain the

means of evidence on which his conviction was based, the Commission

recalls that national courts must indicate with sufficient clarity the

grounds on which they base their decision (Eur. Court H.R.,

Hadjianastassiou judgment of 16 December 1992, Series A no. 252,

p. 16 para. 33).

The question whether or not a trial as a whole is rendered unfair

because the means of evidence on which a conviction is based are not

immediately included in the written judgment, but only after the

sentenced person has lodged an appeal, must be examined in the light

of the particular circumstances of each case.

In the present case the Commission observes that the applicant

and his lawyer, as from the closure of the preliminary judicial

investigation against the applicant, had full access to the case-file.

It also appears that the applicant and his lawyer were aware of the

complete versions of the judgments of the Regional Court and the Court

of Appeal before the applicant's appeals were examined by the higher

courts. The applicant also had the opportunity, if he so wished, to add

new grounds of appeal, or new grounds of cassation, if he had found

this appropriate after becoming acquainted with those parts of the

judgments which had not immediately been communicated to him.

The Commission considers that a fair appeals procedure normally

requires that a sentenced person should be aware of the full contents

of the judgment by which he was convicted and sentenced, at the time

when he decides whether or not to lodge an appeal against the judgment.

However, in the present case what was missing from the judgments which

were communicated to the applicant was essentially a factual summary

of declarations by witnesses and not any assessments by the courts.

Moreover, the applicant became acquainted with the Regional Court's and

the Court of Appeal's complete judgments at a time when he could still

present supplementary grounds of appeal, or grounds of cassation

respectively. It cannot be considered, therefore, that the procedure

which was applied was prejudicial to his defence or otherwise made the

proceedings unfair.

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.

2. As to the applicant's complaint concerning the late transmission

of the procès-verbal of 19 July 1990, the Commission notes that both

the applicant and his lawyer had full access to the case-file as from

the closure of the preliminary judicial investigation and that at the

time of this closure the procès-verbal at issue had been added to the

case-file.

The Commission finds no indication that the late transmission of

this procès-verbal affected the fairness of the criminal proceedings

against the applicant.

This part of the application is, therefore, also manifestly ill-

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

Convention.

3. As to the applicant's complaint that the photo identification

was not in conformity with domestic guidelines, the Commission recalls

that it is for the domestic courts to decide on the admissibility of

the evidence and to evaluate that evidence. The Convention organs' task

is to ascertain whether the proceedings considered as a whole were fair

(Eur. Court H.R., Asch judgment of 26 April 1991, series A no. 203,

p. 10 para. 26).

The Commission notes that the applicant, who was assisted by a

lawyer throughout the domestic proceedings, had ample opportunity to

state his case, and to challenge the identification procedure as well

as the admissibility and probative value of the evidence against him.

It further does not appear from the case-file that the applicant

requested the trial courts to examine the witnesses who had identified

him from the photograph, or the police officer involved in the

identification procedure. Neither does it appear that the applicant

requested the trial courts to hear any other witnesses.

The Commission finds no indication that the criminal proceedings

against the applicant were not in this respect in conformity with the

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

This part of the application must therefore also 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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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COLAK v. THE NETHERLANDS

COLAK v. THE NETHERLANDS

LEXI