AS TO THE ADMISSIBILITY OF

                      Application No. 21034/92

                      by K.C.M.

                      against the Netherlands

     The European Commission of Human Rights sitting in private on

9 January 1995, the following members being present:

           MM.   H. DANELIUS, Acting President

                 C.L. ROZAKIS

                 F. ERMACORA

                 E. BUSUTTIL

                 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.   M. de SALVIA, Deputy 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 26 November 1992

by K.C.M. against the Netherlands and registered on 4 December 1992

under file No. 21034/92;

     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 United Kingdom citizen, born in 1961 in Hong

Kong, and at present serving a prison sentence in the Netherlands.

Before the Commission he is represented by Mrs. G.E.M. Later, a lawyer

practising in The Hague.

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

summarised as follows.

     On 12 January 1990 a summons to be appear on 23 January 1990

before the Regional Court (Arrondissementsrechtbank) of Almelo on

charges of extortion, offences against the Opium Act and participation

in a criminal organisation was served on the applicant in person, who

at that time was detained in a remand centre. The applicant's lawyer

had already been provided with a copy of the summons on

10 January 1990.

     On 23 January 1990 a hearing took place before the Regional

Court. The applicant was present and was assisted by his lawyer and an

interpreter. At the beginning of the hearing, immediately following the

prosecution's introduction of the case, the Regional Court replaced the

interpreter at the request of the applicant, who had stated that he had

difficulties in understanding the interpreter. The applicant had no

difficulties in understanding the second interpreter.

     On 30 January 1990 the Regional Court convicted the applicant of

extortion, importation of drugs and trafficking in drugs and

participation in a criminal organisation and sentenced him to nine

years' imprisonment. Both the applicant and the prosecution filed an

appeal against this judgment with the Court of Appeal (Gerechtshof) of

Arnhem.

     On 13 July 1990, 4 October 1990, 14 November 1990,

24 January 1991 and 21 March 1991 hearings took place before the Court

of Appeal, during which the Court of Appeal examined, inter alia, a

number of witnesses. The defence withdrew its request to hear the

witness A., agreed that the Court would not examine the witness B, and

was provided with the opportunity to examine the witnesses C., D. and

E. before the Court of Appeal.

     At all these hearings the applicant was present and assisted by

his lawyer and an interpreter. In the course of these hearings the

applicant repeatedly stated he had no difficulties in understanding the

interpreters. In his final address to the Court of Appeal the applicant

stated that in the proceedings against him he had been assisted by an

interpreter each time he had appeared before a judge, that he saw no

grounds to doubt the fairness of the trial and that 90% of what the

court had heard from the interpreters was correct.

     On 4 April 1991 the Court of Appeal quashed the judgment of the

Regional Court, convicted the applicant of extortion committed together

with others, importation of drugs and trafficking in drugs and

participation in a criminal organisation and sentenced him to nine

years' imprisonment. When the judgment was pronounced the applicant was

present and assisted by an interpreter.

     The Court of Appeal based its conviction on, inter alia, police

reports, recorded telephone conversations between, inter alia, the

applicant and the co-accused, and statements by the applicant and the

witnesses A., B., C., D. and E.

     The Court of Appeal rejected the applicant's preliminary

objection that the prosecution should be declared inadmissible since

it had brought the case before the same Court of Appeal judges, who in

the cases against the co-accused had already expressed an opinion about

the applicant's involvement in the criminal organisation at issue. It

held in this respect that the mere fact that, in cases against co-

accused, it had expressed an opinion about the applicant's involvement

in the criminal organisation did not mean that it was prejudiced on

this point, since the question whether or not the applicant was guilty

on this point was examined in a separate investigation against him and

the answer to this question further depended on what the applicant

himself and the witnesses for the defence stated before the Court of

Appeal in the applicant's case. The Court of Appeal did not exclude the

possibility that, on the basis of these statements, it would reach a

finding as regards the applicant's involvement in the criminal

organisation which was different from its finding in the other cases.

The Court further held that, given that none of its members had been

involved in the gathering of evidence against the applicant or in any

decisions at the stage preceding the Court of Appeal's examination, the

applicant had no reasonable grounds to question the Court of Appeal's

independence or impartiality, and that even the Court of Appeal's

possible partiality in its present composition would not lead to the

inadmissibility of the prosecution.

     The Court of Appeal also rejected the applicant's complaint that

the summons and the judgment of the Regional Court had not been

translated into a language which the applicant understood, holding that

Article 6 of the Convention requires that an accused must be informed

in a language which he understands and in detail of the nature and

cause of the accusation against him, but does not require that this

must be done in writing. Given that the applicant had been assisted by

an interpreter throughout the criminal proceedings against him,

including the preliminary and subsequent judicial investigation, that

he had stated on several occasions that the interpretation was

satisfactory and that it also appeared from his attitude during his

trial that he was fully aware of the charges against him, the Court of

Appeal considered that the requirement of Article 6 had been complied

with.

     The Court of Appeal also rejected the applicant's complaint that

there was no interpreter when the Regional Court pronounced its

judgment. The Court of Appeal noted that, although the procès-verbal

of the pronouncement of the judgment did not mention whether or not the

applicant was assisted by an interpreter, the applicant had stated that

he had been assisted by an interpreter each time he had appeared before

a judge and that the applicant himself had filed a timely appeal

against this judgment by a declaration in accordance with Section 451a

para. 1 of the Code of Criminal Procedure. In these circumstances the

Court of Appeal did not find it established that no interpreter was

present when the Regional Court pronounced its judgment. It further

held that even if this would have been the case, the applicant had not

been harmed in his defence, as it had sufficiently appeared from the

examination before the Court of Appeal and the applicant's course of

action that he was familiar with the Regional Court's judgment when it

was pronounced and in any event shortly thereafter.

     The applicant's subsequent appeal in cassation to the Supreme

Court (Hoge Raad) was rejected on 26 May 1992.

     Insofar as the applicant complained that important documents such

as the summons and the judgments in his case had not been translated

into a language he understood, the Supreme Court accepted the Court of

Appeal's reasoning.

     As to the applicant's complaint that the Court of Appeal could

not be regarded as impartial, the Supreme Court also accepted the Court

of Appeal's reasoning. It further held that the mere argument submitted

by the applicant that his case had been dealt with by the Court of

Appeal in the same composition as in the cases against a number of co-

accused, where it had found that those co-accused belonged together

with, among others, the applicant to a criminal organisation did not

warrant the conclusion that there were exceptional circumstances

resulting in weighty indications that a judge was prejudiced. According

to the Supreme Court it belonged to the normal statutory task of a

judge to decide on the lawfulness of the proceedings and to determine

whether or not and to what extent an accused was guilty of the offences

he was charged with on the basis of the charges brought against him and

the examination before the trial court, without having regard to his

findings in other cases against other suspects.

COMPLAINTS

     The applicant complains under Article 6 paras. 1 and 2 of the

Convention that the Court of Appeal was partial and prejudiced, as in

the same composition it had already decided the cases against co-

accused in which it had expressed an opinion as to the applicant's

involvement in a criminal organisation.

     The applicant further complains under Article 6 para. 3 (a), (b),

(d) and (e) of the Convention that he was not provided with a written

translation of the summons and the judgment of the Regional Court, that

there was no interpreter when the Regional Court pronounced its

judgment, and that therefore he was not provided with sufficient

facilities to prepare and conduct his defence properly and adequately.

He also complains that he was given insufficient possibilities to

question the witnesses examined before the trial courts.

THE LAW

     The applicant considers that the criminal charges against him

were not determined in accordance with the requirements of Article 6

paras. 1, 2 and 3 (Art. 6-1, 6-2, 6-3) of the Convention. He submits

that the Court of Appeal in the same composition had already decided

the cases against a number of co-accused, in which it had expressed an

opinion as to the applicant's involvement in the criminal organisation

with whose membership those co-accused were charged. He further submits

that he could not properly exercise his defence rights, since he was

not provided with written translations of certain documents, such as

the summons and the judgment of the Regional Court, there was no

interpreter when the Regional Court pronounced its judgment, and he was

not provided with sufficient possibilities to question the witnesses

examined before the trial courts.

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

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

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

     (...) by an independent and impartial tribunal (...).

     (...)

     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;

           c.    to defend himself in person or through legal

     assistance of his own choosing or, if he has not sufficient

     means to pay for legal assistance, to be given it free when

     the interests of justice so require;

           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;

           e.    to have the free assistance of an interpreter if

     he cannot understand or speak the language used in court."

     The Commission first notes that the decision of the Supreme

Court, which was the final decision regarding the subject of the

present application, was given on 26 May 1992, whereas the application

was submitted to the Commission on 26 November 1992. The question could

therefore arise whether the six months rule contained in Article 26

(Art. 26) of the Convention has been complied with by the applicant

(cf. Eur. Court H.R., Oberschlick judgment of 23 May 1991, Series A

no. 204, p. 21, paras 39-40; No. 11662/85, Oberschlick v. Austria,

Comm. Report 14.12.89, Appendix II; and No. 12945/87, Dec. 4.4.90,

D.R. 65, 173).

     The Commission recalls that, according to the Court's case-law

as regards the time-limits under the Convention, the first day of a

time-limit is considered to start on the day following the final

decision, whereas "months" are calculated as calendar months regardless

of their actual duration (cf. Eur. Court H.R., Istituto di Vigilanza

judgment of 22 September 1993, Series A no. 265-C, p. 35, para. 14;

Eur. Court H.R., Figus Milone judgment of 22 September 1993, Series A

no. 265-D, p. 43, para. 14; and, Eur. Court H.R., Goisis judgment of

22 September 1993, Series A no. 265-E., p. 51, para. 19).

     The Commission is of the opinion that the day on which the final

national judgment was rendered forms no part of the six months' time-

limit contained in Article 26 (Art. 26) of the Convention. This time-

limit starts to count on the date following the date on which the final

decision has been pronounced orally in public, or - in cases where it

is not pronounced in public - following the date on which the applicant

or his representative was informed of this final decision. The time-

limit expires six calendar months later.

     The Commission therefore finds that the application cannot be

rejected for having been submitted out of time, since it has been

introduced on the last day within the time-limit contained in Article

26 (Art. 26) of the Convention, i.e. 26 November 1992.

     As regards the substance of the application, the Commission will

examine the complaints under Article 6 paras. 1, 2 and 3

(Art. 6-1+6-2+6-3) taken together, since the guarantees in paras. 2 and

3 of Article 6 (Art. 6-2, 6-3) represent constituent elements of the

general concept of a fair trial set forth in para. 1 (Art. 6-1) of this

provision (cf. Eur. Court H.R., Kamasinski judgment of

19 December 1989, Series A no. 168, p. 31, para. 62).

     Insofar as the applicant complains that the proceedings before

the Regional Court were not in conformity with Article 6 (Art. 6) of

the Convention, the Commission notes that the Regional Court's judgment

was quashed on appeal and that the Court of Appeal convicted the

applicant after a full new examination of his case. In these

circumstances the Commission considers that the applicant can no longer

claim to be a victim within the meaning of Article 25 (Art. 25) of the

Convention of the proceedings before the Regional Court.

     Insofar as the applicant complains that he was not provided with

a written translation of certain documents in his case such as the

summons and the judgment in first instance, the Commission recalls that

the absence of a written translation of a judgment does not in itself

entail a violation of Article 6 para. 3 (e) (Art. 6-3-e) of the

Convention (see Kamasinski judgment, loc.cit., p. 38, para. 85).

     The Commission further observes that there was interpretation

throughout the criminal proceedings, including the preliminary

investigation, and that the applicant made no complaint about

inadequacy of that interpretation, nor suggested that he was unable to

communicate effectively with the lawyer who represented him throughout

the proceedings against him, either during the preliminary

investigation or while the proceedings were pending. The Commission

further observes that the applicant lodged timely appeals and stated

his grounds for appealing, either alone or through his lawyer.

     Taking into consideration the situation as a whole in which the

defence was placed in preparing the applicant's defence, the Commission

finds no appearance of a violation of Article 6 para. 3 (a), (b), (c)

and (e) (Art. 6-3-a, 6-3-b, 6-3-c, 6-3-e) of the Convention in this

respect.

     As regards the applicant's complaint under Article 6 para. 3 (d)

(Art. 6-3-d) that he was not provided with sufficient possibilities to

question the witnesses examined before the trial courts, the Commission

notes in the first place that this complaint has not been raised before

the Supreme Court, and that thus the question arises whether in this

respect the applicant has exhausted domestic remedies in accordance

with Article 26 (Art. 26) of the Convention. However, even assuming

that the applicant has exhausted domestic remedies on this point, the

Commission, noting that the Court of Appeal examined several witnesses,

all of whom were equally examined by the defence, whereas the defence

withdrew its request to hear one witness and agreed that another

witness would not be examined before the Court of Appeal, finds no

substantiation of the allegation that the defence rights were

restricted in the examination of the witnesses before the trial courts.

It therefore finds no appearance of a violation of Article 6 para. 3

(d) (Art. 6-3-d) of the Convention in this respect.

     Insofar as the applicant complains that the Court of Appeal was

partial and biased, as in the same composition it had already decided

the cases against a number of co-accused in which it had expressed an

opinion about the applicant's involvement in a criminal organisation,

the Commission recalls that the presumption of innocence may be

violated if a judicial decision amounts in substance to a determination

of a person's guilt without that person having been proved guilty

according to law and in particular without him having had an

opportunity to exercise the rights of the defence (cf. Eur. Court H.R.,

Minelli judgment of 25 March 1983, Series A no. 62, p. 18, para. 37;

and Allenet de Ribemont v. France, Comm. Report 12.10.93, para. 67).

     However, in the present circumstances the Commission finds that

this was not the case. In the judgments concerning the co-accused the

courts were not called upon to determine the guilt of the applicant,

but that of the co-accused. Part of the evidence against the co-accused

may have concerned the extent to which the applicant was involved in

the criminal organisation and what conclusions could be drawn

therefrom. Insofar as the facts established indicated the involvement

of the applicant in the criminal organisation in the case against the

co-accused, the Commission finds that the trial court's findings as to

this involvement must be considered to be a part of the trial court's

evaluation of the evidence presented in the cases against the co-

accused. It did not, however, through this evaluation determine the

guilt of the applicant, which, as explicitly stated by the Court of

Appeal, was a matter to be considered during the applicant's own trial,

whilst the Court of Appeal did not exclude the possibility that it

would acquit the applicant of the charge of participation in a criminal

organisation, this being dependent on the evaluation of the evidence

submitted in the applicant's own trial.

     The Commission recalls that the Court of Appeal examined several

witnesses, police reports and recorded telephone conversations between,

inter alia, the applicant and certain co-accused. It is satisfied that

the applicant's conviction was based on an evaluation of this evidence.

Especially, there is no indication that the Court of Appeal in

fulfilling its functions started from the conviction or assumption that

the applicant had committed the acts with which he was charged.

     The Commission, therefore, concludes that the judgment of the

Court of Appeal of 4 April 1991 did not amount to a breach of the

presumption of innocence guaranteed under Article 6 para. 2

(Art. 6-2) of the Convention.

     As regards the complaint that the Court of Appeal was not

impartial, 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 and also to an objective

test (cf. Eur. Court H.R., Hauschildt judgment of 24 May 1989, Series

A no. 154, p. 21, para. 46)

     As to the subjective test, the applicant has not alleged that the

judges involved in the proceedings at issue acted with personal bias.

In any event, the personal impartiality of a judge must be presumed

until there is proof to the contrary and in the present case there is

no such proof.

     Under the objective test, it must be determined whether there are

ascertainable facts which may raise doubts as to the judges'

impartiality. This implies that it must be established whether there

was a legitimate reason to fear that they lacked impartiality. The view

of the applicant is important but not decisive. What is decisive is not

the subjective apprehensions of the accused, however understandable,

but whether, in the particular circumstances of the case, his fears can

be held to be objectively justified (cf. Eur. Court H.R.. Nortier

judgment of 24 August 1993, Series A no. 267, p. 22, para. 58).

     The Commission considers that the mere fact that a judge has

already taken decisions in related criminal proceedings concerning co-

accused charged within the same factual context cannot in itself be

regarded as justifying anxieties about his impartiality in the

determination of the charges against the applicant himself. What

matters is the scope and nature of the decisions taken by the judge

before deciding on the charges against the applicant.

     It appears from the applicant's submissions and the reasoning of

the Court of Appeal, when it rejected the applicant's preliminary

objection on this point, that when the co-accused were found guilty of

participation in a criminal organisation a number of names, among which

the name of the applicant, were mentioned as possible members of this

organisation.

     The Commission notes that the Court of Appeal, whose members had

not taken any decision in respect of the applicant at the stage

preceding the appeal proceedings, explicitly stated that the question

whether or not the applicant was guilty of belonging to a criminal

organisation had been examined in a separate investigation against him

and that the answer to this question was further dependent on what the

applicant himself and the witnesses for the defence would state before

the Court of Appeal in his own case. The Court of Appeal did not

exclude the possibility that, on the basis of these statements, it

would reach a finding as regards the applicant's involvement in the

criminal organisation which was different from its finding in the other

cases.

     The Commission further notes that the Court of Appeal did not use

the judgments in the cases against the co-accused as evidence against

the applicant, but based its finding of the applicant's guilt on, inter

alia, police reports, recorded telephone conversations between, inter

alia, the applicant and co-accused, and statements by the applicant,

co-accused and a number of witnesses, all of which elements had been

subject to an examination by the parties before the Court of Appeal in

the proceedings against the applicant.

        In these circumstances, the  Commission  cannot  find  that the

   applicant's fear as to the impartiality of the judges of  the  Court

   of Appeal can be regarded as objectively justified  and,  therefore,

   finds no  appearance of a  violation  of  Article 6  para. 1

   (Art. 6-1) of the Convention in this respect.

        Considering  the  proceedings  as  a  whole,  noting  that  the

   applicant,  who  was  assisted  by  a  lawyer  and  an   interpreter

   throughout the proceedings, was given ample opportunity to state his

   case  and  to  challenge  the  evidence  against  him, including the

   examination of  witnesses  before the  trial  court, the  Commission

   finds no indication that the applicant's trial was not in conformity

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

        It follows that 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, by a majority,

        DECLARES THE APPLICATION INADMISSIBLE.

   Deputy Secretary to the Commission   Acting President of the Commission

        (M. DE SALVIA)                           (H DANELIUS)