Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22210/93

by F.A.W.D.

against the Netherlands

The European Commission of Human Rights sitting in private on

30 November 1994, the following members being present:

Present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

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 10 August 1992 by

F.A.W.D. against the Netherlands and registered on 12 July 1993 under

file No. 22210/93;

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

The applicant is a Dutch national, born in 1946, and resides at

Leiden, the Netherlands. Before the Commission he is represented by Mr.

G. Spong, a lawyer practising in The Hague.

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

summarised as follows.

By summons of 10 July 1989 the applicant was ordered to appear

before the 's-Hertogenbosch Regional Court (Arrondissementsrechtbank).

He was charged with several offences against the Opium Act (Opiumwet)

and the Fire Arms Act (Vuurwapenwet).

In its judgment of 6 October 1989 the Regional Court found that

the evidence against the applicant had been unlawfully obtained, in

particular in that there had been no legal basis for the tapping of the

applicant's telephone, since the prosecution had requested the opening

of a preliminary judicial investigation (gerechtelijk vooronderzoek)

limited to offences concerning amphetamine, a substance included in

list I of the Opium Act, whereas the offences with which the applicant

was charged concerned M.D.M.A. [methylenedioxymethamphetamine -

commonly known as "XTC" or "Ecstasy"], which under the Opium Act is a

different substance. Noting that, according to Sections 181 and 182 of

the Code of Criminal Procedure, a preliminary judicial investigation

must remain restricted to what is stated in the prosecution's request

for the opening of this investigation, the Regional Court consequently

acquitted the applicant and ordered his immediate release. The

prosecution authorities filed an appeal against this judgment with the

's-Hertogenbosch Court of Appeal (Gerechtshof).

On 21 March 1990 the Court of Appeal, composed of Mr. S. as

President, and Mr. M. and Mr. K. as judges, limited its examination to

the questions whether or not the prosecution was admissible in its

prosecution of the applicant and whether or not the means of evidence

in his case had been lawfully obtained. The applicant, invoking his

right to remain silent, did not make any statement to the Court. The

Court further heard an narcotics expert and a police officer. The

parties to the proceedings were provided with an opportunity to

question these persons and to state their views on the questions before

the Court. The Court of Appeal adjourned its proceedings until

4 April 1990.

In its interlocutory judgment of 4 April 1990 the Court of Appeal

declared the prosecution admissible and found that the evidence in the

applicant's case had been lawfully obtained. Given that the

investigation had not been completed, it ordered the re-opening of the

investigation and adjourned its further proceedings until

25 October 1990.

On 25 October 1990 the Court of Appeal fully recommenced its

examination in view of its different composition, i.e. Mr. M. as

President, and Mr. K. and Mr. H. as judges. The President of the Court

of Appeal informed the parties that the objections, which had been

examined in the course of the hearing on 21 March 1990 and which had

been rejected in the Court of Appeal's interlocutory judgment of

4 April 1990, were considered as having been raised again and that

these objections would be determined in the Court of Appeal's judgment.

The applicant and his lawyer agreed with this procedure.

The Court of Appeal considered the written means of evidence,

such as, inter alia, official reports by the police and the forensic

laboratory, examined the applicant, considered the parties'

submissions, heard their final pleas and declared its investigation

closed.

In its judgment of 8 November 1990 the Court of Appeal, on the

same grounds as the grounds of the interlocutory judgment of

4 April 1990, declared the prosecution admissible and found that the

evidence in the applicant's case had been lawfully obtained. It quashed

the judgment of 6 October 1989, acquitted the applicant on a number of

charges, convicted him of several offences against the Opium Act and

of one offence against the Fire Arms Act, and sentenced him to twenty-

four months' imprisonment of which six months suspended pending a

probation period of two years and with deduction of the time spent in

pre-trial detention.

The applicant's appeal in cassation was rejected by the Supreme

Court (Hoge Raad) on 16 June 1992. The applicant had complained under

Article 6 para. 1 of the Convention that the Court of Appeal, in its

changed composition, could not be regarded as impartial in that, in its

judgment of 8 November 1990, it had rejected the objections raised in

respect of the admissibility of the prosecution and the lawfulness of

the evidence obtained on the same grounds as stated in the Court of

Appeal's interlocutory judgment of 4 April 1990. The Supreme Court

held that a judge is presumed to be impartial unless there are serious

indications that he is prejudiced in respect of an accused, that is to

say that the accused's fear of the judge's partiality is objectively

justified. However it found that the fact that the Court of Appeal,

after an initial interlocutory judgment, recommenced its examination

resulting in a new decision on the objections previously determined in

the interlocutory judgment could not lead to the finding that the Court

of Appeal was partial.

COMPLAINT

The applicant complains that the criminal charges against him

have not been determined by an impartial tribunal as required by

Article 6 para. 1 of the Convention. He submits that the Court of

Appeal judges, MM. M. and K., were prejudiced when they determined the

objections raised in respect of the admissibility of the prosecution

and the lawfulness of the evidence obtained for a second time. He

argues that this is evident given the fact that the Court of Appeal

rejected these objections for a second time on the same grounds as the

grounds stated in the initial interlocutory judgment of 4 April 1990.

He further submits that these two judges should in fact have withdrawn

from the case.

THE LAW

The applicant complains that the criminal charges against him

have not been determined by an impartial tribunal as required by

Article 6 para. 1 (Art. 6-1) of the Convention, since two of the three

Court of Appeal judges, who had participated in a previous decision on

the admissibility of the prosecution and the lawfulness of the evidence

obtained, later participated in the Court of Appeal's final decision

on these issues.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads:

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

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

hearing (...) by an (...) impartial tribunal (...)."

The Commission notes that the Court of Appeal, in its

interlocutory judgment of 4 April 1990, declared the prosecution

admissible and found that the evidence against the applicant had been

lawfully obtained.

The Commission further notes that, on 25 October 1990 the Court

of Appeal fully recommenced its examination since one of its judges had

been replaced and that the objections - which had been raised in the

course of the hearing on 21 March 1990 and which had been rejected in

the Court of Appeal's interlocutory judgment of 4 April 1990 - were

again examined and rejected on the same grounds as those stated in the

interlocutory judgment.

The Commission finally notes that the applicant did not challenge

the two judges, who were allegedly partial, although he was aware of

the composition of the Court of Appeal, at the latest when he appeared

for the hearing on 25 October 1990.

However, the Commission does not find it necessary to decide

whether or not the applicant has failed to exhaust domestic remedies

as required by Article 26 (Art. 26) of the Convention by failing to

challenge the two judges at issue since his complaint is in any event

manifestly ill-founded for the following reasons.

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 (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.

As regards the objective test, the Commission observes that there

is no general rule resulting from the obligation under the Convention

for courts to be impartial to the effect that, if a trial court's

composition changes, all judges involved in the previous proceedings

before that court should be replaced by others.

The Commission further observes that, as a result of the change

in the Court of Appeal's composition, the interlocutory judgment became

null and void. The Court of Appeal, in its new composition, recommenced

its examination including the preliminary issues as regards the

admissibility of the prosecution and the lawfulness of the evidence

obtained. In this new examination the parties were provided with a

second opportunity to state their views on the preliminary issues

before the Court determined these issues in its judgment.

The Commission considers that the fact that two of the three

judges, who had remained in the same function, dealt with these issues

twice does not justify the conclusion that the applicant's fears that

the two judges at issue were lacking impartiality is objectively

justified.

As regards the Court of Appeal's findings in respect of these

preliminary issues, which were identical with the Court of Appeal's

findings in its previous composition, the Commission recalls that it

is primarily for the domestic courts to apply and interpret domestic

law and that the admissibility and probative value of evidence is

primarily a matter for regulation under domestic law (cf. No. 12505/86,

Dec. 11.10.88, D.R. 58 p. 106). Given that these issues were examined

in the course of adversarial proceedings the Commission finds that also

in this respect the applicant's trial was in conformity with the

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

It follows that the application must be rejected as being

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) (S. TRECHSEL)

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F.A.W.D. v. THE NETHERLANDS

F.A.W.D. v. THE NETHERLANDS

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