AS TO THE ADMISSIBILITY OF

                      Application No. 21921/93

                      by R.A.G.

                      against the Netherlands

      The European Commission of Human Rights (Second Chamber) sitting

in private on 5 July 1994, the following members being 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 14 May 1993 by

R.A.G. against the Netherlands and registered on 25 May 1993 under file

No. 21921/93;

      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 citizen of the United States of America, born

in 1949, and is currently detained in Haarlem, the Netherlands. Before

the Commission he is represented by Mr.H.H.M. van Dijk, a lawyer

practising in Oss.

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

summarised as follows.

      On Sunday 16 September 1990 the Amsterdam Municipal Police was

informed at about 19.40 hours that a wounded woman was lying on a

stretch of grass at the bottom of a certain block of flats. When the

police arrived they found a woman with a number of stab wounds. She

stated her name was H.G. and that she had been stabbed by her husband.

She gave the police her address and provided them with the keys to her

apartment. She was then brought to an Amsterdam hospital, where it was

found that she had 26 stab wounds in her breast, epigastrium and

buttock. In the meantime the police went to the woman's apartment,

where they found her spouse, the applicant, in the bedroom. Traces of

blood were found in the bedroom, living room, toilet and on the

balcony. It appears that the applicant also had a number of stab

wounds. He was also brought to a hospital. An official police report

was made on 16 September 1990 by the two police officers who had found

the applicant and his wife.

      On 24 September 1990 the applicant's wife stated before the

Municipal Police that soon after their marriage in 1987 in the USA her

husband had regularly threatened and hit her, that her husband had

already been convicted once in the USA for offences involving violence,

that they had moved to the Netherlands in January 1990, that her

husband had serious alcohol problems and was using drugs, that he had

forbidden her on several occasions to leave the house, that about seven

weeks earlier she had been battered so seriously by her husband that

she needed treatment in a hospital, whereas she did not dare to seek

help in view of her husband's threats. In respect of the events on

16 September 1990, she stated that on 12 September 1990 her husband had

stabbed her several times, stating he would kill her, and also wounded

himself, that she had tried to leave, but that her husband had not

allowed her to leave the apartment and that on 16 September 1990 she

had managed to leave her house. She finally stated she wished to file

a complaint against her husband.

      The applicant was arrested in the hospital on 24 September 1990.

On that occasion the applicant stated that he was innocent and that he

did not know who had stabbed his wife and himself. He was then brought

to the deputy public prosecutor (hulpofficier van justitie), before

whom he declared he did not wish to  make any statement. The deputy

public prosecutor subsequently ordered the applicant's detention on

remand (inverzekeringstelling). The applicant remained in the hospital

until 25 September 1990, when he was transported to a penitentiary

hospital.

      On 29 October 1990 the applicant's wife was heard by the

investigating judge (rechter-commissaris), who informed her of her

right as the accused's spouse to refuse to give evidence. The

investigating judge then heard her under oath. On that occasion, she

stated that in the night of 12 September 1990 her husband had stabbed

her several times with a dagger stating he would kill her, that she

passed out and that when she regained consciousness she did not see her

husband, that she tried to call the neighbours, but that the telephone

had been broken, that she managed to leave her apartment and was found

by two children. She repeated her statement that her husband had

problems with alcohol and drugs. She finally submitted three letters

her husband had written to her and gave her permission to add these

letters to the procès-verbal of the hearing, one of which, with the

heading "Fri-Sat-Sun", read, inter alia:

      "H. do you really think & believe I don't feel & have same

      pain you have and suffer voor all I've done & cause to You

      & your family. (...) and for me it's all guilt - confusion

      pain & horror. I was so stupid. Sorry H. so sorry voor even

      being alive as I deserve no to be alive (...). All day &

      night I cry voor all I've done to you. I live with guilt -

      horror and feel such pain & stupidity and it's true. I've

      to pay voor it. H. my guilt - pain - horror will never go

      away.

      Love R. Your husband."

      According to the procès-verbal of the hearing on 29 October 1990

the applicant's former lawyer Mr.L.H. had been timely informed of the

hour of the hearing, but, according to information obtained by

telephone, Mr.L.H. had failed to pass this information on to the

accused's present lawyer Mr. H.H.M. van Dijk and, for this reason, the

hearing had taken place in the absence of Mr. van Dijk.

      By summons of 7 December 1990 the applicant was ordered to appear

before the Regional Court (Arrondissementsrechtbank) of Amsterdam on

28 December 1990.

      On 28 December 1990 the Regional Court, at the request of the

public prosecutor and with the applicant's consent, decided to adjourn

the hearing until 14 January 1991.

      On 14 January 1991 the Regional Court restarted its examination

in a new composition. The applicant did not wish to make any statement.

The applicant's wife stated she wished to avail herself of her right,

as a member of the accused's family, to refuse to give evidence.

Following a request by the public prosecutor, opposed by the applicant,

the Regional Court ordered that the applicant's personality and mental

state be examined in a forensic observation centre and adjourned its

examination for an unspecified period not exceeding three months.

      On 25 March 1991 the Regional Court restarted its examination in

a new composition. The public prosecutor requested another adjournment

since the report on the applicant's personality and mental state had

not been completed yet. The applicant stated that he was not prepared

to co-operate in this examination. The Regional Court adjourned the

hearing until 10 June 1991.

      On 10 June 1991 the Regional Court resumed its examination,

considered the police report of 16 September 1990, a written statement

of 24 September 1990 by the doctor who had examined the applicant's

wife, the procès-verbal of the hearing of the applicant's wife of

29 October 1990 before the investigating judge, the letter with the

heading "Fri-Sat-Sun" and a message by fax dated 24 September 1990 from

the Bureau of Records of the H. County Sheriff containing the

applicant's criminal antecedents. The applicant, invoking his right to

remain silent, did not wish to make any statement before the Regional

Court. With the consent of the public prosecutor, the accused and his

lawyer, the Regional Court decided not to hear the applicant's wife as

a witness.

      In his defence plea, the applicant's lawyer, referring to the

Unterpertinger judgment (Eur. Court H.R., judgment of 24 November 1986,

Series A no. 110), argued that the statement by the applicant's wife

before the police and the investigating judge should not be admitted

as evidence, since the defence had not been able to put questions to

her.

      In its judgment of 24 June 1991 the Regional Court convicted the

applicant of attempted manslaughter and sentenced him to eight years'

imprisonment. The Regional Court rejected the argument by the defence

that the statement by the applicant's wife before the police and the

investigating judge should not be admitted as evidence. It noted that

the applicant had not at any time contested the applicant wife's

reliability or the contents of her statements, that her statements were

supported by other evidence and that the absence of the accused's

lawyer at the hearing of the applicant's wife before the investigating

judge was caused by the accused's former lawyer's failure to transmit

the information about the date and hour of the hearing before the

investigating judge to his successor, a fact for which the defence was

responsible.

      The applicant filed an appeal against this judgment with the

Court of Appeal (Gerechtshof) of Amsterdam. At the hearing on

14 October 1991, the Court of Appeal examined the applicant, who

confirmed having written the letter with the heading "Fri-Sat-Sun" to

his wife. He further stated that he was innocent, that he did not know

who had stabbed his wife and himself, that his wife had used hard drugs

for ten years, that he could not state what had happened on

12 September 1990, that he refused to undergo a psychiatric

examination, that in the USA he had been previously convicted for

robbery but not for attempted murder and that his wife had in the

meantime emigrated to the USA.

      On 28 October 1991 the Court of Appeal quashed the judgment of

24 June 1991 in view of a different evaluation of the evidence,

convicted the applicant of attempted manslaughter and sentenced him to

eight years' imprisonment. The Court of Appeal based its conviction on

the police report of 16 September 1990, the written statement of

24 September 1990 by the doctor who had examined the applicant's wife,

the procès-verbal of the hearing of the applicant's wife of

29 October 1990 before the investigating judge, the letter with the

heading "Fri-Sat-Sun" and the applicant's statement of 14 October 1991

before the Court of Appeal.

      In respect of the argument by the applicant's lawyer that the

statements of 24 September and 29 October 1990 by the applicant's wife

should not be admitted as evidence since the defence had been unable

to question her, the Court of Appeal upheld the Regional Court's

reasoning that the defence was responsible for the absence of the

accused's lawyer at the hearing of the applicant's wife before the

investigating judge, as the applicant's former lawyer had been timely

informed about this hearing but had failed to transmit this information

to his successor. The Court of Appeal recalled that when the

applicant's wife was called before the Regional Court at the request

of the defence, she refused to give evidence, after which the defence

withdrew its request to hear her as a witness. The Court of Appeal

further held that her statements could be used in evidence since they

were supported by the other evidence in the case, the more so since the

applicant had failed to show that the letters he had written to his

wife could be read in any other sense than showing his guilt in respect

of the offence he was charged with.

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

hear the applicant's wife by way of a commission rogatory, holding that

such a hearing would appear useless given her refusal to give evidence

before the Regional Court and as, according to information provided by

the applicant who had indicated her place of residence, she had

returned to the USA and had informed the applicant that she was not

prepared ever to make any statement again.

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

Court (Hoge Raad) on 17 November 1992. The Supreme Court held that, for

the purposes of Article 6 of the Convention, it was not in itself

sufficient that the applicant's lawyer has been provided with the

opportunity to attend the hearing of the applicant's wife before the

investigating judge. However, in view of the fact that the Regional

Court had also been willing to examine the applicant's wife, but could

not do so since she decided to avail herself of her right not to give

evidence, the fact that the applicant's conviction was not based to a

decisive extent on his wife's statements, in particular the fact that

her statement was supported by a letter the applicant had written to

her, the Supreme Court rejected the applicant's argument that her

statements should not have been admitted as evidence. As to the Court

of Appeal's refusal to examine the applicant's wife, the Supreme Court

held that this refusal could, in view of the circumstances, not be

regarded as unreasonable and that, in view of the trial court's

competence to assess factual circumstances which cannot be examined in

cassation proceedings, the Court of Appeal could refuse to hear the

applicant's wife without violating Article 6 of the Convention.

COMPLAINT

      The applicant complains under Article 6 of the Convention that

he did not receive a fair trial, in that his conviction was mainly

based on statements by his wife whom he was unable to question.

THE LAW

      The applicant complains under Article 6 (Art. 6) of the

Convention that he did not receive a fair trial, in that his conviction

was mainly based on statements by his wife whom he was unable to

question.

      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 a (...) tribunal (...).

      (...)

      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;

      (...)."

      With regard to the decision of the Dutch courts to admit the

statements of the applicant's wife in evidence, the Commission recalls

that the admissibility of evidence is primarily governed by the rules

of domestic law, and as a general rule it is for the national courts

to assess the evidence before them. The Commission must ascertain

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

which the evidence was submitted, were fair (cf. Eur. Court. H.R.,

Edwards judgment of 16 December 1992, Series A no. 247-B, pp. 34-35,

para. 34).

      The applicant's complaint that he was unable to examine his wife

is a matter falling within the scope of the guarantees set out in

para. 3 of Article 6 (Art. 6-3) of the Convention, these guarantees

being specific aspects of the right to a fair hearing ensured by

para. 1 of this provision (cf. Eur. Court H.R., Isgrò judgment of

19 February 1991, Series A no. 194-A, p. 12, para. 31). The Commission

will consider the complaint under the two provisions taken together.

      The Commission recalls that all the evidence must normally be

produced in the presence of the accused at a public hearing with a view

to adversarial argument. However, the use in evidence of statements

obtained at the stage of the police enquiry and the judicial

investigation is not in itself inconsistent with paras. 3(d) and 1 of

Article 6 (Art. 6-1, 6-3-d), provided that the rights of the defence

have been respected. As a rule these rights require that the defendant

be given an adequate and proper opportunity to challenge and question

a witness against him either when these statements were made or at a

later stage of the proceedings (cf. Eur. Court H.R., Saïdi judgment of

20 September 1993, Series A no. 261-C, p. 56, para. 43).

      In the present case, the applicant's wife was heard before the

police and the investigating judge. The applicant's lawyer, as

indicated in the file, had been informed about the hearing before the

investigating judge and was thus provided with an opportunity to

exercise the applicant's defence rights in respect of this hearing.

However, the hearing took place in the absence of the applicant and his

lawyer, since there had been a change of the applicant's lawyer and the

former lawyer had failed to transmit this information to his successor.

The Commission does not find that the respondent Government can be held

responsible for this failure. Moreover, the applicant's request to

examine his wife before the Regional Court was granted by the Regional

Court and she in fact appeared before this court. The defence was thus

provided with an opportunity to examine her. However, before the

Regional Court the applicant's wife decided to avail herself of her

right, as a member of the applicant's family, not to give evidence.

      It would clearly have been preferable if it had been possible to

examine her in person at the trial, but subject to the rights of the

defence being respected, it was open to the domestic court to have

regard to her previous statements, in particular in view of the fact

that it could consider them to be corroborated by other evidence before

it, including the police report of 16 September 1990, the written

statement of 24 September 1990 by the doctor who had examined the

applicant's wife and the applicant's own letters to his wife (cf.

mutatis mutandis Eur. Court H.R., Asch judgment of 26 April 1991,

Series A no. 203, pp. 10-11, para. 28).

      Furthermore, the applicant has been provided with ample

opportunity to challenge his wife's statement before the investigating

judge and to put his own version of events, first to the police and

later to the courts. However, before the Regional Court he preferred

to remain silent and before the Court of Appeal he basically claimed

his innocence and stated he could not declare what had happened on

12 September 1990, whilst he confirmed that he had written the letter

with the heading "Fri-Sat-Sun".

      The Commission notes that the applicant's wife's statements

before the investigating judge did not constitute the only or decisive

item of evidence on which the domestic courts based their conviction.

The applicant's conviction was also based on the police report of

16 September 1990, the written statement of 24 September 1990 by the

doctor who had examined the applicant's wife, the letter with the

heading "Fri-Sat-Sun" and the applicant's statement of 14 October 1991

before the Court of Appeal.

      Moreover, there is no indication that the applicant requested the

trial courts to examine the police officers, who had found him and his

wife on 16 September 1990, about their own findings or to call any

other witnesses.

      In these circumstances, the Commission finds no appearance that

the criminal proceedings against the applicant in respect of the

administration of the evidence or in any other respect were unfair.

      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.

Secretary to the Second Chamber       President of the Second Chamber

        (K. ROGGE)                           (S. TRECHSEL)