Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23508/94

by Hayati SAN

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 11 May 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

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 3 November 1993

by Hayati SAN against the Netherlands and registered on

17 February 1994 under file No. 23508/94;

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 Turkish citizen, born in 1957 and residing at

Apeldoorn, the Netherlands. He is represented before the Commission by

Mrs. A. J. Zeyl, a lawyer practising at Zutphen, the Netherlands.

The facts, as submitted by the applicant, may be summarised as

follows.

On 18 October 1991 the applicant was convicted by the Regional

Court (Arrondissementsrechtbank) of Zutphen of complicity in narcotics

offences and sentenced to four years' imprisonment. On 31 March 1992

the Court of Appeal (Gerechtshof) of Arnhem acquitted the applicant in

respect of some of the charges but confirmed the conviction in respect

of one charge and confirmed the prison sentence of four years.

The applicant lodged an appeal in cassation with the Supreme

Court (Hoge Raad). In his appeal he stated that he and another person,

K., had both been suspected of having committed the same criminal

offence but only the applicant, and not K., had been charged with the

offence. Moreover, the proceedings against three other persons, C., H.

and P., had been conducted separately and had resulted in prison

sentences of two and a half years and three years respectively, whereas

the applicant had been sentenced to four years' imprisonment. In these

respects there was a lack of equal treatment and arbitrariness.

Moreover, the Court of Appeal had not given any reasons for rejecting

the applicant's arguments on these points.

In its judgment of 18 May 1993 the Supreme Court stated that the

Court of Appeal ought to have given reasons for rejecting the

applicant's arguments. However, this did not mean that its judgment had

to be quashed since there were grounds on which the Court of Appeal

could have rejected the applicant's arguments. In particular, the fact

that one suspect and not his accomplice is prosecuted did not, in the

view of the Supreme Court, justify the conclusion that there was a

breach of the principle of equal treatment or that the authorities had

acted in an arbitrary way. Moreover, the separation of proceedings

against several accomplices could not be objected to on the ground that

this could lead to a difference in the severity of the penalties. On

these grounds the Supreme Court rejected the applicant's appeal.

COMPLAINTS

The applicant complains of violations of Articles 6 and 14 of the

Convention in that, on the one hand, the applicant, but not his

accomplice K., was prosecuted and, on the other hand, the case of C.,

H. and P., which formed one whole together with the applicant's own

case, was separated from that case with the result that the applicant

was punished more severely than these three co-accused. He also

complains of the Court of Appeal's failure to give reasons for the

rejection of his appeal insofar as it was based on these procedural

deficiencies.

THE LAW

The applicant complains of violations of Articles 6 and 14

(Art. 6, 14) of the Convention in that he, as regards his prosecution

and sentence, did not receive the same treatment as his accomplices K.,

C., H., and P.

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

as relevant:

"In the determination of ..... any criminal charge against him,

everyone is entitled to a fair ..... hearing ..... by an

independent and impartial tribunal established by law."

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

"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 Commission notes that the main question in the present case

is whether the applicant has been discriminated against in the

enjoyment of his right to a fair court hearing guaranteed by Article

6 (Art. 6) in that he was treated differently, and more severely, than

four other persons who had been involved in the same criminal acts. One

of these four persons had not been prosecuted and the other three had

been sentenced to shorter terms of imprisonment than the applicant.

It must be emphasised that the domestic prosecuting authorities

are in the best position to evaluate whether the case against a certain

person is sufficiently strong for criminal proceedings to be brought

against him and that, where there are two suspects, there may well be

differences as regards the evidence which justify that proceedings are

brought only against one of them. Moreover, as regards the

determination of penalties, the courts having heard a case are in the

best position to make such a determination which is often based not

only on the gravity of the offence but also on a number of other

factors such as the character of the accused and his criminal record

and general way of life.

Having regard to these general considerations, the Commission

cannot find it established that the situation of the four persons with

whom the applicant compares himself was identical to that of the

applicant himself insofar as the bringing of criminal proceedings and

the imposition of punishment were concerned. For these reasons, it has

not been shown that the applicant has been the subject of

discriminatory treatment.

Furthermore, as regards the failure of the Court of Appeal to

give reasons for its rejection of the applicant's arguments on these

points, the Commission notes that the Supreme Court, in its judgment

of 18 May 1993, indicated the reasons justifying the rejection of these

arguments. Consequently, any deficiency in the Court of Appeal's

judgment in regard to this matter must be considered to have been

remedied by the Supreme Court.

It follows that the application is manifestly ill-founded and

should be declared inadmissible in accordance with 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)

Menu

SAN v. THE NETHERLANDS

SAN v. THE NETHERLANDS

LEXI