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AS TO THE ADMISSIBILITY OF

Application No. 19769/92

by J. H. S.

against the Netherlands

The European Commission of Human Rights (Second Chamber)

sitting in private on 6 April 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 7 January

1992 by J.H.S. against the Netherlands and registered on 25 March

1992 under file No. 19769/92;

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 Dutch citizen, born in 1949, and resides

at Amsterdam. Before the Commission she is represented by Mr. V.

Kraal, a lawyer practising in Amsterdam.

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

be summarised as follows.

In June 1988, the applicant was charged with having

repeatedly received stolen bank cheques in the period from May

1987 to March 1988. The applicant claimed to be innocent.

By judgment of 22 December 1988, the Regional Court

(Arrondissementsrechtbank) of Haarlem found the applicant guilty

and sentenced her to one year's imprisonment. The Regional Court

based its conviction mainly on the statements made by J. and O.,

who had declared that they had repeatedly sold bank cheques,

which they had previously stolen from post boxes, to the

applicant. An earlier conviction of the applicant of receiving

stolen goods was taken into account in the determination of the

sentence.

Both the applicant and the public prosecutor filed an appeal

with the Court of Appeal (Gerechtshof) of Amsterdam.

On 9 June 1989, the Court of Appeal heard J. as a witness,

who then withdrew his previous statement. He declared that the

applicant was wrongly accused and asserted that his earlier

statement had been motivated by a dispute with the applicant. At

the request of the public prosecutor (procureur-generaal), the

presiding judge of the Court of Appeal proceeded under Article

293 of the Code of Criminal Procedure (Wetboek van

Strafvordering), which deals with suspicion of perjury. He warned

the witness of the consequences of possible perjury, after which

J. repeated his statement and signed a separate procès-verbal

containing his statement. Following the applicant's request

thereto, the Court of Appeal decided to adjourn its examination

for an unspecified period pending the outcome of the

investigation into the possible perjury of witness J.

The Court of Appeal resumed its examination on 10 October

1989. As the composition of the Court of Appeal had changed, the

Court of Appeal made a full new examination of the case and heard

witness J., who repeated his statement of 9 June 1989, and

witness O., who also withdrew his previous incriminating

statement. O. declared that he had never sold any stolen bank

cheques to the applicant and that he had made his earlier

statement under pressure of the police officers who had

interrogated him. At the request of the public prosecutor, the

procedure of Article 293 of the Code of Criminal Procedure was

also applied to witness O. The procès-verbal containing his

statement was annexed to the procès-verbal of the hearing under

the heading "suspicion of perjury" ("verdenking meineed"). The

applicant and her lawyer were provided with the opportunity to

question the witnesses J. and O., and to comment on the witnesses

and their statements.

The applicant again requested the Court of Appeal to adjourn

the hearing pending an investigation into possible perjury by one

or both witnesses. The Court of Appeal rejected this request,

finding no apparent reason for such an adjournment. The applicant

further requested the Court of Appeal to refer the case back to

the investigating judge (rechter-commissaris) for a further

examination of the case. Following the applicant's final address

to the Court, in which she claimed her innocence, the presiding

judge declared the Court of Appeal's examination closed and set

the date for the pronouncement of the judgment.

By judgment of 24 October 1989, the Court of Appeal quashed

the judgment of 22 December 1988 on the basis of a different

finding in respect of the evidence, convicted the applicant of

habitual intentional buying of unlawfully obtained objects and

sentenced her to eighteen months' imprisonment of which six

months suspended pending a probation period of two years. The

Court of Appeal based its conviction on the applicant's statement

before the Court of Appeal and the initial incriminating

statements of J. and O. before the Regional Court. An

incriminating statement made by a third witness T. before the

police was used as supportive evidence.

In her subsequent appeal in cassation to the Supreme Court

(Hoge Raad) the applicant argued, inter alia, that the Court of

Appeal had violated Article 6 of the Convention by rejecting her

request to adjourn the proceedings until the investigation into

possible perjury by the witnesses had been completed. The

applicant maintained that pursuant to Article 6 of the Convention

the defence should be entitled to know the results of this

investigation and to challenge them if necessary. The applicant

also complained that no decision had been taken with respect to

her request to have the case referred back to the Regional Court.

In its judgment of 16 September 1991, the Supreme Court

rejected the appeal in cassation, considering that, within the

limits set by law, the assessment of evidence, which they

consider reliable, is within the competence of the judges finding

the facts. It further held that, since the applicant's request

to refer the case back to the investigating judge was of such a

general nature, the Court of Appeal was under no legal obligation

to determine it.

COMPLAINTS

1. The applicant complains under Article 6 paras. 1, 2 and 3

(d) of the Convention that the Court of Appeal rejected her

request to adjourn the proceedings pending the outcome of the

investigation into possible perjury by the witnesses J. and O.

The applicant argues that pursuant to Article 6 of the Convention

the defence is entitled to know the results of such an

investigation and to challenge them if necessary.

2. The applicant further complains under Article 6 that the

Court of Appeal failed to determine her request to refer the case

back to the investigating judge.

THE LAW

The applicant complains under Article 6 paras. 1, 2 and 3

(d)

(Art. 6-1, 6-2, 6-3-d) of the Convention that the Court of Appeal

rejected her request to adjourn the proceedings pending the

outcome of the investigation into possible perjury by the

witnesses J. and O. and that it failed to determine her request

to refer the case back to the investigating judge.

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 (...).

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 (...)

(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 (...)."

The Commission recalls at the outset that it is not

competent to deal with an application alleging that errors of law

or fact have been committed by domestic courts, except where it

considers that such errors might have involved a possible

violation of any of the rights or freedoms set out in the

Convention (cf. No. 12013/86, Dec. 10.3.1989, D.R. 59 p. 111).

In the present case the applicant complains under Article

6(Art. 6) of the Convention that she did not receive a fair trial

in the determination of the criminal charges against her, in that

her conviction was founded on certain statements, which in the

course of the proceedings against her were withdrawn. As the

guarantees in paras. 2 and 3 (d) of Article 6 (Art. 6-2, 6-3-d)

are specific aspects of the right to a fair trial set forth in

paragraph 1 (Art. 6-1), the Commission will consider the

complaints under the three provisions taken together (cf. Eur.

Court H.R., Asch judgment of 26 April 1991, Series A no. 203, p.

10 para. 25).

The Commission recalls that the taking of evidence is

governed primarily by the rules of domestic law and that it is

in principle for the national courts to assess the evidence

before them (cf. most recently, Eur. Court H.R., Saïdi judgment

of 20 September 1993, to be published in Series A no. 261-C,

para. 43). More in particular, where a court is confronted with

a contradiction between an earlier statement and subsequent

evidence at the trial, it is the task of this court to consider

the credibility of the declarations of the witness involved (cf.

No. 8414/78, Dec. 4.7.1979, D.R. 17 p. 231). The task of the

Convention organs in this respect is to ascertain whether the

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

evidence was taken, were fair (Saïdi judgment, ibid., para. 43).

Given that the applicant and her lawyer were provided with

ample opportunity before the Court of Appeal to question the

witnesses J. and O. and to challenge their earlier statements and

the other evidence before the Court, the Commission cannot find

that in this respect the applicant was deprived of a fair hearing

as required by Article 6

(Art. 6) of the Convention.

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

failed to decide her request to refer the case back to the

investigating judge, the Commission does not find that this

affected the fairness of the criminal proceedings at issue.

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, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second

Chamber

(K. ROGGE) (S. TRECHSEL)

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J.H.S. v. THE NETHERLANDS

J.H.S. v. THE NETHERLANDS

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