Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20489/92

by Caspar ISING

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 30 April 1992

by Caspar ISING against the Netherlands and registered on 10

August 1992 under file No. 20489/92;

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 1960, and resides

at Kaatsheuvel.

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

be summarized as follows.

In October 1986, the police seized two cars owned by the

applicant. The cars were not insured and had not been subjected

to the periodical inspection which is required by law. On 1 June

1987 the District Court (Kantongerecht) of Tilburg sentenced the

applicant to a fine and imposed a conditional suspension of his

driving licence for three months. The District Court further

ordered the confiscation of the two cars.

Following the applicant's appeal, the Regional Court (Arron-

dissementsrechtbank) of Breda, in its judgment of 14 December

1987, quashed the decision of 1 June 1987, lowered the fine and

decided that only one car be confiscated. The conditional

suspension of his driving licence was upheld.

The applicant appealed in cassation to the Supreme Court

(Hoge Raad). He also submitted a complaint to the Procurator

General (Procureur-generaal bij de Hoge Raad) on 8 December 1988.

He complained that the President of the Regional Court had been

biased against him and that the procès-verbal of the hearing

before the Regional Court was inadequate. Pursuant to Section 14a

of the Act on the Judicial Organisation (Wet op de Rechterlijke

Organisatie), the applicant requested the Procurator General to

submit his complaints to the Supreme Court in order to have them

investigated. The Procurator General, after having investigated

the case, rejected the request by letter of 28 January 1989.

On 2 May 1989 the Supreme Court quashed the Regional Court's

judgment on formal grounds and referred the case to the Court of

Appeal (Gerechtshof) of 's-Hertogenbosch for a full new

examination of the applicant's appeal against the decision of 1

June 1987.

In the course of the subsequent proceedings before the Court

of Appeal, the applicant wanted to make recordings at the

hearing, but the President prohibited this. Five witnesses were

heard, among whom three policemen. The Court of Appeal refused

the applicant's request to summon two further policemen for an

examination before the Court of Appeal, finding no grounds for

granting this request. On 30 March 1990 the applicant was

convicted and sentenced to a fine whereas one car was

confiscated.

The applicant again appealed in cassation to the Supreme

Court. Referring to Article 6 of the Convention, he complained,

inter alia, that he was denied the possibility to make recordings

at the hearing before the Court of Appeal and that his request

to hear two further witnesses had been rejected.

The Supreme Court rejected the appeal on 5 November 1991.

It held, inter alia, that generally speaking the right to have

"adequate facilities for the preparation of his defence", as

provided for by Article 6 of the Convention, does not include the

right to make recordings of the hearing, whereas the applicant

had not shown any special circumstances warranting an exception

to this rule. With respect to the second complaint, the Supreme

Court held that the Court of Appeal could reasonably have

considered that it was unnecessary to hear two more witnesses,

whereas the applicant had not substantiated the importance of

hearing these witnesses.

COMPLAINTS

The applicant complains under Article 6 paras. 1 and 3 of

the Convention that his request to hear two further witnesses was

rejected and that he was denied the possibility to make

recordings at the hearing before the Court of Appeal.

The applicant complains under Article 13 of the Convention

that the Procurator General rejected his request for a Supreme

Court investigation of his complaints relating to the President

of the Breda Regional Court and the procès-verbal of the hearing

before the Regional Court which he considered inadequate.

THE LAW

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

(Art. 6-1, 6-3) of the Convention that his request to hear two

further witnesses was rejected and that he was denied the

possibility to make recordings at the hearing before the Court

of Appeal.

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:

(...)

(b) to have adequate (...) facilities for the preparation

of his defence;

(...)

(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."

As the guarantees in para. 3 of Article 6 (Art. 6-3) 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

two provisions taken together (cf. Eur.Court H.R., Asch judgment

of 26 April 1991, Series A no. 203, p. 10 para. 25).

In respect of the complaint that the Court of Appeal

rejected the applicant's request to examine two further witnesses

the Commission recalls that Article 6 (Art. 6) of the Convention

does not give the accused an absolute right to obtain the

examination of witnesses on his behalf. The judge may refuse to

hear a witness if he considers that the witness's statement would

not be relevant (cf. No. 10486/83, Dec. 9.10.1983, D.R. 49 p.

86).

The Commission observes that the Court of Appeal, having

heard five witnesses, considered it unnecessary to summon two

further witnesses. The applicant has not submitted any details

in support of his general complaint that the refusal to hear

these witnesses affected the fairness of his trial.

The Commission, consequently, finds no indication that the

Court of Appeal failed to consider relevant evidence or that it

rejected the applicant's request in an arbitrary and unfair

manner, and that, therefore, the Court's rejection of the

applicant's request rendered the hearing of his case unfair.

As to the applicant's complaint that he was prohibited from

recording during the proceedings before the Court of Appeal, the

Supreme Court held that, generally speaking, the right to have

"adequate facilities for the preparation of his defence" does not

include the right to make recordings of the hearing, whereas the

applicant had not shown any special circumstances warranting an

exception to this rule. The Commission finds that the applicant

has not shown that the prohibition at issue prejudiced his right

to a fair hearing as guaranteed by Article 6 (Art. 6) of the

Convention and, consequently, finds no indication in the case-

file that the criminal proceedings against the applicant were

unfair in this respect.

It follows that this complaint is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant further complains that the Procurator General

rejected his request for a Supreme Court investigation of his

complaints relating to the President of the Breda Regional Court

and the procès-verbal of the hearing before the Regional Court

which he considered inadequate. He relies on Article 13 (Art. 13)

which provides:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in an

official capacity."

The Commission notes that, following the applicant's appeal

in cassation, the Supreme Court quashed the judgment of the

Regional Court of Breda on formal grounds and referred the case

to the Court of Appeal of 's-Hertogenbosch, which again examined

the applicant's appeal.

In these circumstances, the Commission considers that the

applicant can no longer claim to be a victim of a violation of

the Convention within the meaning of Article 25 (Art. 25) of the

Convention in respect of the proceedings before the Regional

Court of Breda.

It follows that this complaint must be rejected under

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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ISING v. THE NETHERLANDS

ISING v. THE NETHERLANDS

LEXI