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AS TO THE ADMISSIBILITY OF

Application No. 20774/92

by Evert Hendrik HOOS

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 3 July 1992

by Evert Hendrik HOOS against the Netherlands and registered on

7 October 1992 under file No. 20774/92;

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 1946, and detained

in Sittard. Before the Commission he is represented by Mr. A.H.

Westendorp, a lawyer practising in The Hague.

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

be summarised as follows.

The applicant was the external adviser of "Toetanchamon",

a private security service, of which his wife was the director.

On 22 November 1988, the newspaper "Haagsche Courant"

published a critical article about the activities of

Toetanchamon. That night fire broke out in two offices of the

newspaper's publisher. In the following weeks other offices of

the publisher and several public buildings, including a police

station and a building of the Social Security Service, were

attacked. Two bombs exploded during a football match. On 24

December 1988, an Alderman of The Hague received a booby-trapped

lamp in the mail. By coincidence the bomb, which was hidden in

the lamp, did not explode.

On 27 December 1988, the police arrested two employees of

Toetanchamon on the suspicion of involvement in the series of

attacks. Three other employees were arrested on 30 December 1988,

16 January 1989 and 1 February 1989 respectively. The applicant

was arrested on 15 January 1989.

On 13 April 1989, the applicant was charged with a large

number of offences. Before the Regional Court (Arrondissements-

rechtbank) of The Hague, the public prosecutor relied on the

statements of four employees of Toetanchamon (hereinafter

referred to as the co-accused), who had indicated that the

applicant had planned the attacks and had given them specific

orders in this respect. All statements had been made before the

police during the preliminary investigation. The applicant, who

denied all charges, dismissed the incriminations as lies solely

designed to minimise the co-accused's own responsibility. It does

not appear from the case file that the applicant requested these

witnesses to be examined before the Regional Court.

On 11 May 1989, the Regional Court convicted the applicant

of (a) premeditated participation in an attempt to commit

grievous bodily harm (poging tot medeplegen van zware

mishandeling, gepleegd met voorbedachte rade) (b) multiple

participation in the deliberate commission of arson, causing

danger to goods, (c) incitement, by abusing his powers, to

participate in the deliberate commission of arson, causing danger

to lives of others and to goods, and (d) participation in the

deliberate causing of an explosion, causing danger to goods. The

applicant was sentenced to twelve years' imprisonment. In its

judgment, the Regional Court referred in particular and at length

to the statements of the four co-accused.

Both the applicant and the public prosecutor appealed to the

Court of Appeal (Gerechtshof) of The Hague. At the defence's

request, six witnesses were examined before the Court of Appeal.

The four co-accused were not examined. It does not appear that

the defence expressed the wish to hear the co-accused or that the

defence requested the Court of Appeal to examine them.

In its judgment of 19 July 1990, the Court of Appeal quashed

the Regional Court's judgment and, after a new examination of the

facts and evidence, convicted the applicant of (a) premeditated

participation in an attempt to commit grievous bodily harm, (b)

multiple participation in the deliberate commission of arson,

causing danger to goods, and (c) multiple participation in the

deliberate causing of an explosion, causing danger to goods and

sentenced the applicant to ten years' imprisonment. Like the

Regional Court, it relied mainly on the statements of the four

co-accused. In its judgment, the Court rejected a complaint that

two police officers had taken certain documents, allegedly

concerning the applicant's defence, from his cell, while he was

interrogated in another room by a third officer. The Court,

although acknowledging that these documents had been in the hands

of the police for about 20 minutes, did not find it established

that these documents concerned the applicant's defence or that

the officers had in fact taken these documents away or copied

them. Noting that the applicant refused to disclose the actual

contents of these documents, it did not find that the rights of

the defence had been impaired by this incident or that the

investigation as such had been unfair.

The applicant appealed in cassation to the Supreme Court

(Hoge Raad). Referring to the Unterpertinger, Kostovski and

Cardot cases, he submitted, inter alia, that Article 6 of the

Convention had been violated. He argued that his conviction had

been based solely on the statements of the four co-accused, who

had tried to minimise their own responsibility. In the criminal

procedures against the co-accused themselves the Regional Court

had already accepted these statements to be valid, and the

applicant had been unable to challenge them. He also argued that

his rights under Article 6 had been violated by the taking away

of certain documents from his cell.

In its judgment of 21 January 1992, the Supreme Court

rejected the appeal in cassation. It held that the Court of

Appeal could use the statements of the four co-accused in

evidence, taking into account that the applicant had at no stage

requested to have these witnesses examined before the trial

courts, which would have enabled him to examine them. As to the

complaint about the taking of the applicant's correspondence, the

Supreme Court accepted the rejection by the Court of Appeal.

COMPLAINTS

The applicant complains under Article 6 paras. 1 and 3(d)

of the Convention that he has been convicted on the basis of

statements made by four co-accused in proceedings in which he had

not been a party. He submits that he has been unable to challenge

these witnesses. The applicant admits that he did not request,

at any stage of the proceedings, to have the co-accused examined

before the court, but referring to the Commission's decision in

the Cardot case he argues that this is irrelevant as the co-

accused should have been summoned ex officio.

The applicant further complains under Article 6 of the

Convention that policemen took certain documents from his cell,

containing information about his trial, so that they could

anticipate the arguments the defence would present at his trial.

THE LAW

1. The applicant complains under Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d) of the Convention that he was convicted on the

basis of statements made at their trial by four co-accused, who

were not examined at his trials before the Regional Court and the

Court of Appeal.

The Commission recalls that, under Article 26 (Art. 26) of

the Convention, it may only deal with a matter after all domestic

remedies have been exhausted according to the generally

recognised rules of international law.

The mere fact that the applicant has submitted his case to

the various competent courts does not of itself constitute

compliance with this rule. It is also required that the substance

of any complaint made before the Commission should have been

raised during the proceedings concerned. In this respect the

Commission refers to its established case-law (cf. No. 1103/61,

Yearbook 5 pp. 168, 186; No 5574/72, Dec. 21.3.75, D.R. 3 pp. 10,

15; No. 10307/83, Dec. 6.3.84, D.R. 37 pp. 113, 120). Moreover,

domestic remedies have not been exhausted where an appeal is not

admitted because of a procedural mistake by the applicant (cf.

No. 10636/83, Dec. 1.7.85, D.R. 43 p. 171; No. 10785/84, Dec.

18.7.86, D.R. 48 p. 102).

The Commission recalls that, at his trials before the

Regional Court and the Court of Appeal, the applicant did not ask

that the four co-accused be heard as witnesses. The Supreme Court

referred to this failure when rejecting his complaint concerning

the use of that evidence.

The Commission concludes that the applicant has failed to

raise before the appropriate domestic courts, i.e. the Regional

Court and the Court of Appeal, the issue now raised before the

Commission and, by the use of the procedural means available at

his trial, to obtain the hearing of the co-accused at his trial

(cf. Eur. Court H.R., Cardot judgment of 19 March 1991, Series

A no. 200, p. 18, para. 34).

The applicant claims that he was absolved from the

obligation to raise the issue at his trial because the courts

should ex officio have called the co-accused as witnesses. The

Commission, however, does not find that an applicant is absolved

from the obligation to exhaust domestic remedies whenever a

domestic authority should act ex officio (cf. No.11244/84, Dec.

2.3.87, D.R. 55 p. 98).

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies within the

meaning of Article 26 (Art. 26) of the Convention and his

application must in this respect be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

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

Convention that two police officers took certain documents

concerning his trial from his cell, while he was interrogated in

another room by a third officer.

The Commission recalls that the domestic courts did not find

it established that these documents concerned the applicant's

defence or that the officers had in fact taken these documents

away or copied them.

The Commission, finding no indication in the case-file that

the information contained in these documents concerned the

applicant's defence or were used against the accused during the

trial, considers that the applicant has failed to substantiate

this complaint.

It follows that this complaint must be rejected under

Article 27 para. 2 (Art. 27-2) of the Convention for being

manifestly ill-founded.

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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HOOS v. THE NETHERLANDS

HOOS v. THE NETHERLANDS

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