Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20901/92

by K.W.W.

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 26 October

1994 by K.W.W. against the Netherlands and registered on 4

November 1992 under file No. 20901/92;

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 Chinese citizen born in 1946 in Po-On,

China. At the time of the introduction of the application, he was

detained in Leeuwarden, the Netherlands. Before the Commission

he is represented by Ms. G.E.M. Later, a lawyer practising in The

Hague.

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

be summarised as follows.

In August 1989 the police received information that since

March or April 1989 a large number of restaurant owners from the

Chinese community in the region of Overijssel were forced to make

payments to an identified Chinese man. i.e. the applicant. If a

restaurant owner was unwilling to pay, the state of health of the

owner's family members was mentioned in passing. The applicant's

telephone was tapped in August and September 1989. From the

tapped conversations it appeared that the applicant was not only

engaged in extortion activities but also in drug trafficking. In

the course of the preliminary judicial investigation the police

became aware that members of the Chinese community were terrified

of the applicant's group and noted that a number of them could

by no means be persuaded to make any formal statement to the

police for fear of reprisals.

The applicant, together with four other suspects, was

arrested on 18 October 1989 and detained on remand. He was

charged with multiple extortion, various drug offences and

participation in an organisation whose aim is the commission of

offences and summoned to appear before the Regional Court

(Arrondissementsrechtbank) of Almelo on 23 January 1990.

On 4 January 1990 several Chinese restaurant owners called

the police and informed the police that the applicant had called

them from the remand centre at Zutphen telling them in couched

terms that it would be better if they would refrain from making

any statements against the applicant.

Following adversarial proceedings in which the applicant was

represented by a lawyer, the Regional Court of Almelo convicted

the applicant on 30 January 1990 of (a) multiple participation

in the commission of extortion, (b) various drugs offences and

(c) participation in an organisation whose aim is the commission

of offences within the meaning of Section 140 para. 1 of the

Criminal Code (Wetboek van Strafrecht) and sentenced him to ten

years' imprisonment.

The Regional Court based its conviction on, inter alia, the

statements made to the police by five owners of Chinese

restaurants and by three family members of the restaurant owners.

The restaurant owners, among whom K. and his business partner Y.,

stated that they had paid sums varying from 5,000 to 13,000 Dutch

guilders to the applicant under threats of violence. A waiter

stated that his employer had to pay 10,000 Dutch guilders,

whereas he himself was invited by the applicant to engage in drug

trafficking. The Regional Court also used in evidence the written

records of a number of tapped telephone conversations from the

applicant's telephone, the statements of the applicant, seven of

his co-accused and a police officer who had witnessed that K.

gave the applicant an envelope allegedly containing 5,000 Dutch

guilders. The judgment further refers to a police report stating,

inter alia, that many restaurant owners felt seriously threatened

and refused to make a formal statement before the police out of

fear of reprisals and that on 4 January 1990 the applicant had

telephoned from the detention centre, where he was held on

remand, to several restaurant owners, warning them in couched

terms not to testify against him.

The applicant appealed to the Court of Appeal (Gerechtshof)

of Arnhem. At the hearing of 4 October 1991, the applicant

produced a written statement signed by K., in which the latter

withdrew his incriminating statement made before the police. The

applicant, who showed the statement to the Court but refused to

hand it over, explained that he himself had drafted the

statement. His wife had brought the statement to K. with the

applicant's request to sign it if he agreed that he had never

been extorted but rather had lent a sum of money to the

applicant. The applicant's wife had returned the statement after

K. had signed it. The applicant subsequently requested the Court

to examine K. as a witness. The Court of Appeal rejected this

request, considering:

"dat het hof het verzoek afwijst, nu niet is te verwachten

dat het nader horen van de getuige K. nieuwe, relevante

gegevens zou kunnen opleveren ten behoeve van de

verdediging van de verdachte, terwijl het horen van de

getuige K. ter terechtzitting door die getuige als

uitermate belastend zal worden ervaren.

Het hof is van oordeel dat verdachte, door het

achterwege blijven van oproeping van de getuige K.

redelijkerwijze niet in zijn verdediging kan worden

geschaad, temeer nu kennelijk zijdens verdachte pogingen

deze getuige te beïnvloeden zijn aangewend en diens - als

aangever bij de politie afgelegde - verklaring in

hoofdzaken overeenstemt met die van de eveneens als

aangever door de politie gehoorde Y."

"that the Court rejects the request, since it is not to be

expected that the further examination of the witness K.

could produce new and relevant facts for the accused's

defence, whereas the hearing of the witness K. before the

Court would be experienced as extremely cumbersome by this

witness.

In the Court's opinion one cannot reasonably find that

the accused has been prejudiced in his defence by the

failure to summon the witness K., the more so as apparently

attempts have been made from the side of the accused to

influence this witness and as his statements - which he

made before the police - largely coincide with those of

Y., who has likewise been heard by the police."

Following adversarial proceedings, in which the applicant

was represented by a lawyer, the Court of Appeal, in its judgment

of 18 October 1991, quashed the judgment of 30 January 1990,

convicted the applicant of extortion, of having violated the

Opium Act and of participation in an organisation whose aim is

the commission of offences within the meaning of Section 140

para. 1 of the Criminal Code and sentenced him to ten years'

imprisonment. The Court of Appeal based its conviction on the

same evidence as the Regional Court, with some minor exceptions.

The applicant appealed in cassation to the Supreme Court

(Hoge Raad). Referring to the Kostovski, Windisch, Delta and

Isgrò cases, he argued that Article 6 para. 3(d) of the

Convention had been violated as the Court of Appeal had rejected

his request to hear K.. The applicant contested the reasoning of

the Court of Appeal, that the rights of the defence were not

impaired by the failure to summon the witness K., on the ground

that it disregarded the fact that the defence had not been able

to question K. at any stage of the proceedings.

In its judgment of 28 April 1992, the Supreme Court rejected

the appeal in cassation. It held that the rejection of the

request to hear K. was not unlawful, noting that the Court of

Appeal had apparently considered that the only purpose of this

hearing would be that K. would confirm the contents of the

statement which was shown to the Court but not handed over, and

that the Court of Appeal apparently had not considered K.'s

written statement credible as it differed from his earlier

statement to the police and as the statement had been drafted by

the accused himself, who had his wife bring this statement to K.

in order to have it signed by the latter.

COMPLAINTS

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

of the Convention that the Court of Appeal rejected his request

to hear K., whereas the defence had not been able to question him

at any stage of the proceedings.

2. The applicant further complains under Article 6 para. 3 (b)

of the Convention that he had inadequate facilities for the

preparation of his defence.

THE LAW

The applicant states that the domestic courts have violated

Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention

by rejecting his request to examine K. He also invokes Article

6 para. 3 (b) (Art. 6-3-b) of the Convention.

Article 6 (Art. 6) of the Convention, insofar as relevant,

provides:

"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 time and 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, 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).

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. 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. 4.7.79, 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.

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 as evidence of statements obtained at

the stage of the police inquiry and the judicial investigation

is not in itself inconsistent with paragraphs 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 he was

making his statements or at a later stage of the proceedings (cf.

Eur. Court H.R., Saïdi judgment of 20 September 1993, to be

published in Series A no. 261-C, para. 43).

However, Article 6 para. 3 (d) (Art. 6-3-d) does not give

an accused an unlimited 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. 9.10.86, D.R. 49 p. 86).

The Commission notes that the Court of Appeal was confronted

with a contradiction between K.'s initial incriminating

statement, which had been confirmed by the statement of his

business partner Y. and a statement of a police officer who had

witnessed that K. gave an envelope to the applicant, on the one

hand, and on the other hand K.'s subsequent written declaration

withdrawing his initial statement, which the applicant presented

at the hearing on 4 October 1991. The Commission further notes

that, apart from K., the applicant did not request that any other

witnesses, who had made incriminating statements, be examined by

the Court of Appeal.

Noting that K.'s written statement had been drafted by the

applicant himself and had been brought to K. by his wife in order

to have it signed by K., the Commission does not find that the

Court of Appeal's reasoning in respect of the applicant's request

to have K. examined before the Court of Appeal can be regarded

as arbitrary or unreasonable in the circumstances of the present

case.

As to the fairness of the proceedings taken as a whole the

Commission, noting that the applicant was convicted following

adversarial proceedings in which he was represented by a lawyer,

finds that the applicant was provided with sufficient time and

facilities for the preparation of his defence and was provided

with ample opportunity to state his case and to challenge the

evidence against him.

The Commission, observing that the applicant's conviction

was not solely based on K.'s initial statement but also on a

large number of other evidence against him, finds no indication

that the criminal proceedings against the applicant were not in

conformity with the requirements of Article 6 (Art. 6) of the

Convention.

It follows that the application must be rejected under

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

manifestly ill-founded.

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)

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K.W.W. v. THE NETHERLANDS

K.W.W. v. THE NETHERLANDS

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