Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21645/93

by R.B.

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 1 April 1993

by R.B. against the Netherlands and registered on 8 April 1993

under file No. 21645/93;

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 national, born in 1961, and resides

at Zoetermeer, the Netherlands. Before the Commission he is

represented by B.R. Angad Gaur, a lawyer practising in The Hague.

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

be summarised as follows.

On 14 February 1990 the applicant and D.R. were arrested by

the Municipal Police of Utrecht on the suspicion of dealing in

drugs. On the occasion of his arrest the applicant dropped a

plastic bag on the floor, which turned out to contain 19 small

balls (bolletjes) of cocaine. On the same day A.L. was

confronted with the applicant and subsequently with D.R. by way

of a two-way mirror. A.L. recognised both men as dealers in both

cocaine and heroin, from both of whom he had bought drugs on

several occasions. The applicant and D.R. were also confronted

with H.H. by way of a two-way mirror. H.H. recognised them as

drug dealers and stated that he had bought both cocaine and

heroin from D.R.

On 15 February 1990 the applicant stated before the police

that, together with D.R. he had bought cocaine and made small

balls of cocaine and, with the assistance of a certain J., had

sold these balls to several persons in the Utrecht shopping

centre Hoog Catharijne. D.R. made a similar declaration to the

police.

At his trial on 22 May 1990, the applicant, assisted by his

lawyer, stated that he had supplied cocaine on several occasions

between 1 January 1990 and 14 February 1990 and that on

14 February 1990 he had carried 19 balls of cocaine which he had

made with D.R. The Regional Court (Arrondissementsrechtbank) of

Utrecht, in its judgment of 5 June 1990, convicted the applicant

of supplying and possessing of drugs and sentenced him to nine

months' imprisonment, of which three months suspended pending a

probation period of two years. The Regional Court based its

conviction on the applicant's statements before the police and

the Regional Court, the statements of D.R., A.L. and H.H. before

the police, the police reports of the applicant's arrest and

reports by the forensic laboratory. The applicant filed an

appeal with the Court of Appeal (Gerechtshof).

In the course of the hearing of 19 September 1991 before the

Court of Appeal the applicant, assisted by his lawyer, withdrew

his statements before the police and the Regional Court and

denied having supplied and sold cocaine. He alleged that the

cocaine found on him was intended for his own personal use and

requested that A.L. and H.H. be examined before the investigating

judge (rechter-commissaris).

On 3 October 1991 the Court of Appeal upheld the judgment

of the Regional Court. It rejected the applicant's request to

have A.L. and H.H. examined before the investigating judge,

considering that it was sufficiently informed about the applicant

and that it was not necessary to examine these witnesses.

The applicant's appeal in cassation was rejected on 13

October 1992 by the Supreme Court (Hoge Raad). The Supreme Court

found that the Court of Appeal had lawfully rejected the request

to have A.L. and H.H. examined, whereas the Supreme Court could

not examine the merits of this request, since a decision on the

necessity of hearing witnesses falls within the competence of the

judge dealing with the facts of the case.

As to the applicant's complaint that he should have been

given a conditional sentence in view of, inter alia, his personal

situation and the fact that it was his first offence, the Supreme

Court considered that such a complaint could not be raised in an

appeal in cassation.

COMPLAINTS

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

of the Convention, that he did not receive a fair trial in that

the Court of Appeal refused his request to have A.L. and H.H.

examined by the investigating judge and that the Court of Appeal

and the Supreme Court did not properly respond to his argument

that the sentence imposed should be made conditional.

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 did not receive a

fair trial in that the Court of Appeal refused his request to

have A.L. and H.H. examined by the investigating judge and that

the courts did not properly respond to his argument relating to

the sentence imposed.

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:

(...)

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;

(...)."

2. 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. 10.3.89, D.R. 59, p. 111).

3. The applicant complains that he did not receive a fair trial

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

the Court of Appeal rejected his request that A.L. and H.H.,

whose statements were used in evidence, should be examined by the

investigating judge.

The guarantees in paras. 2 and 3 (d) of Article 6

(Art. 6-2, 6-3-d) of the Convention are specific aspects of the

right to a fair trial set forth in paragraph 1. The Commission

will consider the complaints under Article 6 paras. 1, 2 and 3

(Art. 6-1+6-2+6-3) taken together (cf. mutatis mutandis, 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. Eur. Court H.R., Saïdi judgment of 20 September

1993, to be published in Series A no. 261-C, para. 43).

The Commission notes that the applicant declared before the

police and the Regional Court that he had supplied cocaine on

several occasions between 1 January 1990 and 14 February 1990 and

that on 14 February 1990 he had carried 19 balls of cocaine,

which declaration was supported by the statements of D.R., A.L.

and H.H. and the police reports on his arrest, and that he

withdrew his declaration before the Court of Appeal in respect

of the supplying and selling of cocaine.

The Commission recalls that, 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 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).

The Commission notes that the applicant and his lawyer were

given ample opportunity before the Court of Appeal to challenge

the statements of D.R., A.L. and H.H. and the other evidence

before the Court and to convince the Court of Appeal of the

necessity to have A.L. and H.H. examined.

Recalling that it is in principle within the discretionary

power of the national courts to establish whether the hearing of

witnesses is likely to be of assistance for discovering the truth

and, if not, to decide against the calling of such witnesses (cf.

No. 8231/78, Dec. 6.3.82, D.R. 28 p. 5) and noting that the

applicant's conviction was, inter alia, based on his declarations

before the police and the Regional Court that he had in fact

committed the acts he was charged with, the Commission cannot

find that the rejection of the applicant's request to examine

A.L. and H.H. deprived him of a fair hearing as required by

Article 6 (Art. 6).

It follows that this part of the application is manifestly

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

of the Convention.

4. As to the applicant's complaint that the domestic courts did

not properly respond to his argument in respect of the sentence

imposed by the Regional Court, the Commission finds no appearance

of a violation of the Convention.

It follows that this part of 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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R.B. v. THE NETHERLANDS

R.B. v. THE NETHERLANDS

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