Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16779/90

by Joseph Ludwig PLASMAN

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 30 June 1993, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

Mr. K. ROGGE, Secretary to the Second 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 6 June 1990 by

Joseph Ludwig PLASMAN against the Netherlands and registered on 22 June

1990 under file No. 16779/90;

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 1966. At the time of

the introduction of the application he was detained in Amsterdam and

subsequently transferred to a prison in Zutphen. Before the Commission

he is represented by Mr. G.G.J. Knoops, a lawyer practising at

Eindhoven.

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

summarised as follows.

On 21 January 1988 the applicant was summoned to appear before

the Dordrecht Regional Court (Arrondissementsrechtbank) on 4 February

1988 on charges of extortion committed on 22 April 1987 in Zwijndrecht,

extortion committed on 15 December 1986 in St Willebrord, robbery

committed on 12 June 1986 in Tilburg and drug related robbery committed

on 28 June 1987 in Hilversum. P., a co-suspect, had made declarations

to the police on 8 November, 17 November, 9 December and 10 December

1987 and to the Investigating Judge (Rechter-Commissaris) on 22

December 1987 and on 12 February 1988 in the presence of his lawyer.

The applicant denied all the charges.

On 17 March 1988 the Dordrecht Regional Court convicted the

applicant of all the offences he was charged with and sentenced him to

eight years' imprisonment. The conviction of extortion in Zwijndrecht

was based on six police procès-verbaux containing the declarations of

four eye witnesses, one of whom had recognised the applicant when

confronted with him by means of a see-through mirror, the declarations

of P. and the investigating officer's own findings. The conviction of

extortion in St Willebrord was based on nine police procès-verbaux

containing the declarations of five witnesses, the declarations of P.

and P.'s sister and the investigating officer's own findings. The

conviction of robbery in Tilburg was based on two police procès-verbaux

containing the declarations of one witness, of P. and the investigating

officer's own findings. The conviction of robbery in Hilversum was

based on eight police procès-verbaux containing the declarations of a

man who was to deliver hashish to the applicant, the declarations of

this man's brother and of an eye witness, the investigating officers'

own findings, the declarations of two friends of the applicant, the

applicant's declarations to the Investigating Judge and his

declarations at the hearing before the Regional Court.

The applicant filed an appeal to the Court of Appeal

(Gerechtshof) of The Hague. At the hearing on 14 November 1988, the

applicant requested the Court to hear P. and another witness. P.

stated that he remembered very little of his previous declarations,

added that he did not wish to make any declaration and invoked in his

capacity of suspect his right to remain silent. The applicant's

representative further stated that "a photofit picture would be made

after Van E.'s statement. It is not in the case-file. I consider it

to be very important that this picture be shown to your Court."

The Court of Appeal renounced a further hearing of P. on the

ground that P.'s interests as a witness and suspect of all the charges

except the first, outweighed the applicant's interests. It held in

addition that the applicant did have several opportunities during the

preliminary investigations and subsequently before the Court of Appeal

to question P., "although the result was unsatisfactory for the

defence". The applicant however persisted in his request to hear P.

with regard to certain details.

On 28 November 1988 the Court of Appeal convicted the applicant

of all charges except the charge of robbery in Hilversum and sentenced

him to six years' imprisonment and a fine of 100.000,- Dutch guilders

to be replaced by five months' imprisonment in case of non payment.

The Court of Appeal based its finding of guilt on the evidence before

the Regional Court.

On 15 September 1989 the applicant filed a plea of nullity with

the Supreme Court (Hoge Raad). He complained that the Court of Appeal

had granted P. a general right to remain silent whereas Dutch law

(Article 219 of the Code of Criminal Procedure - Wetboek van

Strafvordering) allows a witness the right to remain silent concerning

a specific question; that the declaration of P.'s sister used as

evidence by the Court of Appeal could not be considered as a statement

about facts or circumstances observed or experienced by her; and

finally that the Court of Appeal had failed to deal with the

applicant's request to have a certain photofit picture (montagefoto),

made after the testimony of one of the witnesses and apparently used

by the police as means of investigation, shown to the Court by the

prosecution.

On 16 January 1990 the Supreme Court rejected the applicant's

plea of nullity on the ground that a reasonable interpretation of

Article 219 of the Code of Criminal Procedure implies that a witness,

who is a suspect, can be granted a general right to remain silent.

With regard to the second ground, the Supreme Court found that the

Court could, as it had done, use P.'s sister's declaration as evidence.

As to the applicant's request to have a photofit picture shown to the

Court of Appeal, the Supreme Court considered that the Court of Appeal

did not need to consider this statement as a request.

COMPLAINTS

1. The applicant complains that, by granting witness P. a general

right to remain silent, the Court of Appeal wrongfully applied Article

219 of the Code of Criminal Procedure and consequently infringed his

right to a fair hearing including the equality of arms. He submits

that in these circumstances he did not have an adequate opportunity to

question witness P. He invokes Article 6 paras. 1 and 3 (d) of the

Convention.

2. The applicant also complains that he did not have a fair trial

since the Court of Appeal failed to deal with his request to order the

prosecution to produce the photofit picture. He submits in particular

that, as this picture was not made available to the defence, the

equality of arms has been violated. He relies on Article 6 para. 1 of

the Convention.

THE LAW

1. The applicant complains that, by granting witness P. a general

right to remain silent, the Court of Appeal wrongfully applied Article

219 of the Code of Criminal Procedure and consequently infringed his

right to a fair hearing including the equality of arms. He submits

that in these circumstances he did not have an adequate opportunity to

question witness P. He invokes Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d) of the Convention which reads, insofar as relevant,

as follows:

"1. In the determination ... of any criminal charge against him,

everyone is entitled to a fair and public hearing ... by an

independent and impartial 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; ...".

With regard to the decision of the Dutch courts in the present

case to allow the witness P. to remain silent pursuant to Article 219

of the Code of Criminal Procedure, the Commission recalls that, in

accordance with Article 19 (Art. 19) of the Convention, its only task

is to ensure the observance of the obligations undertaken by the

Parties in the Convention. In particular, 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

and freedoms set out in the Convention. The Commission refers, on this

point, to its established case-law (see e.g. No. 458/59, Dec. 29.3.60,

Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp.

71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45). Accordingly,

it cannot examine the applicant's complaint that the Court of Appeal

wrongly applied Dutch law in this instance.

However, it may examine the applicant's complaint that he was

unable to question P. before the Court of Appeal, because this is a

matter falling within the scope of the guarantees laid down in para.

3 of Article 6 (Art. 6-3) of the Convention, which guarantees are

specific aspects of the right to a fair hearing ensured by para. 1 of

this provision. The Commission will examine the complaint under the

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

19 February 1991, Series A no. 194-A, p. 12, para. 31).

According to the case-law of the European Court of Human Rights,

all evidence must in principle be adduced in the presence of the

accused at a public hearing with a view to adversarial argument, but

this does not mean that a statement from a witness must always be made

in court and in public if it is to be admitted in evidence (Eur. Court

H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10, para.

27). The defendant must be given an adequate and proper opportunity

to challenge and question the witnesses against him (ibid.).

The Commission further recalls that it is normally for the

national courts to decide whether it is necessary or advisable to hear

a witness (cf. No. 10563/83, Dec. 5.7.85, D.R. 44 p. 113, and Eur.

Court H.R., Bricmont judgment of 7 July 1989, Series A no. 158, p. 31,

para. 89). It also recalls that, as a rule, it is for the national

courts to assess the evidence before them (cf. Eur. Court H.R., Asch

judgment of 26 April 1991, loc. cit., p. 10, para. 26). The

Commission's task is to ascertain whether the proceedings considered

as a whole, including the way in which the evidence was taken, were

fair.

In the present case both the Regional Court and the Court of

Appeal based their decision on an extensive number of police reports

containing, inter alia, the statements of the applicant himself, and

the statements of several investigating officers, eye witnesses, P.'s

sister and P. Before the Court of Appeal P. refused to give evidence.

However, as the Court of Appeal observed, the applicant was given the

opportunity, of which he availed himself, to put questions to P. during

the preliminary investigations and on appeal. Although on the latter

occasion P. refused to answer the questions put to him, the Commission,

recalling the fundamental right of protection against self-

incrimination (see K. v. Austria, Comm. Rep. 13.10.92, para. 56), finds

no indication that the procedure applied to the hearing of P. was

unfair.

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.

2. The applicant also complains that he did not have a fair trial

since the Court of Appeal failed to deal with his request to order the

prosecution to produce the photofit picture. As this picture was not

made available to the defence, the equality of arms has been violated.

He invokes Article 6 para. 1 (Art. 6-1) of the Convention.

The Commission notes that the Supreme Court dismissed this

complaint on the ground that the applicant's request constituted a

statement which the Court of Appeal did not need to consider as a

formal request. Moreover, there is no indication in the case-file to

the effect that the photofit picture at issue was used as evidence by

the Dutch courts nor that it had any bearing on the assessment of the

applicant's guilt.

It follows that this part of the application is also manifestly

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

Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to President of

the Second Chamber the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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PLASMAN v. THE NETHERLANDS

PLASMAN v. THE NETHERLANDS

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