AS TO THE ADMISSIBILITY OF

                      Application No. 18613/91

                      by H.

                      against Belgium

      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 11 June 1991 by

H. against Belgium and registered on 29 July 1991 under file No.

18613/91;

      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 Belgian citizen, born in 1940 and residing at

Antwerp, Belgium. He is a notary public by profession. Before the

Commission he is represented by Mr. H. Vandenberghe, a lawyer

practising in Brussels.

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

summarised as follows.

      As suspicions had arisen that the applicant and eight other

persons had been involved in fraud and related offences in a certain

set of international financial operations, the Procureur général's

Department (Openbaar Ministerie) decided to open an investigation.

Since one of the suspects was a judge, the special proceedings referred

to in Sections 479ff of the Code of Criminal Procedure (Wetboek van

Strafvordering), which contain rules on proceedings against persons who

benefit from an exemption of jurisdiction, were applied.  Section 479

of the Code of Criminal Procedure gives the Court of Appeal (Hof van

Beroep) jurisdiction in proceedings against judges, on a summons issued

by the Procureur général (Procureur-generaal) attached to the Court of

Appeal.

      On 5 April 1988 the Antwerp Court of Appeal's Indictments Chamber

(Kamer van Inbeschuldigingstelling van het Hof van Beroep), in

proceedings concerning the review of the arrest warrant, dismissed the

applicant's complaint that he had been refused access to the case-file.

After the close of the investigation the defence was granted access.

      On 11 March 1988 the Procureur général's Department requested the

President of the Court of Appeal (Hof van Beroep) of Antwerp to appoint

an investigating judge (onderzoeksrechter). On 16 March 1988 the

President appointed a judge of the Court of Appeal as investigating

judge.

      Following the investigation the Procureur général's Department

brought criminal proceedings against the applicant and five other

suspects.

      In its decision of 15 September 1989 the Antwerp Court of

Appeal's Indictments Chamber rejected the applicant's request to put

a preliminary question (prejudiciële vraag) on the constitutionality

of the proceedings at issue to the Court of Arbitration (Arbitragehof),

considering that this request was based on factually and legally

incorrect assumptions. The Indictments Chamber considered that the

facts at issue fell in the category of felony but that the sentence

should be one for a misdemeanour because of mitigating circumstances.

      By summons of 5 October 1989 the applicant and the five other co-

accused, including the judge, were charged with fraud, forgery and use

of forged documents and summoned to appear before the Court of Appeal

of Antwerp.

      By letter of 6 October 1989 the Procureur général informed the

applicant's lawyer that the prosecution would summon an expert, and

that if the applicant wished the prosecution to summon witnesses, he

should indicate their names and addresses so that they could be

summoned to appear.

      By letter of 20 November 1989 the applicant's lawyer informed the

Procureur général that, in the applicant's opinion, it was for the

prosecution to summon witnesses whose evidence it considered relevant.

      By letter of 10 January 1990 the applicant's lawyer requested the

Procureur général's Department to inform him whether the prosecution

would summon as witnesses those persons whose declarations it would use

against the applicant. By letter of 15 January 1990 the Procureur

général informed the applicant's lawyer that he had no intention to

summon other persons than the one mentioned in his letter of 6 October

1989, unless he would be explicitly requested to do so, which at that

moment had not been the case.

      In a memorandum of 9 February 1990, sent to the applicant's

lawyer, the Procureur général's Department referred to a number of

persons whose statements it would use against the applicant.

      The Court of Appeal joined the proceedings against the six

accused, since they concerned a set of interrelated facts. Between 19

February 1990 and 6 March 1990 several hearings before the Court of

Appeal took place. After having considered numerous documents, and

after having heard the accused and the expert for the prosecution, the

Court of Appeal by judgment of 11 June 1990 convicted the six accused.

Taking into consideration that the applicant had not acted in his

capacity of notary public, the Court convicted the applicant of fraud,

forgery and the use of forged documents and sentenced him to three

years' imprisonment and a fine of 180,000 Belgian Francs.

      Referring to the Indictments Chamber's reasoning on this point,

the Court of Appeal rejected the applicant's renewed request to put a

preliminary question to the Court of Arbitration. The Court also

rejected the applicant's complaint that, in view of Sections 479ff of

the Code of Criminal Procedure, he could not challenge the Procureur

général's conclusion that there were sufficient elements for his

prosecution. The Court considered that in the circumstances of the

present case the Indictments Chamber did not have competence to judge

whether or not there were sufficient  elements for the applicant's

prosecution. On the same grounds the Court of Appeal rejected the

applicant's complaint concerning the Procureur général's decision to

prosecute only six of the initially nine suspects.

      The Court of Appeal rejected the applicant's complaint that the

proceedings before the Court of Appeal were unfair in respect of the

evidence and the rights of the defence.  It considered that the

applicant had had ample opportunity to consult the case-file and to

request copies;  that he had been given adequate time to seek the

assistance of a lawyer and to prepare his defence; that the conviction

was based on lawfully obtained evidence which the accused had been able

to challenge in the course of adversarial and public proceedings before

the Court;

that it is not contrary to the principle of a fair trial to read out

before the Court of Appeal statements contained in the case-file

without the authors of these statements being present in person before

the Court; that the applicant had been given the opportunity to put

questions to the expert heard by the Court; that there was equality of

arms between the prosecution and the defence in respect of the

evidence;  that, before the trial started, the Procureur général's

Department had informed the accused of the statements it would use as

evidence and had invited them to name any persons they wished to summon

in order to hear them before the Court; that the applicant had failed

to avail himself of this opportunity; that during the examination of

the evidence before the Court of Appeal the applicant had had the right

to request the appearance before the Court of authors of statements

submitted as evidence, but that he had only formulated such a request,

however without mentioning specific names, in his final submissions to

the Court of Appeal of 6 March 1990; that the applicant had had the

opportunity before the Court of Appeal to challenge the findings of the

expert, appointed by the investigating judge in order to examine the

complicated financial methods used by the accused, and that the

applicant had failed to request the appointment of a counter expert;

and that the applicant's allegation that the Judicial Police

(Gerechtelijke Politie) had possibly drafted confidential reports for

the Procureur général's Department was irrelevant as such reports did

not form part of the Court of Appeal's case-file and had not been

introduced at the trial before the Court.

      The applicant's appeal in cassation against the decision of 15

September 1989 of the Indictments Chamber and the Court of Appeal's

judgment of 11 June 1990 respectively was examined by the Court of

Cassation (Hof van Cassatie). A member of the Procureur général's

department participated in the Court of Cassation's deliberations on

the appeal.  The appeal was rejected by the Court of Cassation in its

judgment of 11 December 1990.

      In respect of the applicant's complaints under Article 6 paras.

1, 2 and 3 and Article 14 of the Convention concerning the Indictments

Chamber's decision of 15 September 1989, the Court of Cassation

considered that the Indictments Chamber had not decided on the merits;

that the applicant had no interest in challenging the Indictments

Chamber's decision to reduce the charge from a felony to a misdemeanour

because of mitigating circumstances and that he had no interest in

complaining that the Indictments Chamber had not decided whether or not

there were sufficient elements for his prosecution or that of any other

suspect, as he could challenge this and other elements and exercise his

defence rights before the Court of Appeal; that the proceedings

followed had been in conformity with the formal requirements under

Belgian law; and that the applicant's request to put a preliminary

question to the Court of Arbitration had been rightly rejected by the

Indictments Chamber on procedural grounds derived from norms which did

not form the object of the request at issue.

      As to the applicant's complaints under Article 6 of the

Convention concerning his conviction and sentence by the Court of

Appeal's judgment of 11 June 1990, the Court of Cassation considered

as baseless the applicant's allegation that he had been unable to have

examined or to examine witnesses for the prosecution and the defence.

The Court of Cassation further considered that the Court of Appeal was

at liberty to found its opinion on all lawfully obtained evidence,

which had been the subject of adversarial proceedings, and that it

could base its findings on the case-file; that no violation of Article

6 of the Convention could be derived from the fact that the

investigation by an expert in criminal cases does not take place in the

course of adversarial proceedings and that the applicant had only been

given access to his case-file at the end of the investigation; and that

the possibility that the Judicial Police had drafted reports for the

prosecution did not violate the applicant's right to a fair trial or

his defence rights, considering that such reports were not included in

the case-file and were not used by the Court of Appeal.

      The Court of Cassation also rejected the applicant's complaint

under Article 5 para. 4 and Article 6 of the Convention concerning

access to the case-file in the detention proceedings considering that

the defence he had presented to the Indictments Chamber on the question

of his detention on remand had no relation with the exercise of his

defence rights in the criminal proceedings before the Court of Appeal

and that, in view of his statement that his defence concerning his

detention on remand rested on Article 5 of the Convention, the

applicant had not substantiated that at that point in time he wished

to prepare his defence before the court examining the merits of the

case.  The Court of Cassation considered that the link between the

examination of the necessity of detention on remand and the ulterior

assessment of guilt may render a refusal to an accused to have access

to his case-file unlawful, but that this issue did not arise in the

applicant's case as the refusal does not automatically render the

proceedings on the merits before the Court of Appeal unlawful since,

before the latter proceedings started, the applicant had been given

access to his case-file.

COMPLAINTS

1.    The applicant complains under Article 5 para. 4 and Article 6

para. 1 of the Convention that by decision of 5 April 1988 the

Indictments Chamber, in the proceedings concerning the review of his

arrest warrant, rejected his complaint that he had been refused access

to his case-file. He submits that an appeal in cassation on this point

would have no chance of success in view of the Court of Cassation's

constant case-law.

2.    The applicant complains under Article 6 para. 1 and Article 14

of the Convention that the Procureur général assessed the suspicions

against him and that he was summoned directly before the Court of

Appeal by the Procureur général, instead of being committed by an

independent investigating authority. He further complains that, on the

basis of the Procureur général's request, the Indictments Chamber only

decided on the existence of mitigating circumstances in respect of six

of the nine suspects, whereas the case concerned an interrelated set

of facts.

3.    The applicant complains under Article 6 and Article 14 of the

Convention of the application of the special procedure for judges, as

set out in Sections 479ff of the Code of Criminal Procedure, which he

considers did not apply to him since he does not enjoy jurisdictional

privileges. He complains that the special procedure applied deprived

him of an appeal possibility.

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

Convention that his defence rights have not been respected in the

criminal proceedings against him.  In particular the Court of Appeal

based its finding of guilt on statements of persons who had not been

heard at the trial. He could not be expected to name the witnesses for

the prosecution and summon them to appear before the Court of Appeal.

When he did submit his request that those persons be heard whose

statements were used by the prosecution, the Court of Appeal rejected

this request.

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

the expert, as a witness for the prosecution, was placed in a more

advantageous position vis-à-vis the applicant in the proceedings

against him, since during the investigation phase the expert had access

to the case-file and was present at the questioning of the suspects and

a number of witnesses, whereas the applicant did not have access to his

case-file during the investigation and was not enabled to question the

witnesses for the prosecution before the Court of Appeal in order to

challenge their statements.

6.    The applicant complains under Article 6 of the Convention that

the prosecution had certain confidential reports by the Judicial Police

at its disposal, which were not disclosed to the defence.

7.    The applicant finally complains under Article 6 para. 1 of the

Convention that a member of the Procureur général's Department at the

Court of Cassation participated in the latter's deliberation on his

appeal in cassation.

THE LAW

1.    The applicant complains under Article 5 para. 4 and Article 6

para. 1 (Art. (5-4, 6-1) of the Convention that by decision of 5 April

1988 the Indictments Chamber in proceedings concerning the review of

his arrest warrant rejected his complaint that he was refused access

to his case-file.

      However, the Commission is not required to decide whether the

facts alleged by the applicant reveal any appearance of a violation of

these provisions since, under Article 26 (Art. 26) of the Convention,

it may only deal with the matter after all domestic remedies have been

exhausted according to the generally recognised rules of international

law, and within a period of six months from the date on which the final

decision was taken.

      The Commission recalls that the rule of exhaustion of domestic

remedies requires the exhaustion of those remedies that relate to the

breaches alleged and that are available and sufficient. It does not

require that an appeal be introduced which would have no chance of

success (cf. No. 11681/85, Dec. 11.12.87, D.R. 54 p. 101).  The

applicant states that an appeal in cassation on this point would have

no chance of success in view of the Court of Cassation's constant case-

law. The Commission notes that the applicant has not submitted any

information on the proceedings on the review of his arrest warrant and

has failed to substantiate his argument that such an appeal would be

unsuccessful.

      Even assuming that the applicant is exempted from the obligation

to exhaust domestic remedies in view of the Court of Cassation's case-

law (cf. Eur. Court H.R., Lamy judgment of 30 March 1989, Series A no.

151, p. 11, paras. 14-15), the Commission notes that the final decision

on the applicant's arrest warrant was taken on 5 April 1988 by the

Indictments Chamber, whereas the application was introduced on 11 June

1991, which is more than six months later.  The Commission observes

that the Court of Cassation referred to this complaint in its judgment

of 11 December 1990 as being not relevant for the determination of the

appeal in cassation against the conviction.  This judgment, therefore,

cannot be taken into consideration for the calculation of the six

months time-limit provided for in Article 26 (Art. 26).

      In these circumstances the Commission, assuming that the

applicant is exempted from the obligation to exhaust domestic remedies,

finds that he has failed to submit this complaint to the Commission

within six months after the final decision.  This complaint must

therefore be rejected in accordance with Article 27 para. 3

(Art. 27-3) of the Convention.

2.    The applicant complains under Article 6 para. 1 and Article 14

(Art. 6-1, 14) of the Convention that the Procureur général assessed

the suspicion against him and that he was summoned directly before the

Court of Appeal by the Procureur général, instead of being committed

by an independent investigating authority.  Moreover, on the basis of

the Procureur général's request, the Indictments Chamber only

considered mitigating circumstances in respect of six of the nine

suspects, whereas the case concerned an interrelated set of facts.

      The applicant also complains under Article 6 and Article 14

(Art. 6, 14) of the Convention of the application of the special

procedure for judges, as set out in Sections 479ff of the Code of

Criminal Procedure, which he considers did not apply to him since he

does not enjoy jurisdictional privileges. He complains that the special

procedure applied deprived him of an appeal possibility.

      The Commission notes that the charges against the applicant were

not determined by the Procureur général or the Indictments Chamber but

by the Court of Appeal following the applicant's trial before the

Court.

      With regard to the procedure before the Court of Appeal,

including the application of Sections 479ff 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 procedure pursuant to Sections 479ff of

the Code of Criminal Procedure was wrongly applied in his case.

      As to the applicant's complaint that the application of this

procedure deprived him of an appeal possibility as he was directly

committed to the Court of Appeal, the Commission recalls its constant

case-law according to which Article 6 para. 1 (Art. 6-1) of the

Convention does not guarantee a right to appeal (cf. No. 13135/87, Dec.

4.7.88, D.R. 56 p. 268 and No. 11941/86, Dec. 5.10.88, D.R. 57 p. 100).

The Commission also notes that the applicant had the possibility to

file an appeal in cassation, of which possibility he availed himself.

It follows that the above complaints raise no issue under Article 6

(Art. 6) of the Convention.

      Article 14 (Art. 14) has no independent existence in that it

covers only "rights and freedoms recognised in the Convention" (cf.

Eur. Court H.R., Belgian Linguistic judgment of 23 July 1968, Series

A No. 6, p. 3, para. 9).  Having found no issue under Article 6

(Art. 6) with regard to the application of Sections 479ff of the Code

of Criminal Procedure the Commission, therefore, also finds no issue

of discrimination, contrary to Article 14 (Art. 14), in the enjoyment

of any of the applicant's rights under Article 6 (Art. 6) with regard

to the above complaints.

      It follows that these complaints are manifestly ill-founded

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

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

(Art. 6-1, 6-3) of the Convention that his defence rights have not been

respected in the criminal proceedings against him in that the Court of

Appeal based its finding of guilt on statements of persons who had not

been heard by the Court of Appeal. The applicant submits that he could

not be expected to name the witnesses for the prosecution and summon

them to appear before the Court of Appeal and that, when he did submit

his request that those persons be heard whose statements were used by

the prosecution at the trial, the Court of Appeal rejected this

request.

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

provides as follows:

      "1.  In the determination of ... any criminal charge

      against him, everyone is entitled to a fair and public

      hearing ...

      (...).

      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;

      ..."

      The applicant's complaint that in the proceedings before the

Court of Appeal his defence rights were not respected is a matter

falling within the scope of the guarantees laid down in para. 3 of

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

aspects of the right to a fair trial 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).

      The Commission recalls that Article 6 (Art. 6) does not grant the

accused an unlimited right to secure the appearance of witnesses in

court. 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).  The Commission further

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, Series A No. 203, p. 10, para. 26). The Commission's task is to

ascertain whether the proceedings considered as a whole, including the

way the evidence was taken, were fair.

      The Commission finally recalls that the right to a fair hearing,

which includes the principle of equality of arms, entails that everyone

who is a party to the proceedings shall have a reasonable opportunity

of presenting his case to the court under conditions which do not place

him at substantial disadvantage vis-à-vis his opponent (cf. No.

10938/84, Dec. 9.12.86, D.R. 50 p. 98 at p. 115).

      In the present case, the Commission notes that the Court of

Appeal based the applicant's conviction on, inter alia, statements made

by witnesses before investigating authorities.  These statements were

contained in the case-file, which could be consulted by the defence as

from the close of the investigation.  The case-file also contained, and

the Court of Appeal also considered, the findings of an expert and

statements by the accused. Before the hearings before the Court of

Appeal the applicant was informed by the prosecution about the

statements of witnesses on which it intended to rely at the hearings

and he was given the opportunity to summon these witnesses, of which

possibility he did not avail himself at that stage, and to challenge

the statements by the expert, who gave evidence before the Court of

Appeal, and the other evidence before the Court, of which opportunity

he availed himself.

      Only in his final submissions of 6 March 1990 before the Court

of Appeal the applicant requested that the witnesses, whose statements

were relied on by the prosecution, be heard by the Court. The

Commission does not find that the Court's refusal of this request

violated the applicant's right to a fair trial given that he had failed

to make such a request at an earlier stage of the trial.

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

(Art. 6-1, 6-3-d) that the expert appointed during the investigation

was placed in a more advantageous position vis-à-vis the defence, since

during the investigation he had access to the case-file and was present

at the questioning of the suspects and a number of witnesses, whereas

the applicant did not have access to his case-file during the

investigation and was not enabled to question the witnesses for the

prosecution before the Court of Appeal in order to challenge their statements.

      The Commission recalls that the applicant, after the closure of

the investigation, had full access to his case-file and that he was

given every opportunity to challenge the findings of the expert in the

course of the proceedings before the Court of Appeal.

      It follows that this complaint is also manifestly ill-founded

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

5.    With regard to his trial the applicant finally complains under

Article 6 (Art. 6) that the prosecution had at its disposal

confidential reports by the Judicial Police, which were not disclosed

to the defence.

      The Court of Cassation held on this point that the possibility

that the Judicial Police drafted reports for the prosecution did not

violate the applicant's right to a fair trial considering that such

reports were not included in the case-file and were not used by the

Court of Appeal.

      The Commission considers that the applicant has failed to show

that such confidential reports by the Judicial Police were relied on

by the Procureur général's Department and taken into consideration by

the domestic courts in the determination of the criminal charges

against him.

      It follows that this complaint is again manifestly ill-founded

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

6.    With regard to the proceedings before the Court of Cassation the

applicant complains under Article 6 para. 1 (Art. 6-1) that a member

of the Procureur général's Department at the Court of Cassation

participated in the Court's deliberations.

      On this issue, the Commission refers to the judgment of the

European Court of Human Rights in the Borgers case (judgment of 30

October 1991, Series A No. 214-B).  It decides to give notice of this

complaint to the respondent Government in accordance with Rule 48 para.

2(b) of its Rules of Procedure and to invite them to submit their

observations in writing on the admissibility and merits this part of

the application.

      For these reasons, the Commission, unanimously

      DECIDES TO ADJOURN the examination of the applicant's complaint

      concerning the proceedings before the Court of Cassation;

      DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber       President of the Second Chamber

        (K. ROGGE)                           (S. TRECHSEL)