Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17647/91

by J.J.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 5 May 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

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 31 August 1990 by

J.J. against the Netherlands and registered on 11 January 1991 under

file No. 17647/91;

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 Dutch national, born in 1942, and resides in

W., the Netherlands.

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

summarised as follows.

On 12 March 1986 the applicant and an accomplice were arrested

by a police patrol in a public telephone booth on the suspicion of

attempting to steal the contents of the coin box. The applicant was

detained in police custody in a cell, which, according to the

applicant, was unsuitable for detention purposes in view of the

temperature and the poor sanitary conditions. His shoes and coat had

been taken away for examination and were not returned despite several

requests of the applicant. After two days the applicant was transferred

to another cell.

On 15 December 1986 the Chief Public Prosecutor (Hoofdofficier

van Justitie) rejected the applicant's complaints about the conditions

in the first cell in which he was detained following his apprehension

and his allegations of incorrect behaviour of police officers during

his detention in police custody.

In his report of 8 September 1987 the National Ombudsman

concluded that the applicant's complaint concerning the cell in which

he had been placed on 12 March 1986 were well-founded.

On 16 March 1987 the Magistrate (Politierechter) of the Roermond

Regional Court (Arrondissementsrechtbank) convicted the applicant of

wilful destruction and attempted theft and sentenced him to a fine of

700 Dutch guilders or, alternatively, two weeks' imprisonment.

Following the applicant's appeal, the Court of Appeal

(Gerechtshof) of 's-Hertogenbosch in its judgment of 27 April 1988

quashed the judgment of 16 March 1987. After having considered the

statements by the police officers, who arrested and later interrogated

the applicant and his accomplice, a statement made before the police

by a PTT serviceman, the accomplice's full confession before the

police, a statement by a police officer who had investigated the

working method and traces in respect of the attempted theft of the coin

box contents and after having heard the applicant and his lawyer, the

Court convicted the applicant of attempted burglary and sentenced him

to four weeks' imprisonment with deduction of the time of his detention

on remand and of which two weeks were suspended pending a probation

period of two years.

The applicant's appeal in cassation was dismissed by the Supreme

Court (Hoge Raad) on 22 May 1990. The Supreme Court rejected the

applicant's complaint that the Court of Appeal had unjustly admitted

a certain conclusion by a police investigator contained in a police

statement as evidence. This statement read inter alia:

"Uit sporen en verdere aanwijzingen is met enige

waarschijnlijkheid de navolgende werkwijze van de daders

vast te stellen."

"From traces and further indications the following working

method of the perpetrators can be determined with some

probability."

The Supreme Court considered that under Dutch law the Court of

Appeal could admit and use as evidence a conclusion of a police officer

as to the perpetrators' probable operating method based on traces and

indications the officer himself had found.

COMPLAINTS

1. The applicant complains that the conditions under which he was

detained in police custody constituted a treatment contrary to Article

3 of the Convention.

2. The applicant complains under Article 6 para. 2 of the Convention

that his conviction was based on a particular police officer's

conclusion founded on "probability". In the applicant's opinion this

conclusion should not have been admitted as evidence by the Court of

Appeal and he is therefore of the opinion that his guilt has not been

proved "according to law".

THE LAW

1. The applicant complains that the conditions under which he was

detained in police custody constituted a treatment contrary to Article

3 (Art. 3) of the Convention which prohibits torture and inhuman or

degrading treatment or punishment.

However, the Commission is not required to decide whether the

facts alleged by the applicant with regard to his custody disclose any

appearance of a violation of the Convention, as Article 26 (Art. 26)

of the Convention provides that the Commission "may only deal with the

matter after all domestic remedies have been exhausted (...) and within

a period of six months from the date on which the final decision was

taken". Even assuming that the applicant has exhausted all domestic

remedies and that the Ombudsman's report of 8 September 1987 can be

considered as the final decision regarding this complaint, the

Commission notes that the application was submitted on 31 August 1990,

which is more than six months later.

Furthermore, an examination of the case does not disclose the

existence of any special circumstances which might have interrupted or

suspended the running of that period.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

2. The applicant further complains that his conviction is based on

a particular police officer's conclusion founded on "probability"

which, in the applicant's opinion, should not have been admitted as

evidence by the Court of Appeal. The applicant relies in this respect

on Article 6 para. 2 (Art. 6-2) of the Convention, which reads as

follows:

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The Commission has examined the above complaint both under para.

2 and under para. 1 of Article 6 (Art. 6-1, 6-2) of the Convention. The

latter paragraph provides, insofar as relevant:

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

everyone is entitled to a fair (...) hearing (..)."

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 Contracting States 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 (cf. No. 11941/86, Dec. 5.10.88, D.R. 57 p. 100).

The Commission notes under Article 6 para. 1 (Art. 6-1) of the

Convention that the applicant's conviction was in part based on the

particular police investigator's declaration complained of and that the

applicant and his lawyer were heard by the Court of Appeal on which

occasion the applicant could challenge the declaration at issue and the

other evidence against him, i.e. the statements by the police officers,

who arrested and later interrogated the applicant and his accomplice,

the statement made before the police by a PTT serviceman and the

accomplice's full confession before the police.

The Commission further notes that the Supreme Court considered

that the Court of Appeal's decision and assessment of the evidence

before it were not contrary to Dutch law.

The Commission does not consider that the above complaint raises

an issue under Article 6 para. 2 (Art. 6-2) of the Convention. In

particular, it does not find that the opinion expressed by the police

officer, as evaluated by the Court of Appeal, constituted a presumption

prohibited by this provision (cf., as regards presumptions in criminal

proceedings, Eur. Court H.R., Salabiaku judgment of 7 October 1988,

Series A no. 141-A, pp. 14ff., paras. 26ff.). In the circumstances of

the present case the Commission does not find that the use of the

statement complained of infringed the principle of a fair hearing

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

Moreover, there is nothing in the case-file to support the contention

that the proceedings at issue were otherwise unfair.

It follows that this complaint is 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 the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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JANSSEN v. THE NETHERLANDS

JANSSEN v. THE NETHERLANDS

LEXI