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AS TO THE ADMISSIBILITY OF

Application No. 17107/90

by V.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 July 1992, 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

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 3 August 1990 by

V. against the Netherlands and registered on 31 August 1990 under file

No. 17107/90;

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 1957, and residing in

Kamperveen, the Netherlands. Before the Commission he is represented

by Mrs. G. Later, a lawyer practising in The Hague, the Netherlands.

The facts as submitted by the applicant may be summarised as

follows.

On 19 November 1987 the Zwolle Regional Court

(Arrondissementsrechtbank), after hearing the applicant, convicted him

of rape of his neighbours' 14 years old daughter and sentenced him to

9 months imprisonment. The conviction was based on the police procès-

verbal containing the declarations of the girl herself and of a

girlfriend to whom she had told the story, as well as a medical report

of an assistant gynaecologist who diagnosed 2 days after the alleged

rape a small bleeding wound on the hymen. According to another

gynaecologist contacted by the applicant's lawyer, it was not clear

whether this wound was the result of the alleged rape or of the

assistant's lack of professional experience while examining her. The

applicant appealed to the Arnhem Court of Appeal (Gerechtshof).

On 11 December 1987, at the girl's request, the President of the

Regional Court in summary proceedings prohibited the applicant access

to his house and to the area within a radius of 500 metres of his

neighbours pending the outcome of the proceedings.

On 19 July 1988 the Arnhem Court of Appeal (Gerechtshof) referred

the case back to the Zwolle Regional Court in order to hear witnesses.

The investigating judge (rechter-commissaris) inter alia heard the

girl, in the presence of the applicant's lawyer who could put questions

to her, and the assistant gynaecologist. The girl allegedly mitigated

her statement, but persisted in her statement that the applicant had

raped her.

On 15 December 1988 the Court of Appeal, basing itself on the

police procès-verbal, the declarations of the applicant, the girl, her

girlfriend and the medical report, maintained the conviction but

reduced the sentence to 6 months imprisonment. The Court of Appeal also

rejected the applicant's request for a further medical examination of

the girl as this would be useless 16 months after the disputed facts

took place. On 6 February 1990 the Supreme Court (Hoge Raad) dismissed

the applicant's plea of nullity.

Throughout the proceedings the applicant denied having raped the

girl.

Under Dutch law, both a police procès-verbal and statements made

before the investigating judge constitute lawful evidence (articles 339

and 344 of the Code of Penal Procedure).

COMPLAINTS

The applicant complains that he did not receive a fair trial as

his conviction was based on hearsay evidence (de auditu bewijs), namely

the statements of the girl and her girlfriend contained in the police

procès-verbal. He also complains that as the girl's statements before

the investigating judge were not relied upon by the Court of Appeal,

he could not properly prepare his defence as he did not have the

opportunity to challenge the girl's statements to the police. He

invokes Article 6 paras. 1, 3(b) and 3(d) of the Convention.

THE LAW

The applicant complains that he did not receive a fair trial and

that he could not properly prepare his defence on the ground that his

conviction was based on hearsay evidence and that the girl's subsequent

statements before the investigating judge were not relied upon. He

invokes Article 6 (Art. 6) which provides insofar as relevant:

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

everyone is entitled to a fair... hearing...

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 paragraph 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 complaint under the two provisions

taken together.

The Commission first recalls that the admissibility of evidence

is primarily a matter for regulation by national law and, as a rule,

it is for the national courts to assess the evidence before them. As

to the use of statements obtained at the pre-trial stage, it is not in

itself inconsistent with paras. 3(d) and 1 of Article 6

(Art. 6-1, 6-3-d), provided that the rights of the defence have been

respected (Eur. Court H.R., Asch judgment of 26 April 1991, Series A

no. 203, paras. 26-27).

In the present case the applicant was convicted on the basis of

(1) the girl's and her girlfriend's declarations contained in the

police procès-verbal, (2) his own declarations and (3) the medical

report of an assistant gynaecologist who examined the girl. Moreover,

the girl was heard subsequently by the investigating judge in the

presence of the applicant's lawyer and the applicant was given the

opportunity to submit his version of events, inter alia, in court.

It can therefore not be said that the applicant was in any way

prejudiced in his defence. In addition, the fact that the Court of

Appeal did not base its decision on the statements of the girl before

the investigating judge but on those contained in the police procès-

verbal does not alter this conclusion since, as a general rule, it is

for the national courts to assess the evidence before them (Eur. Court

H.R., Vidal judgment of 22 April 1992, Series A no. 235-B, para. 33).

As to the applicant's allegation that he could not properly

defend himself as he was unable to challenge the girl's statements to

the police, the Commission notes that the girl was subsequently heard

by the investigating judge in the presence of the applicant's lawyer

who could put questions to her.

It follows that the application must be rejected as being

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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