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AS TO THE ADMISSIBILITY OF

Application No. 15435/89

by Hendrik BRITTING

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 13 January 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

Mr.F. MARTINEZ

L. LOUCAIDES

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 27 June 1989 by

Hendrik BRITTING against the Netherlands and registered on 5 September

1989 under file No. 15435/89;

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 1939. When

introducing his application he was serving a prison sentence at the

prison of The Hague. Before the Commission the applicant is

represented by H.H.M. van Dijk, a lawyer practising in Oss.

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

summarised as follows.

The facts of the case go back to 8 June 1986 when a certain R.

was shot in a pub in Breda where he found himself in the company of D.,

V., L. and J. He died on 4 August 1986.

On 10 August 1986, the applicant was arrested and subsequently

charged with murder.

During some confrontations (so-called Oslo confrontations) which

took place on 11 and 12 August 1986, the applicant was pointed out as

the gunman by the witnesses D., V. and L. who had already been heard

at the beginning of the inquiry and who had given a description of the

gunman. Faced by a line-up of 6 persons amongst whom the applicant,

these were asked individually whether the gunman was amongst them, and

if so to point him out.

On 16 April 1987, the applicant was convicted and sentenced to

10 years' imprisonment for manslaughter by the Regional Court

(Arrondissementsrechtbank) of Breda.

In his appeal to the Court of Appeal (Gerechtshof) of

's-Hertogenbosch, the applicant stated, inter alia, that the Oslo

confrontations had not been properly carried out because four of the

five persons lined up with him had a personal feature which was not

mentioned in - or did not square with - the earlier description given

by the three witnesses. He therefore thought that these

confrontations should not have been accepted as evidence.

During the trial before the Court of Appeal, a number of

witnesses were heard including D., V. and L. The Court also heard an

expert witness for the defence who criticised the manner in which the

Oslo confrontations were carried out. After having heard the witnesses

and experts, the President of the Court gave the defence and the

prosecutor the opportunity to have questions put to them or to comment

on their statements.

On 29 December 1987, the Court of Appeal confirmed the verdict

of the Regional Court. The Court however did not base its decision on

the Oslo confrontations, but on other evidence namely, inter alia, the

statements made at the beginning of the inquiry and at the hearing by

the witnesses D., V. and L., the statement made by the victim himself

before he died, and the testimonies of police officers and experts.

On 14 March 1989, the Supreme Court (Hoge Raad) rejected the

applicant's appeal on points of law.

COMPLAINT

The applicant complains under Article 6 para. 1 of the Convention

that the trial against him was unfair on the grounds that the courts

should have refused to accept as evidence either the Oslo

confrontations or even the statements made by D., V. and L. as they

were biased as a result of the incorrect confrontations. He explains

that four of the five persons who were lined up with him during the

confrontations had a personal feature (height, stature, age, beard)

which was not mentioned in - or did not square with - the earlier

descriptions of the gunman given by the witnesses. He also alleges

that prior to the confrontations these witnesses had already been shown

pictures of possible suspects among which pictures of him.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the trial against him was unfair on the grounds that

the Dutch courts should have refused to accept as evidence either the

Oslo confrontations or even the statements made by D., V. and L. as

these statements had become dubious as a result of the incorrect

confrontations.

Article 6 para. 1 (Art. 6-1) of the Convention, as far as

relevant, provides:

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

him, everyone is entitled to a fair and public hearing...".

The Commission recalls that according to Article 19 (Art. 19) of

the Convention, the duty of the Convention organs is to ensure the

observance of the engagements undertaken by the Contracting States in

the Convention. In particular, it is not their function to deal with

errors of fact or of law allegedly committed by a national court unless

and insofar as they may have infringed rights and freedoms protected

by the Convention (cf. Eur. Court H.R., Schenk judgment of 12 July

1988, Series A no. 140, p. 29 para. 45).

The Commission also recalls that under its established case-law,

in order to determine whether Article 6 para. 1 (Art. 6-1) of the

Convention has been complied with, it must examine the proceedings as

a whole once

they have been concluded (cf., inter alia, No. 9938/82, Dec. 15.7.86,

D.R. 48 p. 21, No. 7945/77, Dec. 4.7.78, D.R. 14 p. 228).

The Commission further recalls that Article 6 para. 1 (Art. 6-1)

of the Convention implies that everyone who is a party to proceedings

shall have a reasonable opportunity of presenting his case to the Court

under conditions which do not place him at a substantial disadvantage

vis-à-vis his opponent. It does not, however, prescribe rules on the

admissibility and assessment of evidence, which are essentially matters

for the national law. The question of assessment of evidence is

subject to the discretion of national tribunals. It is therefore not

for the Commission to decide whether or not domestic courts have

correctly assessed evidence unless there is an indication that the

judge has drawn grossly unfair or arbitrary conclusions from the facts

before him (cf., inter alia, Eur. Court H.R., Kostovski judgment of 20

November 1989, Series A no. 166, p. 19 para. 39; No. 9000/80, Dec.

11.3.82, D.R. 28 pp. 127, 134).

The Commission will therefore consider whether the proceedings

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

fair.

It appears from the file that both in the Regional Court and in

the Court of Appeal, the manner in which the Oslo confrontations had

been carried out was at length discussed and that the Court of Appeal

heard an expert witness for the defence who criticised the manner in

which the confrontations were carried out. Furthermore, the applicant,

who was represented by a lawyer, was able to put forward other

evidence, in writing and orally at the different stages of the

procedure, and has submitted written and oral observations concerning

the alleged unfairness of the confrontations. Thus, he was able to

prepare properly his defence and argue his case at the trial so that

the courts could examine the evidence in the light of the submissions

of the applicant.

The Commission also notes that the witnesses D., V. and L. could

be examined and cross-examined during the hearings before the Regional

Court and the Court of Appeal.

It also appears from the file that when reaching its decision,

the Court of Appeal did not use the results of the confrontations.

Furthermore, the Court did not only base its decisions on the

statements given after the confrontations by D., V. and L. It also

took into account the statements made by these witnesses prior to the

confrontations, the statement of the victim and the statements of

police officers and experts. The Commission considers that the reasons

on which the domestic courts based their decisions are sufficient to

exclude the assumption that the evaluation of the evidence had been

arbitrary.

In these circumstances, the Commission finds that an examination

of the proceedings as a whole does not disclose any appearance of a

violation of Article 6 (Art. 6) of the Convention.

It follows that 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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BRITTING v. THE NETHERLANDS

BRITTING v. THE NETHERLANDS

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