Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13143/87

by L.T.

against the Netherlands

The European Commission of Human Rights sitting in private

on 9 November 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 August 1987

by L.T. against the Netherlands and registered on 13 August

1987 under file No. 13143/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1946. He is

at present detained in a prison in The Hague. He is represented in the

proceedings before the Commission by Mr. Vincent Kraal, a lawyer

practising in Amsterdam.

The facts, as submitted by the parties, may be summarised as

follows:

In the course of a criminal investigation regarding narcotics

offences, a Dutch police officer, in February-March 1984, heard a

number of witnesses in Malaysia. Some of the declarations made by

these persons implicated the applicant, who was therefore arrested on

30 August 1984.

In the subsequent criminal proceedings before the Regional

Court (Arrondissementsrechtbank) of Amsterdam the applicant

requested, inter alia, that the case be referred back to the

investigating judge in order to allow this judge to hear under oath

the persons who had testified before the police officer and in order

to ensure the rights of the defence during such further investigation.

He further submitted that the persons who had testified before the

police officer concerned had sought to harm him because of an alleged

financial dispute he had with one of them.

By judgment of 1 February 1985 the Regional Court convicted

the applicant and sentenced him to ten years' imprisonment. It held,

inter alia, that it was unlikely that the persons who had

testified before the police officer would give different testimony

before an investigating judge. It also held that it was not plausible

that the witnesses had only intended to harm the applicant since

their evidence also implicated others.

The applicant appealed to the Court of Appeal (Gerechtshof) of

Amsterdam. He again requested that his case be referred to an

investigating judge. He also submitted, inter alia, that the evidence

given before the police officer had not been freely given as the

police officer, before he heard the witnesses for the second time, had

promised that the Dutch authorities would not request their

extradition.

By judgment of 16 July 1985 the Court of Appeal quashed the

Regional Court's judgment but convicted the applicant on the basis of

the evidence given before the police officer in Malaysia and on the

applicant's admission at the trial that he bore the nickname "Tiger".

He was sentenced to ten years' imprisonment. The Court held, inter

alia, that the witness testimony concorded in substance with what the

witnesses had testified before the investigating judge of The Hague in

another case and that, therefore, the interests of the defence did not

make a further investigation by an investigating judge necessary. In

addition the evidence given after the promise that the Dutch

authorities would not ask for extradition of the witnesses, could be

considered to be voluntary evidence since it accorded in the main with

the evidence given before this promise was made.

The applicant appealed to the Supreme Court (Hoge Raad). By

judgment of 17 February 1987 the Supreme Court rejected the appeal. It

rejected, inter alia, the applicant's objection that the Court of

Appeal had not examined his request to have the case referred back to

an investigating judge in order to re-hear the witnesses for the

prosecution. It accepted the Court of Appeal's reasoning that

the interests of the defence did not require a new investigation.

COMPLAINTS

The applicant complains that it was not possible for him to

hear witnesses against him in the course of a supplementary

preliminary investigation by an investigating judge. He alleges that

his conviction was almost completely based on the testimony of

witnesses whom he could not examine. The applicant submits that he

has the right to examine witnesses against him, even though the courts

are of the opinion that the evidence of these witnesses is reliable.

The applicant invokes Article 6 paras. 1 and 3(d) of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 August 1987 and

registered on 13 August 1987.

On 19 January 1989 the Commission decided to invite the

respondent Government, pursuant to Rule 42 para. 2 (b) of its Rules of

Procedure, to submit written observations on admissibility and merits,

before 31 March 1989.

At the Government's request, the President agreed to extend

the time limit to 21 April 1989. Upon a request for an indefinite

extension of the time limit, the President granted an extension until

12 June 1989. The Government's observations were submitted on 13 June

1989. An English translation was submitted on 22 June 1989.

The applicant was invited to submit observations in reply

before 3 July 1989. At the request of the applicant, the President

extended the time limit to 3 August 1989. The applicant's

observations were submitted on 11 July 1989.

THE LAW

The applicant complains that he has not had a fair trial

because he has not had the opportunity to examine or have examined the

witnesses against him, upon whose testimony his conviction was

almost entirely based. He submits that the domestic courts'

opinion that these witnesses would not testify differently if

questioned again, does not affect his right to question them. He

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

Article 6 para. 1 (Art. 6-1) provides, inter alia:

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

him ... everyone is entitled to a fair and public

hearing ..."

Article 6 para. 3 (d) (Art. 6-3-d) provides:

"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 attendence and examination of witnesses on his

behalf under the same conditions as witnesses against him."

The respondent Government submit that the applicant has not

raised in substance before the domestic courts the complaint which he

makes before the Commission. At no stage during the proceedings

against him did the applicant request the right to question the

witnesses against him, either through an investigating judge or in

open court. Furthermore, the Public Prosecutor, as well, did not have

an opportunity to question these witnesses. Finally, numerous

witnesses were, in fact, heard for the defence.

The applicant submits in reply that his request to have the

case referred back to the investigating judge was for the explicit

purpose of securing the rights of the defence. The desire to question

the witnesses for the prosecution was explicitly expressed by the

applicant's counsel in his memorial as submitted to the Court of

Appeal at the hearing.

The Commission recalls that it is sufficient for the

exhaustion of domestic remedies if the applicant has raised "in

substance" before the national authorities the complaint that he makes

before the Commission and that, even in a State where the Convention

is directly applicable (as in the Netherlands), "the person concerned

may rely before the domestic courts on other arguments to the same

effect" (cf. No. 7367/76, Dec. 10.3.77, D.R. 8 p. 185, 210).

The Commission considers that the applicant's request before

the domestic courts to have his case referred back to an investigating

judge was inspired by the desire to have an opportunity of questioning

the witnesses for the prosecution and to secure thereby the rights of

the defence as protected by Article 6 para. 3 (d) (Art. 6-3-d) of the

Convention. Although the applicant did not expressly mention that he

wished, after the case had been referred back to the investigating

judge, to question the witnesses, he must be considered in substance

to have raised the matter which now forms the basis of his complaint

to the Commission.

With regard to the Government's assertion that the applicant

could have requested the appearance of the witnesses at the trial, the

Commission recalls that it was unlikely that they would have come

voluntarily to the Netherlands to give evidence and that they had also

been promised that the Netherlands would not request their

extradition. Moreover, a request to have them heard by way of letters

rogatory before a Malaysian court would hardly have been an effective

remedy, once the courts had concluded that a referral of the case back

to the investigating judge for the purpose of a new hearing was

unnecessary.

It follows that the application cannot be declared

inadmissible under Article 27 para. 3 (Art. 27-3) on the ground that

the applicant has failed to exhaust domestic remedies, as required by

Article 26 (Art. 26) of the Convention.

Furthermore, the Commission considers that the applicant's

complaints raise complex issues of fact and law which can only be

resolved by an examination of the merits. The application is not,

therefore, manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

No other grounds for inadmissibility have been established.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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T. v. THE NETHERLANDS

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