Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12305/86

by D.V.

against Belgium

The European Commission of Human Rights sitting in private

on 6 March 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs. G.H. THUNE

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 25 April 1986

by D.V. against the Netherlands and registered

on 4 August 1986 under file No. 12305/86;

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 Belgian citizen, born in 1955 and presently

residing in L., Belgium.

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

summarised as follows:

On 7 September 1983 the applicant was arrested on suspicion of

having committed armed robbery together with several others.

By judgment of 15 May 1984 the Regional Court (Rechtbank van

eerste aanleg) of Hasselt convicted the applicant of complicity in an

armed robbery. He was sentenced to 36 months' imprisonment.

On 28 May 1984 the applicant appealed to the Court of Appeal

(Hof van Beroep) of Antwerpen. He submitted, inter alia, that a

supplementary investigation by the police should have been held, as he

had changed his confession. During such a supplementary investigation

he could be confronted with several witnesses who had testified

against him.

On 29 June 1984 the Court of Appeal of Antwerpen decided on

the applicant's request for release pending trial. It decided by

mistake that there was no reason to order the applicant's immediate

"arrest". By decision of 23 November 1984 the Court of Appeal

corrected the decision of 29 June 1984 and decided that there was no

reason to order the applicant's immediate release. The applicant

again asked for release pending trial. The request was granted. On

28 November 1984 the applicant was provisionally released.

By judgment of 25 January 1985 the Court of Appeal convicted

the applicant and sentenced him to four years' imprisonment. The

decision was based on various pieces of evidence. The Court held that

the applicant was wrong to complain that no supplementary

investigation had been held because he only asked for it after the

judgment in first instance; that at the applicant's request one

witness had been heard by the Court; and that the applicant's right to

defend himself had not been violated by the fact that the

investigators had not found it necessary or advisable to confront the

applicant with several witnesses. The composition of the Court of

Appeal was the same as the composition of the Court of Appeal that had

taken the decisions in the applicant's case on 29 June 1984 and 23

November 1984.

The applicant appealed to the Court of Cassation (Hof van

Cassatie). He invoked, inter alia, Article 6 para. 3 (d) of the

Convention. He submitted that, as he had an alibi and numerous

testimonies in his favour, the testimonies of people with whom he had

not been confronted could not be held against him.

By judgment of 29 October 1985 the Court of Cassation rejected

the appeal. It held, inter alia, that the fact that a judge rejects a

request for a supplementary investigation because he does not consider

this measure necessary for the forming of his opinion, does not imply

that the right to defend oneself is violated. It pointed out that the

Court of Appeal had dealt with the applicant's alibi and the

testimonies in his favour comprehensively and had rejected them.

COMPLAINTS

1. The applicant complains that the Court of Appeal of Antwerpen,

that decided on 25 January 1985, was composed of the same judges who

had decided on the applicant's request for release pending trial on 29

June 1984 and 23 November 1984. These judges were, therefore, not

impartial. He invokes Article 6 para. 1 of the Convention.

2. The applicant complains that the Court of Appeal refused to

call certain persons as witnesses and to examine them, although he had

requested this.

He invokes Article 6 para. 3 (d) of the Convention.

THE LAW

1. The applicant has complained that the Court of Appeal,

deciding on 25 January 1985, was not impartial as its composition was

similar to that of the Court that decided on his request for release

pending trial. He has invoked Article 6 para. 1 (Art. 6-1) of the Convention.

However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a violation

of this provision as, under Article 26 (Art. 26) of the Convention, it may only

deal with a matter after all domestic remedies have been exhausted according to

the generally recognised rules of international law.

The mere fact that the applicant has submitted his case to the various

competent courts does not of itself constitute compliance with this rule. It

is also required that the substance of any complaint made before the Commission

should have been raised during the proceedings concerned. In this respect the

Commission refers to its established case-law (see e.g. No. 1103/61, Dec.

12.3.62 Yearbook 5, pp. 168, 186; No. 5574/72, Dec. 21.3.75, D.R. 3, pp. 10,

15; No. 10307/83, Dec. 6.3.84, D.R. 37, pp. 113, 120).

In the present case the applicant did not raise, either in form or in

substance, in the proceedings before the Court of Cassation the complaint which

he now makes before the Commission. Moreover, an examination of the case does

not disclose the existence of any special circumstances which might have

absolved the applicant, according to the generally recognised rules of

international law, from raising his complaint in the proceedings referred to.

It follows that the applicant has not complied with the condition as to

the exhaustion of domestic remedies and his application must in this respect be

rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

2. The applicant has complained that the Court of Appeal refused to call

certain persons as witnesses and to examine them, although he requested this.

He has invoked Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.

The Commission notes that it does not appear from the facts, as

submitted by the applicant, that the applicant requested the Court of Appeal to

call certain persons as witnesses and to examine them. From the facts, as

submitted by the applicant, it only appears that the applicant requested a

supplementary investigation by the police.

However, even assuming that the applicant exhausted the remedies

available to him under Belgian law, the Commission refers in this respect to

its constant case-law according to which Article 6 para. 3 (d) (Art. 6-3-d) of

the Convention does not grant the defence total freedom to call any potential

witness at any time in the proceedings. It is in principle within the

discretionary power of the national courts of the Contracting States to

establish whether the hearing of witnesses is likely to be of assistance in

discovering the truth and, if not, to decide against the calling of such

witnesses (cf. e.g. No. 8231/78, Dec. 6.3.82, D.R. 28 p. 5).

The Commission notes that, in the present case, the Court of Appeal had

rejected the applicant's alibi and the testimonies in his favour. The

applicant's conviction was based on various pieces of evidence. It does not

appear that the Court of Appeal's decision not to call witnesses was unfair or

arbitrary.

An examination by the Commission of this complaint as it has been

submitted does not, therefore, disclose any appearance of a violation of the

rights and freedoms set out in the Convention and in particular in the above

Article.

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.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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V. v. BELGIUM

V. v. BELGIUM

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