AS TO THE ADMISSIBILITY OF

                      Application No. 29835/96

                      by C.G.P.

                      against the Netherlands

     The European Commission of Human Rights (Second Chamber) sitting

in private on 15 January 1997, the following members being present:

           Mrs.  G.H. THUNE, President

           MM.   J.-C. GEUS

                 G. JÖRUNDSSON

                 A. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

                 E. BIELIUNAS

                 E.A. ALKEMA

           Ms.   M.-T. SCHOEPFER, Secretary to the 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 15 September 1995

by C.G.P. against the Netherlands and registered on 19 January 1996

under file No. 29835/96;

     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 1946, and residing in

Amsterdam, the Netherlands. Before the Commission he is represented by

Mrs. P.S.J. Nuijten, a lawyer practising in Amsterdam.

     On 23 April 1992 the Regional Court (Arrondissementsrechtbank)

of Amsterdam convicted the applicant of drug offences, sentenced him

to a suspended term of three months' imprisonment and imposed a fine

of 50,000 Dutch guilders to be replaced by six months' imprisonment in

case of non-payment.

     The Regional Court used in evidence against the applicant, inter

alia, a procès-verbal drawn up by two officers of the Amsterdam police

on 11 October 1990. According to this procès-verbal information had

been received by the Criminal Intelligence Service (Criminele

Inlichtingen Dienst, hereinafter "CID") to the effect that the

applicant was travelling from Morocco to the Netherlands in a lorry

containing hashish hidden in its roof and that he would enter the

Netherlands at a specified place on 29 August 1990. The procès-verbal

described the subsequent police investigation, consisting of, inter

alia, the observation of the lorry by Belgian and Dutch police. The

information contained in the procès-verbal which concerned the

following of the lorry on its journey through Belgium and the

Netherlands was taken from an observation journal kept by officers

manning a central post at the Amsterdam main police station.

     The Regional Court also used in evidence a procès-verbal of the

police officer P. of 6 December 1991 in which the latter stated that

he had seen the applicant crossing the Dutch-Belgian border in a lorry

on 29 August 1990, and a procès-verbal drawn up by the police officer

B. containing a statement made by the applicant on 30 August 1990.

     The applicant filed an appeal with the Court of Appeal

(Gerechtshof) of Amsterdam. At the hearing before the Court of Appeal

on 22 January 1993 the applicant's defence counsel argued that the

prosecution should be declared inadmissible since the Procurator

General (Procureur-Generaal) had failed to provide her, at her request,

with a copy of the observation journal. The Procurator General replied

that she had been unable to comply with this request as she was not in

possession of this journal. The Court of Appeal decided not to declare

the prosecution inadmissible. It also refused the defence counsel's

request for a number of witnesses to be heard by the Court. However,

it suspended the hearing and referred the case back to the

Investigating Judge (Rechter-Commissaris) in order for him to hear

these witnesses.

     A number of police officers, some of whom had taken part in the

observation of the lorry, were heard by the Investigating Judge in the

presence of the applicant's defence counsel. The defence counsel was

able to put questions to the witnesses and through her questioning she

tried, inter alia, to ascertain the source of the information which had

been received by the CID. However, apart from one witness who stated

that this information had not been noted in a procès-verbal but that

a so-called "tip-off form" had been filled out, none of these witnesses

were able to elaborate on this matter.

     At the hearing on 8 December 1993 the Procurator General

requested the Court of Appeal to declare the prosecution inadmissible.

She submitted that none of the persons concerned had been able to

explain how and when the CID information had been received by the

police and that, therefore, it would be impossible for the Court to

determine whether or not the police investigation had commenced

lawfully. The applicant's defence counsel agreed with the Procurator

General, adding that she had not received the documents which had led

to the arrest of the applicant, including the observation journal. In

her opinion, the applicant was entitled to take cognisance of all

documents relevant to his defence even if the prosecuting authorities

did not rely on them.

     In an interlocutory judgment of 22 December 1993 the Court of

Appeal decided not to declare the prosecution inadmissible. It held

that it had not appeared from the hearing of witnesses by the

Investigating Judge that irregularities had occurred during the

gathering of information by the CID. Furthermore, the lawfulness of the

police investigation was not affected by the inability to ascertain

exactly how and when the CID information had been received.

     Prior to the subsequent hearing on 2 March 1994 the applicant's

defence counsel requested the Court of Appeal to hear a number of

witnesses. These included the police officers B. and P. who had also

been heard by the Investigating Judge following the Court's decision

to suspend the hearing on 22 January 1993. The police officer B. had

stated that he had interviewed the applicant on 30 August 1990 and his

signature featured on the procès-verbal of this interview. However,

according to the applicant the interviewing officer had been a native

of Aruba (a Caribbean island and an autonomous part of the Kingdom of

the Netherlands), whereas during the hearing before the Investigating

Judge the defence counsel had seen that B. was white and did not

correspond to the description given by the applicant of the officer who

had interviewed him.

     The defence counsel further requested that the police officer P.

be heard again and she submitted that by questioning this witness she

would be able to refute his testimony given before the Investigating

Judge to the effect that he had seen the applicant in the lorry when

it crossed the border between Belgium and the Netherlands. She finally

requested that the police officer in charge of the police investigation

be heard as a witness. In this respect counsel submitted that from the

examination of the witnesses before the Investigating Judge it had not

become clear which police officer had been in charge of the

investigation.

     In her pleadings before the Court of Appeal on 2 March 1994, the

applicant's defence counsel invoked Article 6 of the Convention and

argued, inter alia, that in the present case it had not been possible

to find an answer to the question whether the evidence against the

applicant had been gathered lawfully. In this respect she referred to

the fact that the applicant had been unable to take cognisance of all

relevant documents since the observation journal and the tip-off form

had disappeared.

     The applicant's defence counsel further recalled the commotion

which had been created by the recent disbandment of a special police

task force, consisting of officers from different regional police

departments, after it had appeared that investigatory methods had been

used by its members the lawfulness of which was in doubt. This affair

had received wide press coverage from which, according to counsel, it

appeared that there were strong indications that the use of unlawful

investigatory methods was not incidental but structural. Counsel

submitted that in those circumstances it could no longer be maintained

that the lack of information concerning the reason for suspecting the

applicant did not affect the lawfulness of the police investigation.

     The Procurator General at the Court of Appeal submitted that she

had not summoned the witnesses proposed by the applicant since, inter

alia, the police officers B. and P. had already been heard by the

Investigating Judge. Furthermore, apart from those police officers who

had been heard by the Investigating Judge, the prosecution department

was not aware that there had been any other police officers in charge

of the investigation. The Procurator General moreover denied that the

disbandment of the special police task force referred to by the

applicant's defence counsel had anything to do with the present case.

In her opinion, the defence had failed to submit any concrete facts

indicating that irregularities had occurred during the police

investigation.

     At the hearing on 2 March 1994 the Court of Appeal refused to

accede to the defence counsel's request regarding the hearing of

witnesses. It considered that this refusal could not be detrimental to

the applicant's defence since the requested witnesses B. and P. had

already been heard by the Investigating Judge in the presence of

counsel. The Court held furthermore that no concrete facts or

circumstances had been adduced which could justify the suspicion that

irregularities had occurred during the investigations. Moreover, the

Court of Appeal found that the request to hear a person indicated only

as "the police officer in charge of the investigation" had not been

sufficiently elucidated and it was not convinced that "the Aruban"

actually existed. It held in this respect that, in any event, it had

not been made clear that the presence of this Aruban had influenced the

contents of the statement made and signed by the applicant.

     On 16 March 1994 the Court of Appeal quashed the judgment of the

Regional Court, convicted the applicant and imposed the same sentence

as the Regional Court. In accepting the admissibility of the

prosecution it referred to the reasoning contained in its interlocutory

judgment of 22 December 1993. It was for these same reasons that the

Court decided that the inability to ascertain the lawfulness of the

start of the police investigation did not entail the inadmissibility

of the evidence.

     The Court of Appeal  used  in  evidence  the procès-verbaux of

11 October 1990 and 6 December 1991, a statement made by the applicant

before the Court on 2 March 1994 and a report drawn up by an expert

concerning the substances found in the lorry. In addition, the Court

of Appeal noted that it had not used in evidence the statement made by

the applicant to the police officer B. on 30 August 1990.

     The applicant filed an appeal in cassation against this decision

with the Supreme Court (Hoge Raad). He complained in the first place

that since relevant information with regard to the start of the police

investigation was missing, the lawfulness of his arrest could not be

examined and the defence had thus been unable to invoke any possible

irregularities in the gathering of evidence which might have occurred.

Secondly, he complained that the Court of Appeal had refused to hear

certain witnesses.

     The  Supreme  Court  rejected  the  appeal  in  cassation  on

28 March 1995. It held that the Court of Appeal had been right in

rejecting the applicant's argument that the fact that documents

concerning the CID information and the observation journal were missing

should have led to the inadmissibility of the evidence. In this respect

the Supreme Court found that it had not been unreasonable for the Court

of Appeal to accept that the procès-verbal of 11 October 1990 correctly

reflected the contents of the CID information which had been received,

that the contents of the observation journal had only been used in

evidence by the Court of Appeal to the extent that they had been

contained in the procès verbal of 11 October 1990, and that the Court

of Appeal had given the applicant the opportunity to question before

the Investigating Judge a number of police officers who had been

involved in the observation of the lorry.

     The Supreme Court also found that the applicant's defence rights

had not been prejudiced as a result of the Court of Appeal's refusal

to hear certain witnesses. In this respect the Supreme Court took into

account the fact that the applicant's defence counsel had not indicated

any concrete facts or circumstances about which she wished to have the

witnesses heard.

     The applicant's subsequent request for a pardon (gratie) was

rejected on 11 November 1995.

COMPLAINTS

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

that in the criminal proceedings against him his defence rights were

prejudiced as a result of the fact that relevant information concerning

the beginning of the police investigation was missing. The lawfulness

of this investigation could therefore not be examined and he was thus

unable to invoke any possible shortcomings which might have occurred

in the gathering of the evidence.

2.   The applicant further complains under Article 6 para. 3 (d) of

the Convention that the Court of Appeal refused to hear certain

witnesses.

THE LAW

1.   The applicant complains in the first place that in the criminal

proceedings against him his defence rights were prejudiced since

certain documents relating to the start of the police investigation

against him had disappeared. He invokes Article 6 para. 1 (Art. 6-1)

of the Convention, which provides, insofar as relevant:

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

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

     The Commission notes that Article 6 para. 3 (b) (Art. 6-3-b) may

also be of relevance in its examination of this complaint. Article 6

para. 3 (b) (Art. 6-3-b), insofar as relevant, reads as follows:

     "3.   Everyone charged with a criminal offence has the following

     minimum rights:

     b.    to have adequate ... facilities for the preparation of his

     defence;"

     As the guarantees in para. 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 (cf. Eur. Court HR, Asch v. Austria judgment of 26 April 1991,

Series A no. 203, p. 10, para. 25).

     The Commission recalls in the first place that it is not for the

Convention organs to substitute their view for that of the national

courts which are primarily competent to determine the admissibility of

evidence. The Commission should nevertheless satisfy itself that the

proceedings as a whole were fair, having regard to any possible

irregularities before the case was brought before the courts of trial

and appeal and checking that those courts had been able to remedy them

if there were any  (cf. Eur. Court HR, Miailhe v. France judgment of

26 September 1996, to be published in Reports of Judgments and

Decisions 1996, para. 43).

     The Commission notes that in the present case a police

investigation was commenced after the CID had received incriminating

information about the applicant. The applicant was unable to ascertain

where this information came from or how it had been obtained. Moreover,

it appears that an observation journal was kept during the police

investigation which had involved the following of a lorry through

Belgium and the Netherlands. Although information contained in a

procès-verbal dated 11 October 1990 was stated to have been taken from

this observation journal, the journal itself had apparently disappeared

and the applicant had thus not had access to it.

     It is true that the "facilities" which everyone charged with a

criminal offence should enjoy include the opportunity to acquaint

himself, for the purposes of preparing his defence, with the results

of investigations carried out throughout the proceedings. If,

therefore, the information received by the CID and the observation

journal contained relevant items which could have enabled the applicant

to exonerate himself or have his sentence reduced, failure to make

those items available to the defence for inspection would constitute

a refusal of facilities necessary for the preparation of the defence

and, consequently, a violation of the right guaranteed in Article 6

para. 3 (b) (Art. 6-3-b) of the Convention (cf. No. 8403/78, Jespers

v. Belgium, Comm. Rep. 14.12.81, paras. 56 and 59, D.R. 27, pp. 87 and

88). However, the Commission considers that an accused may be expected

to give specific reasons for his request (cf. Eur. Court HR, Bendenoun

v. France judgment of 24 February 1994, Series A no. 284, p. 22, para.

22) and that the domestic courts are entitled to examine the validity

of these reasons.

     The Commission observes that it is the applicant's contention

that the source of the CID information and the observation journal

might have revealed irregularities in the investigation which could

have led to either the prosecution or the evidence having to be

declared inadmissible. For this reason, he submits, this information

and this document should have been made available to him.

     The Commission further observes that in the domestic proceedings

the Court of Appeal suspended its examination of the case and referred

it back to the Investigating Judge in order for witnesses, who had been

proposed by the applicant, to be heard. The applicant's defence counsel

was thus able to put questions to a number of police officers

concerning the source of the CID information and the observation of the

lorry. However, the Court of Appeal found that the examination of these

witnesses had not produced any support for the applicant's allegation

that any irregularity had in fact occurred.

     The Commission considers that by acceding to the applicant's

request to have certain witnesses examined, the Court of Appeal

expressed a willingness to remedy any possible irregularities which

might have occurred before the case was brought before the courts of

trial and appeal. The Court of Appeal thus also enabled itself to form

an opinion as to the validity of the reasons given by the applicant for

his request to have access to certain information. The Commission

further finds that in the absence of any concrete indication that such

irregularities had in fact taken place it does not appear from the

information which was available to the domestic courts that the failure

to produce the "tip off form" and the observation journal infringed the

rights of the defence or the principle of equality of arms.

     It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2.   The applicant further complains under Article 6 para. 3 (d)

(Art. 6-3-d) of the Convention of the Court of Appeal's refusal to hear

certain witnesses. Article 6 para. 3 (d) (Art. 6-3-d) provides as

follows:

     "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 attendance and examination of witnesses on

           his behalf under the same conditions as witnesses against

           him ..."

     While referring to its observation above, the Commission will

consider this complaint under Article 6 paras. 1 and 3 (d)

(Art. 6-1+6-3-d) taken together.

     The Commission recalls from the outset that the taking of

evidence is governed primarily by the rules of domestic law and it is

in principle for the national courts to assess the evidence before

them. It is therefore not the Commission's task to decide whether the

national courts have correctly assessed the evidence, but to determine

whether the proceedings as a whole, including the way in which evidence

was taken, were fair as required by Article 6 para. 1 (Art. 6-1) (cf.

Eur. Court HR, Kostovski v. the Netherlands judgment of 20 November

1989, Series A no. 166, p. 19, para. 39.)

     Also, Article 6 para. 3 (d) (Art. 6-3-d) of the Convention does

not give an accused an unlimited right to obtain the examination of

witnesses. It is in principle within the discretionary power of

domestic courts to establish whether the hearing of witnesses is likely

to be of assistance for discovering the truth and, if not, to refuse

the calling of such witnesses (cf. Eur. Court HR, Bricmont v. France

judgment of 7 July 1989, Series A no. 158, p. 31, para. 89).

     In the present case the Commission notes that the police officers

B. and P. whom the applicant requested be heard, had already been heard

by the Investigating Judge in the presence of the applicant's defence

counsel who had been able to put questions to these witnesses. The

Commission considers that the Court of Appeal's finding that, even

though it doubted the existence of "the Aruban", it had in any event

not been established that the presence of this Aruban had influenced

the contents of the statement made and signed by the applicant cannot

be regarded as arbitrary or unreasonable. The Commission notes,

moreover,  that  the  procès-verbal  of  the  police  officer  P. of

6 December 1991 was not used in evidence by the Court of Appeal.

     As regards the request that the police officer in charge of the

investigation be heard as a witness, the Commission notes that the

prosecution department stated that it was not aware that there had been

any other police officers in charge of the investigation apart from

those who had already been heard by the Investigating Judge. Without

any further indication as to the identity of this police officer the

refusal of the Court of Appeal to summon this person as a witness does

also not appear arbitrary or unreasonable.

     Furthermore, it does not appear that in the course of the

criminal proceedings against him the applicant had no opportunity to

challenge the version of the police officers B. and P. or the other

evidence against him. As to the fairness of the proceedings taken as

a whole the Commission, noting that the applicant was convicted

following adversarial proceedings in which he was represented by a

lawyer, finds that the applicant was provided with ample opportunity

to state his case and to challenge the evidence against him and

considers that there is no indication that the criminal proceedings

against the applicant were not in conformity with the requirements of

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

     It follows that this part of the application must also be

rejected under Article 27 para. 2 (Art. 27-2) of the Convention as

being manifestly ill-founded.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

   M.-T. SCHOEPFER                              G.H. THUNE

      Secretary                                  President

to the Second Chamber                      of the Second Chamber