FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39355/98 by Salli VARIÅžLI

against the Netherlands

The European Court of Human Rights ( First Section ), sitting on 27 April 2000 as a Chamber composed of

Mrs E. Palm, President , Mr J. Casadevall, Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mrs W. Thomassen, Mr R. Maruste, judges , and Mr M. O’Boyle, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 31 October 1997 and registered on 14 January 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1969, and, at the time of the introduction of the application, was detained in the Netherlands. He is represented before the Court by Mr G.P. Hamer, a lawyer practising in Amsterdam.

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

On 17 February 1993, the applicant, an employee of the Netherlands Railway Company, was arrested and taken into detention on suspicion of embezzlement and of having been involved in a robbery committed on 24 October 1992 at the Amsterdam Central Station. On 12 May 1993, following the applicant’s appeal against a decision of 25 March 1993 prolonging his pre-trail detention, the Court of Appeal ( Gerechtshof ) of Amsterdam ordered the applicant’s release from pre-trial detention.

After an initial summons had been withdrawn, the applicant was summoned to appear on 15 December 1993 before the Regional Court ( Arrondissementsrechtbank ) of Amsterdam. The judges dealing with his case would be Ms O. as President, and Ms P. and Mr B.

On 25 November 1993, the applicant filed an objection ( bezwaar ) against the summons. On 15 December 1993, after having deliberated, the Regional Court sitting in chambers ( Arrondissementsrechtbank in Raadkamer ), composed of Ms O., Ms P. and Mr B., rejected the objection. Subsequently and on the same day, the Regional Court commenced its examination of the charges brought against the applicant.

As the composition of the Regional Court was the same as that of the Regional Court sitting in chambers that had rejected the objection against the summons, the defence challenged ( wraking ) the three judges. After having deliberated, three other judges of the Regional Court rejected the challenge. The Regional Court, in its original composition, then resumed its examination of the applicant’s case.

In the course of 15 December 1993, the Regional Court took a short break in order to hand down its judgment in the criminal proceedings that had been brought against the co ‑ accused R.M. Sitting in the same composition as in the applicant’s case, the Regional Court convicted R.M. of the robbery committed on 24 October 1992.

After having become aware of this, the applicant challenged the Regional Court for a second time when later that day the court resumed its examination of his case. After having deliberated, three other judges of the Regional Court rejected the challenge. The Regional Court, in its initial composition, resumed its examination. It considered a request of the defence to take evidence from eleven witnesses, ordered that evidence should be taken from four of them and adjourned its further examination.

On 9 March 1994, the Regional Court heard evidence from the four witnesses whose appearance it had ordered on 15 December 1993 and heard the parties’ final pleadings.

In its judgment of 23 March 1994, the Regional Court convicted the applicant of robbery committed on 24 October 1992 at the Amsterdam Central Station, and participation in the commission of unlawful deprivation of liberty and embezzlement. The applicant filed an appeal with the Court of Appeal ( Gerechtshof ) of Amsterdam.

On 13 July 1994, the Court of Appeal started its examination of the applicant’s appeal. Further hearings were held on 9 November 1994 and 21 December 1995, in the course of which the Court of Appeal, inter alia , heard a number of witnesses.

In its judgment of 4 January 1996, the Court of Appeal quashed the judgment of 23 March 1994. On the basis of the full rehearing on both facts and law that had taken place before it, the Court of Appeal convicted the applicant of participation in a robbery and embezzlement, acquitted him of the remaining charges and sentenced him to four years’ imprisonment. It rejected the argument advanced by the defence that, given the composition of the Regional Court, the case should be referred back to the Regional Court as the Regional Court that had convicted the applicant could not be considered as an impartial tribunal in that the same judges had rejected the applicant’s objection against the summons and had already formed a view on the matter in that they had already convicted a co-accused. The applicant filed an appeal in cassation with the Supreme Court ( Hoge Raad ).

By judgment of 6 May 1997, the Supreme Court rejected the applicant’s appeal in cassation. It rejected the applicant’s arguments in relation to the alleged partiality of the Regional Court.

COMPLAINT

The applicant complains under Article 6 of the Convention that in the proceedings before the Regional Court, he did not receive a fair trial before an impartial tribunal as the same judges, who had rejected his objection against the summons and who had convicted a co-accused, tried and convicted him. He submits that, in these circumstances and on an objective basis, the Regional Court can no longer be regarded as impartial.

PROCEDURE

The application was introduced on 31 October 1997 and registered on 14 January 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW [Note1]

The applicant complains under Article 6 of the Convention that in the proceedings before the Regional Court, he did not receive a fair trial before an impartial tribunal as the same judges, who had rejected his objection against the summons and who had convicted a co-accused, tried and convicted him. He submits that, in these circumstances and on an objective basis, the Regional Court can no longer be regarded as impartial.

Article 6 of the Convention, insofar as relevant, provides:

“1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by an independent and impartial tribunal ….”

The Court considers that the question whether trial proceedings satisfy the requirements of Article 6 of the Convention can in principle only be determined by examining the proceedings taken as a whole; that is to say once they have been concluded. This does, however, not exclude the possibility that a particular element could be so decisive in itself that the fairness of the trial could be determined at an earlier stage.

The possibility certainly exists that a higher court might, in some circumstances, redress an initial violation of the Convention; this is precisely the reason for the existence of the rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention (cf. De Cubber v. Belgium judgment of 26 October 1984, Series A no. 86, p. 19, § 33).

As to the instant case, the Court observes that, although the Court of Appeal rejected the applicant’s arguments as to the alleged partiality of the Regional Court, it did in fact quash the Regional Court’s judgment of 23 March 1994 in its entirety on other grounds, thus setting aside all decisions taken in the first instance proceedings. On the basis of the full retrial on appeal, in the course of which issues of both fact and law were addressed, the Court of Appeal determined the charges brought against the applicant and the applicant’s sentence in relation of those offences of which it had found him guilty. It has not been argued and it has not appeared that the proceedings before the Court of Appeal fell short of the requirements of Article 6 of the Convention,

In the particular circumstances of the present case and even assuming that the proceedings before the Regional Court were not in conformity with Article 6 § 1 of the Convention, the Court cannot find, considering the proceedings at issue taken as a whole, that in the determination of the criminal charges against him, the applicant was deprived of a fair trial before an independent and impartial tribunal within the meaning of Article 6 of the Convention.

It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Elisabeth Palm Registrar President

[Note1] In your reasoning specify: Complaint / Article of the Convention [/ Succinct summary of Government’s submissions / Succinct summary of applicant’s submissions in communicated case] / Court’s [Commission’s] case-law, if any / Application of case-law to facts of particular case or considerations for specific facts of case.

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