CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 avril 1967

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   Whereas the facts of the case as presented by the Applicant may be summarised as follows:   The Applicant is a German citizen, born in 1901 and at present living in The Hague.   He has lodged two previous Applications with the Commission which were declared inadmissible on 11th April, 1961 (Application No.886/50) and on 2nd October, 1964 (Application No. 1795/63). The facts relating to the present Application, as they have been presented by the Applicant, may be summarised as follows:   1. As the Applicant considered that the North Holland Publishing Company (which was the editor of one of the Applicant's books) had defrauded him and told lies in the course of certain court proceedings, he sent a circular letter to some members of the Dutch Academy of Sciences, proposing that the Academy should break off relations with the publishing company concerned.   The editor complained to the Public Prosecutor of defamation and it seems that court proceedings were instituted against the Applicant.   The Applicant was apparently convicted and sentenced to a fine by the District Court (Arrondissements-Rechtbank) in The Hague on .. October, 1963, and his conviction seems to have been upheld on appeal by the Court of Appeal (Gerechtshof) in The Hague on .. March, 1964, and by the Supreme Court (Hoge Raad) on .. June, 1964.   The Applicant also asked for a retrial (herziening) but this application was rejected by the Supreme Court on .. September, 1964.   The Applicant states that in the proceedings against him he had asked the Public Prosecutor and the Attorney-General to call six witnesses in order to show that his circular letter to the Academy had been justified by 'public interest'. By letters of .. and .. February, 1964, the Attorney-General had rejected this request.   The Applicant submitted a similar petition to the President of the Court (apparently the Court of Appeal) who rejected it on .. February, 1964. He repeated his request orally during the trial, but without success.   He states that he also invoked this point in his appeal to the Supreme Court and that the Supreme Court rejected the appeal on the ground that it did not appear from the case-file that the Applicant had in fact asked leave to call the witnesses concerned. According to the Applicant, this was due to the fact that the Attorney-General had removed certain documents from the case-file before submitting it to the Supreme Court.   He alleges a violation of Article 6, paragraph (3) (d), of the Convention.   In regard to this complaint, the Applicant submitted inter alia the following documents:   (a) A letter of .. February, 1964, from the Attorney-General at the Court of Appeal; in this letter reference was made to the Applicant's request for a hearing of six witnesses and it was pointed out that the Court of Appeal could hardly make any such new investigation in the case. The Attorney-General proposed, therefore, that these witnesses should be heard by the investigating judge and asked the Applicant whether he agreed to this.   (b) The Applicant's reply to the Attorney-General, dated .. February, 1964. In this reply, the Applicant stated that he did not agree to the Attorney-General's proposal, since he found it necessary to hear the witnesses under oath and in public.   (c) The Attorney-General's letter of .. February, 1964, to the Applicant. By this letter, the Attorney-General informed the Applicant that he was unable to grant the Applicant's request for a hearing of the six witnesses before the Court of Appeal.   (d) The Applicant's letter of .. February, 1964, by which he asked the Court of Appeal to call the six witnesses. He complained of the refusal of the Attorney-General and stated that a hearing before the investigating judge as proposed by the Attorney-General did not serve any useful purpose.   (e) The reply of the Court of Appeal to the Applicant's letter under (d). The Registrar of the Court informed the Applicant that he could apply for a hearing of the six witnesses in connection with the oral pleadings before the Court and that Court would then decide whether there were reasons to hear the witnesses and adjourn the case.   (f) A press cutting of .. March, 1964, regarding the hearing of the Applicant's case by the Court of Appeal. In this press cutting, it was stated that the Applicant had asked the Court to call six witnesses (three professors, one lawyer, the publisher concerned and one Public Prosecutor) in order to prove that the statements made by him had been justified by the public interest. The Court of Appeal had declared that it did not consider it necessary to hear these witnesses and the President of the Court had also pointed out that the public interest could not justify the Applicant's acquittal, if the expressions used had been unnecessarily insulting.   (g) The Applicant's letter of .. July, 1964, to the Supreme Court. In this letter, the Applicant complained of the Supreme Court's decision of .. June, 1964. The Applicant referred to a statement by the Supreme Court according to which it did not appear that the witnesses concerned were included in 'the list of witnesses'. In the Applicant's opinion, this was due to the fact that the Supreme Court's file had been incomplete.   (h) The Supreme Court's decision of .. September, 1964, by which the Applicant's application for new proceedings was rejected. Among other reasons given for this decision, the Supreme Court pointed out that the fact that certain witnesses had not been called did not in itself justify new proceedings.   2. The Applicant states that, after having a dispute with the North Holland Publishing Company in respect of the publication of a book, he instituted civil proceedings against the company before the District Court in Amsterdam. He states that his claim was rejected by the Court on the ground that he "had relations to the (former) German Ambassador here, Dr. Mühlenfeldt, and through him to Minister von Brentano, German Minister of Foreign Affairs, and had made for the German Government two reports on Dutch mentality in general and attitude towards Germany especially".   The Applicant states that he then lodged a criminal charge with the Public Prosecutor, invoking Article 14 of the Convention, but that he was informed that the Public Prosecutor could not prosecute a court. The same position was taken by the Attorney-General.   He then asked the Court of Appeal in Amsterdam to institute criminal proceedings against the members of the District Court in respect of perversion of justice and violation of Article 14 of the Convention.   On .. November, 1964, the Court of Appeal dismissed his petition and indicated in its decision that, in so far as the Applicant alleged a violation of Article 14 of the Convention, he could lodge an application with the European 'Court' of Human Rights. He alleges that, by reason of his German nationality, he has been subjected to discrimination contrary to Article 14 of the Convention.   THE LAW   Whereas the Applicant's first complaint concerns the fact that in certain defamation proceedings he was not allowed to call six witnesses;   Whereas he submits that he wished to show, by the evidence to be given by these witnesses, that certain defamatory remarks which he had made had been justified by considerations of 'public interest';   Whereas the Applicant has submitted a number of documents relating to this complaint; whereas it appears from these documents that the Court of Appeal had reasonable grounds for rejection of the Applicant's request for a hearing of the witnesses concerned; whereas, in particular, the Court of Appeal seems to have considered that the principle of 'public interest' could not be invoked as a ground of justification, where unnecessarily insulting language had been used;   Whereas the Commission has consistently held that the provision of Article 6, paragraph (3) (d) (Art. 6-3-d), of the Convention does not give an accused person a general right to call witnesses on his behalf; whereas, in particular, a court is justified in refusing to summon witnesses whose statements could not be of any relevance in the case (see, for instance, Application No. 617/59, Yearbook III, pages 390 - 392);   Whereas the Commission is satisfied that in the present case there has been no violation of the Applicant's right "to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him" as guaranteed by Article 6, paragraph (3) (d) (Art. 6-3-d), of the Convention;   Whereas it follows that this part of the Application is manifestly ill-founded within the meaning of Article 27,paragraph (2) (Art. 27-2), of the Convention;   Whereas, in so far as the Applicant complains of discrimination in the civil proceedings before the District Court, it is to be observed that, under Article 25 (Art. 25) of the Convention, the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law; and whereas the Applicant has not shown that he appealed against the decision by which his claim was rejected by the District Court; whereas, therefore, he has not shown that he exhausted the remedies available to him under Netherlands law; whereas, moreover, an examination of the case as it has been submitted 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 exhausting the domestic remedies at his disposal; whereas, therefore, the condition as to the exhaustion of domestic remedies laid down in Articles 26 and 27, paragraph (3) (Art. 26, 27-3), of the Convention has not been complied with by the Applicant.   Now therefore the Commission declares this Application INADMISSIBLE.