CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 mars 1987

.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 }  AS TO THE ADMISSIBILITY     Application No. 12508/86 by Charles FAGAN against the United Kingdom             The European Commission of Human Rights sitting in private on 6 March 1987, the following members being present:                         MM. C.A. NØRGAARD, President                         G. SPERDUTI                         J.A. FROWEIN                         F. ERMACORA                         E. BUSUTTIL                         G. JÖRUNDSSON                         G. TENEKIDES                         S. TRECHSEL                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                         J. CAMPINOS                         H. VANDENBERGHE                    Mrs   G.H. THUNE                    Sir   Basil HALL                    Mr.   F. MARTINEZ                      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 20 November 1985 by Charles FAGAN against the United Kingdom and registered on 20 September 1986 under file No. 12508/86;           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 of Irish nationality born in 1944 and resident in Dublin.   He is currently serving a prison sentence on the Isle of Wight.           The facts as submitted by the applicant may be summarised as follows.           On 26 February 1984, the applicant was arrested by the police and taken to Woodford police station.   On 28 February 1984, he was moved to Islington police station, where he was charged with six others with conspiracy to contravene the 1971 Drugs Act.   On 29 February 1984, he appeared in the Magistrates' Court and was remanded in custody.   He was committed for trial on 2 April 1984 and on 8 March 1984, he was convicted of conspiracy to supply cannabis and sentenced to seven years' imprisonment.   He was also fined £30,000 but sentenced to an additional year on default in payment.           The applicant alleges that the detective-sergeant in charge of his case promised his co-defendant bail if the co-defendant would give evidence against the applicant.   A statement incriminating the applicant was afterwards used as evidence during the trial.   The applicant also alleges that, when interviewed himself by the detective-sergeant, he stated that he had never intended to supply the drug to anyone else.   He states that no written statements were recorded or shown to him concerning anything he said to the detective-sergeant and denies that he ever took part in any question and answer interview.   The police however produced a statement recording such interviews.   The applicant alleges that these were completely fabricated in order to secure a verdict of guilty against him.   The applicant also alleges that the detective-sergeant in charge of the case said that the applicant would be allowed bail if he gave the sergeant £7,500.   The applicant states that in 1984 a man was convicted of conspiracy to rob as a result of evidence deliberately planted by this detective-sergeant.   In December 1984, the Court of Appeal subsequently quashed the conviction.   Since then this detective-sergeant has been subjected to investigations concerning allegations of corruption and involvement in crime.           The applicant's defence during his trial was that this detective-sergeant had fabricated the evidence against him.   The prosecution did not call this officer as a witness and when the applicant requested that he be called as a witness by the Court so that he could be cross-examined by the defence, the judge refused.           The applicant appealed against conviction and sentence.   One of the grounds of appeal concerned the fact that the detective-sergeant in charge of his case had since been suspended from duty and charged with conspiracy to rob.   It also appeared that several trials had been abandoned as it was felt unsafe to proceed where the evidence had been tainted by this officer's involvement. The applicant submitted that the non-calling of this officer at the trial, where allegations of fabricated evidence were in issue, was a major omission.             Leave to appeal against conviction was refused by the single judge of the Court of Appeal.   The applicant renewed his application to the full court.   On 13 December 1985 his application for leave was granted by the Court, which proceeded immediately to a full appeal hearing.   The applicant was represented by counsel.           The Court held however that there was nothing improper in the decision of the prosecution or judge not to call the detective-sergeant as a witness, since he was clearly a suspect witness.   They pointed out that it had been open to the defence themselves to call him as a witness.   They also commented that since the officer had not been called as a witness, his evidence was not before the jury and played no part in the applicant's conviction.   His appeal was accordingly dismissed.     COMPLAINTS           The applicant complains that the prosecution and judge refused to call the detective-sergeant for cross-examination.   He states that his whole defence revolved around his allegations that this police officer fabricated the evidence against him and he was denied the opportunity to expose the character of the detective-sergeant.           He accordingly invokes Article 6 para. 3 (d) of the Convention.     THE LAW           The applicant complains of the refusal of the prosecution and judge to call the detective-sergeant involved in his case for cross-examination by the defence.           Article 6 para. 3 (d) (Art. 6-2-d) of the Convention 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 attendance and examination of witnesses on his         behalf under the same conditions as witnesses against him;         ... "           The Commission recalls that the essential purpose of this provision is to ensure equality between the defence and the prosecution as regards the summoning and examination of witnesses. It does not grant to the accused an unlimited right to secure the appearance of witnesses in court (see e.g.   Application No. 8417/78, Dec. 4.5.79, D.R. 16 p. 200).             In the present case, the Commission notes that though the prosecution and the judge declined to call this particular witness, it was still possible for the defence to call him.   The Commission also recalls that the matter was considered by the Court of Appeal which held that there was nothing improper in the decision of the prosecution or judge not to call the detective-sergeant, since he was clearly a suspect witness.   Further, since he had not been called as witness for the prosecution, his own evidence as officer in charge of the investigation had not been used against the applicant and could have played no part in the applicant's conviction.           In these circumstances, the Commission finds no elements which indicated that the Court went beyond its discretion in refusing to call this particular witness.   Accordingly an examination of the facts complained of does not disclose any appearance of a violation of the Convention and in particular of Article 6 para. 3 (d) of the Convention.           It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.           For this reason, the Commission           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                 President of the Commission                (H.C. KRÜGER)                               (C.A. NØRGAARD)