CEDH · CASELAW;REPORTS;ENG — 10 juillet 1991

.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 }  Application No. 13071/87   Derek EDWARDS   against   the UNITED KINGDOM   REPORT OF THE COMMISSION   (adopted on 10 July 1991)   TABLE OF CONTENTS                                                             page     I.       INTRODUCTION (paras. 1-17)                            1-3           A.   The application (paras. 2-4)                       1           B.   The proceedings (paras. 5-12)                     1-2           C.   The present Report (paras. 13-17)                 2-3     II.      ESTABLISHMENT OF THE FACTS (paras. 18-43)             4-11           A.   The particular circumstances of the case          4-7             (paras. 18-31)           B.   Relevant domestic law and practice                7-11             (paras. 32-43)     III.     OPINION OF THE COMMISSION (paras. 44-60)             12-15           A.   Complaints declared admissible                    12             (para. 44)             B.   Points at issue (para. 45)                        12             C.   As regards Article 6 paras. 1 and 3 (d)          12-14             of the Convention (paras. 46-54)                   Conclusion (para. 54)                         14             D.   As regards Article 13 of the Convention           15             (paras. 55-58)                   Conclusion (para. 58)                         15             E.   Recapitulation (paras. 59-60)                     15     Dissenting opinion of MM. Gözübüyük, Weitzel,                 16 Martinez and Rozakis, Mrs.   Liddy and Mr.   Geus       APPENDIX I      History of the proceedings                    17-18   APPENDIX II     Decision on the admissibility                 19-23                of the application 7.12.87   APPENDIX III    Decision on the admissibility                 24-35                of the application 9.1.91   I.       INTRODUCTION   1.      The following is an outline of the case, as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.       The application   2.      The applicant is a citizen of the United Kingdom, born in 1943, who at the time of lodging his application was detained in H.M. Prison Frankland, Durham, where he was serving a ten year prison sentence.   He was represented before the Commission by Mr.   J.K. Campbell, Solicitor, Messrs.   Freeman Johnson, Solicitors, Durham.   3.      The application is directed against the United Kingdom.   The respondent Government were represented by their Agent, Mr.   M.C. Wood, succeeded by Mrs.   A.F. Glover, and Ms.   D.L. Brookes, all of the Foreign and Commonwealth Office.   4.      The case concerns the applicant's complaint that he did not receive a fair hearing since the police withheld certain evidence at his trial.   The evidence was reviewed by the Court of Appeal, which criticised various aspects of the work of the police, but found that these matters did not render unsafe the applicant's convictions.   The application raises issues under Article 6 paras. 1 and 3 (d) and Article 13 of the Convention.     B.       The proceedings   5.      The application was introduced on 29 September 1986 and registered on 10 July 1987.   6.      The applicant's complaints were rejected by the Commission on 7 December 1987 for failure to comply with the six months' rule.   This decision was based on the assumption that the application had been introduced on 16 March 1987.   Later the applicant showed that he had sent a letter to the Commission on 29 September 1986 which was registered by the prison authorities as having been posted, but which was not received by the Commission.   On 13 July 1988 the President of the Commission restored the present complaints to the list.   7.      On 6 July 1989 the Commission decided to give notice of the application to the respondent Government, pursuant to Rule 42 para. 2 (b) of its Rules of Procedure (former version), and to invite the parties to submit their written observations on admissibility and merits.   8.      The Government's observations were submitted on 25 October 1989, to which the applicant replied in person on 25 November 1989. After an extension of the time-limit fixed, the applicant's representative submitted observations on 14 February 1990. 9.      On 15 December 1989 the applicant had been granted legal aid for his representation before the Commission.   10.      On 9 October 1990 the Commission decided to invite the parties to a hearing on admissibility and merits.   The hearing was held on 9 January 1991.   The Government were represented by its Agent, Ms.   D.L. Brookes, Mr.   D. Pannick, Counsel, Mr.   H. Carter, Home Office, and Mr.   H. Llewellyn, Foreign and Commonwealth Office.   The applicant was represented by Mr.   J.K. Campbell, Solicitor, and Mr.   B. Clarke, Counsel.   The applicant also attended the hearing.   Following the hearing and deliberations, the Commission declared the application admissible.   11.      On 23 January 1991 the parties were sent the text of the Commission's decision on admissibility and they were invited to submit further observations on the merits of the case.   The Government submitted observations on 27 February 1991.   The applicant submitted observations on 28 February 1991 and some further information about the Court of Appeal's practices on 15 March 1991.   The Government replied to the applicant's further observations on 16 April 1991.   12.      After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.     C.       The present Report   13.      The present Report has been drawn up by the Commission in pursuance of Article 31 para. 1 of the Convention and after deliberations and votes in plenary session, the following members being present:                   MM.   S. TRECHSEL, Acting President                      F. ERMACORA                      E. BUSUTTIL                      G. JÖRUNDSSON                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H. DANELIUS                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                 MM.   J.C. GEUS                      M.P. PELLONPÄÄ     14.      The text of this Report was adopted by the Commission on 10 July 1991 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   15.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is           1)   to establish the facts, and           2)   to state an opinion as to whether the facts found             disclose a breach by the State concerned of its             obligations under the Convention.   16.      A schedule setting out the history of the proceedings before the Commission is attached hereto as APPENDIX I and the Commission's decisions on the admissibility of the applications as APPENDICES II and III.   17.      The pleadings of the parties, together with the documents lodged as exhibits, are held in the archives of the Commission. II.      ESTABLISHMENT OF THE FACTS   A.       The particular circumstances of the case   18.      On 9 November 1984, the applicant was convicted at Sheffield Crown Court of one count of robbery and two counts of burglary.   The jury's decision was by a majority verdict of ten to two.   He received a sentence of imprisonment of ten years for the robbery, and two sentences of eight years each for the burglary offences.   All three sentences were to be served concurrently.   His application for leave to appeal against conviction and sentence was dismissed by a single judge of the Court of Appeal on 5 February 1985.   His renewed appeal to the Full Court, concerning sentence only, was dismissed on 21 May 1985.   19.      On 16 May 1985, the applicant petitioned the Secretary of State for Home Affairs with complaints against police officers who had investigated his case and given evidence at his trial.   An independent police investigation was ordered in the course of which certain facts came to the applicant's attention.   On 3 December 1985, the applicant applied for leave to appeal out of time.   The police report (unpublished), dated 5 December 1985, was delivered to the Police Complaints Authority which directed it to the Director of Public Prosecutions.   20.      In February 1986, the Director of Public Prosecutions decided that there was insufficient evidence to support criminal charges against the police officers, but recommended that disciplinary charges be brought against three police officers.   At the disciplinary hearing, 13 to 15 June 1988, the tribunal decided that there was no case to answer and dismissed the charges.   21.      In the meantime, on 21 March 1986, the Secretary of State for Home Affairs referred the applicant's case to the Court of Appeal (Criminal Division) under Section 17 (1)(a) of the Criminal Appeal Act 1968.   The applicant was represented in these proceedings by Queen's Counsel.   The reference was heard on 18 July 1986 and judgment delivered on the same date.   22.      The evidence against the applicant consisted of detailed verbal admissions that he was implicated in the offences.   The applicant's co-defendant had given the police information which led to the applicant's arrest and his subsequent unsigned confession.   He had maintained at his trial that these statements had been concocted by the police and his defence did not require any witnesses except the interviewing officers.   He protested his innocence and his truthfulness, pointing out that he had not denied his numerous misdeeds in the past, as could be verified from his criminal record over the years.   Before the Court of Appeal the applicant submitted that the verdict should be set aside as unsafe and unsatisfactory because of certain shortcomings in the prosecution case.   In particular it appeared that one of the police witnesses had stated under cross-examination by counsel for the applicant that no fingerprints were found at the scene of the crime.   In fact two fingerprints had been found which later turned out to be those of the next door neighbour who was a regular visitor to the house.   The applicant had not been informed of this before his trial.   23.      However the Court of Appeal rejected the allegation that the police officer had told lies at the trial in the following terms:   "We do not accept that interpretation of Detective Sergeant Hoyland's evidence.   We think quite plainly what he was indicating there and intended to indicate was that no fingerprints relating to either of the two alleged burglars were discovered at the scene:   neither the fingerprint of Rose nor the fingerprint of Edwards, the present appellant.   We do not think, had the matter been carried further, it would have been demonstrated that Hoyland was a person who to that extent could not be believed on his own."   24.      A further shortcoming was the fact that the police had shown two volumes of photographs of possible burglars (including a photograph of the applicant) to one of the victims - a lady of 82 years of age who had caught a fleeting glimpse of the burglar.   Her statement, read to the jury, said that she thought she would be able to recognise her assailant.   She did not pick out the applicant from the photographs.   This fact was not, however, mentioned by one of the police witnesses in a written statement read out to the jury and had not been indicated to the applicant before his trial.   Before the Court of Appeal counsel for the applicant submitted that a jury might have been led to believe, had they been informed of this fact, that the admission statements had been "manufactured" by the police as the applicant alleged, or to otherwise doubt the veracity of the police.   25.      The Court of Appeal also rejected this view:   "There again we do not take that view.   The fact that Miss Sizer had a fleeting glimpse of her assailant, and the fact that such identification as she did make was largely directed to other matters of identification rather than his features, leads us to believe that the jury would not have been influenced to act other than they did if they had the full story of the photographs and of Police Constable Esdon's activities with regard to that."   26.      Counsel for the applicant did not request the Court of Appeal to exercise their discretionary power to rehear evidence under section 23 of the 1968 Act (see para. 37 below) by, for example, cross-examining the police officers who gave evidence at the applicant's trial.   This was because the applicant's representatives considered that there was little prospect of such a request being granted. 27.      The Court of Appeal pointed to other shortcomings which it did not consider cast any doubt on the verdict, namely,   -        that the applicant was alleged to have been shown by the police a statement by a defendant although his finger- prints were not found on the statement;   -        a string which had tied the hands of one of the victims had been thrown away and not subjected to forensic examination;   -        an anorak which fitted the description given by one of the victims was found at the applicant's house but was not tested for fibres or for possible comparison with other items;   -        a stocking mask, found at the scene of the crime, was not tested for saliva, and a knife, which may have been used by the applicant, was not tested for finger-prints.   28.      As regards the latter points, the Court of Appeal remarked that the mask had not been tested because the applicant had never claimed to wear a mask.   In addition, the knife had been found lying out in the rain and the chances of finding finger-prints were thus minimal.   29.      The Court of Appeal considered that even if these matters had been investigated, it would have made no difference to the outcome. The Court concluded as follows:   "It is clear that there was some slipshod police work in the present case, no doubt because they took the view here was a man who had admitted these crimes fully, and consequently there was very little need for them to indulge in further verification of whether what he said was true. Although this is a matter which perhaps casts the police in a somewhat lazy or idle light, we do not think in the circumstances there was anything unsafe or unsatisfactory in the end about these convictions. Consequently, treating this matter as we have to according to section 17 of the Act, we think this appeal fails and must be dismissed."   30.      The applicant also took advice concerning the possibility of appealing to the House of Lords but was informed, in an opinion of counsel dated 8 September 1986, that there were no grounds on which an appeal could successfully be pursued before the House of Lords.   31.      The applicant petitioned the Secretary of State for Home Affairs on 3 June 1987 unsuccessfully asserting that the United Kingdom Government had an obligation to ensure that the applicant's rights under Article 6 paras. 1 and 3 (d) of the Convention were protected and that he was entitled under Article 13 of the Convention to have an effective remedy before a national authority for violations of rights and freedoms in the Convention.     B.       Relevant domestic law and practice   a)       Duty of prosecution in presenting evidence   32.      Under the Attorney General's Guidelines issued in December 1981, the prosecution is obliged (subject to specified discretionary exceptions) to disclose to the defence "unused material", which includes all witness statements not included in the bundle of statements served on the defence at the stage of committal of the case by the magistrates' court to the Crown Court.   33.      The prosecution is also under a duty to inform the defence of any earlier statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial (R v.   Clarke [1930] 22 Cr.App.R.58).   The prosecution's duty extends to informing the defence of previous inconsistent oral statements as well as written statements.   34.      Consequently where evidence of a prosecution witness is given before the court stating that the witness would recognise the accused again (as in the applicant's case), and the prosecution knows that when shown a photograph of the accused the witness in fact failed to identify him, the prosecution is required to make that fact known to the defence.   35.      For the purpose, among others, of ensuring compliance with this duty, the Court of Appeal has stated that all the statements which have been taken by the police should be put before Counsel for the Crown, and that it should not be left to the police to decide which statements are to be put before Counsel (R v.   Fellowes, 12 July 1985).   b)       Jury verdicts   36.      A jury's verdict may be either unanimous or by a majority.   It must be unanimous unless the trial judge, in accordance with section 17 Juries Act 1974, has directed, after at least two hours of unsuccessful jury deliberations, that a majority verdict will be accepted.   A majority verdict will be effective if, where there are not less than 11 jurors, 10 of them agree on a verdict, or, where there are 10 jurors, 9 of them agree on the verdict.   37.      If the jury do not agree on either a unanimous or a majority verdict, they may, at the discretion of the trial judge, be discharged, but such a discharge does not amount to acquittal and the accused may be tried again by a second jury.   In the event of a second jury disagreeing, it is common practice for the prosecution formally to offer no evidence (Halsbury's Laws of England 4th Edition Volume 11(2) paras. 1028 and 1037 ; Archbold Pleading, Evidence and Practice in Criminal Cases, 43rd Edition, Volume 1 paras. 4-444 to 4-447).   c)       Reference to the Court of Appeal by the Home Secretary   38.      Section 17 (1) a of the Criminal Appeal Act 1968 provides as follows:           "Where a person has been convicted on indictment, or been         tried on indictment and found not guilty by reason of         insanity, or been found by a jury to be under disability, the         Secretary of State may, if he thinks fit, at any time either:           (a) refer the whole case to the Court of Appeal and the case         shall then be treated for all purposes as an appeal to the         Court by that person; ..."   d)       Powers of the Court of Appeal   39.      The powers of the Court of Appeal in appeal proceedings are fully applicable to reference proceedings (Stafford v.   D.P.P. [1973] 3 WLR 719).   The scope of the Court of Appeal's powers on appeal is set out in section 2 of the Criminal Appeal Act 1968.   Section 2 provides as follows:           "(1) Except as provided by this Act, the Court of Appeal shall         allow an appeal against conviction if they think:                   (a) that the conviction should be set aside on the                 ground that under all circumstances of the case it is                 unsafe or unsatisfactory;                   (b) that the judgment of the court of trial should be                 set aside on the ground of a wrong decision of any                 question of law; or                   (c) that there was a material irregularity in the                 course of the trial,           and in any other case shall dismiss the appeal.           Provided that the Court may, notwithstanding that they         are of opinion that the point raised in the appeal might         be decided in favour of the appellant, dismiss the appeal         if they consider that no miscarriage of justice has         actually occurred.         (2) In the case of an appeal against conviction the Court         shall, if they allow the appeal, quash the conviction.           (3) An order of the Court of Appeal quashing a conviction         shall, except when under section 7 below the appellant is         ordered to be retried, operate as a direction to the court         of trial to enter, instead of the record of conviction, a         judgment and verdict of acquittal."   e)       New evidence on appeal   40.      Section 23 of the Criminal Appeal Act 1968 provides, insofar as material, as follows:           "(1)   For purposes of this part of this Act, the Court         of Appeal may, if they think it necessary or expedient         in the interests of justice -                   (a)   order the production of any document,                 exhibit or other thing connected with the                 proceedings, the production of which appears                 to them necessary for the determination of                 the case;                   (b)   order any witness who would have been                 a compellable witness in the proceedings                 from which the appeal lies to attend for                 examination and be examined before the                 Court, whether or not he was called in those                 proceedings; and                   (c)   subject to subsection (3) below, receive                 the evidence, if tendered, of any witness.           (2)   Without prejudice to subsection (1) above, where         evidence is tendered to the Court of Appeal thereunder         the Court shall, unless they are satisfied that the         evidence, if received, would not afford any ground         for allowing the appeal, exercise their power of         receiving it if -                   (a)   it appears to them that the evidence is                 likely to be credible and would have been                 admissible in the proceedings from which the                 appeal lies on an issue which is the subject                 of the appeal; and                   (b)   they are satisfied that it was not adduced                 in those proceedings but there is a reasonable                 explanation for the failure to adduce it.         (3)   Subsection (1)(c) above applies to any witness         (including the appellant) who is competent but not         compellable..."   41.      These powers of the Court of Appeal extend to rehearing evidence which has already been given at first instance if the Court thinks it necessary or expedient in the interests of justice (R v. Lattimore and Others [1976] 62 Cr.   App.   R. 53).   However it is unusual for the Court of Appeal to rehear evidence which has been tried and tested before a jury at first instance.   From information provided by the Deputy Registrar of the Criminal Appeal Office, it may be inferred that the Court would not itself rehear all the evidence rather than order a retrial.   These powers are thus normally confined to hearing fresh evidence or changed evidence which has arisen since the trial and which the jury did not have the benefit of hearing.   Even so such powers are infrequently used, in all probably not more than a dozen times a year.   The Court of Appeal nevertheless reads the transcript of the trial so that they are aware of the basis upon which the jury reached its findings.   42.      If the Court of Appeal considers that fresh evidence renders the verdict unsafe or unsatisfactory, it may order a retrial, or may simply quash the conviction and substitute a verdict of acquittal. The appropriate course will depend upon the particular facts of the case, as explained in the following passage from the judgment of Lord Cross in the House of Lords in Stafford v. the D.P.P. (at pp. 737-738):           "At one end of the scale there are cases where the court         will say:                   This fresh evidence puts such an entirely new                 complexion on the case that we are sure that a verdict                 of guilty would not be safe.   So we will quash the                 conviction and not order a new trial.           At the other end of the scale there will be cases where         the court will say as it said in effect of this case:                   The fresh evidence though relevant and credible                 adds so little to the weight of the defence case                 as compared with the weight of the prosecution's                 case that a doubt induced by the fresh evidence                 would not be a reasonable doubt.   So, we will                 leave the conviction standing.           But in many cases the attitude of the court will be:                   We do not feel at this stage sure one way or                 the other.   If this fresh evidence was given                 together with the original evidence and                 any further evidence which the Crown might adduce                 then it may be that the jury - or we, as we                 constituted the jury - would return a verdict of                 guilty but on the other hand it might properly                 acquit.   So we will order a retrial."   43.      The power to order a retrial was broadened by section 40 of the Criminal Justice Act 1988, in force since 1 August 1989 after the applicant's case.   Since then four retrials have been ordered but it may reasonably be assumed, according to the Deputy Registrar of the Criminal Appeal Office, that retrials were not more frequent before. There does not appear to have been any occasion when the Court of Appeal has itself heard all the witnesses who gave evidence at the trial (letter 4 March 1991 from the Deputy Registrar of the Criminal Appeal Office to the applicant's solicitor). III.     OPINION OF THE COMMISSION   A.       Complaints declared admissible   44.      The Commission has declared admissible the applicant's complaints that the withholding of certain information from him by the prosecution before and during his trial constituted breaches of his rights under Article 6 paras. 1 and 3 (d) and Article 13 of the Convention.     B.       Points at issue   45.      The following are the points at issue in the present application:   -        whether the prosecution's withholding of certain information from the applicant was in violation of paragraph 1, read in conjunction with paragraph 3 (d) of Article 6 of the Convention;   -        whether the applicant had effective domestic remedies for his Convention claims pursuant to Article 13 of the Convention.     C.       As regards Article 6 paras. 1 and 3 (d) of the Convention   46.      Article 6 para. 1, first sentence, provides as follows:           "In the determination of his civil rights and obligations         or of any criminal charge against him, everyone is entitled         to a fair and public hearing within a reasonable time by an         independent and impartial tribunal established by law."   47.      Article 6 para. 3 (d) reads 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;"   48.      The applicant submits that certain evidence was withheld from him and, therefore, not put before the jury at his trial.   As a result, his rights under the above provisions were allegedly violated.   This evidence was withheld by the police who, firstly, had stated at his trial that no fingerprints had been found at the scene of the crime, whereas, in fact, two fingerprints of a neighbour had been found (para. 22 above); secondly, the police failed to state at the trial that one of the prosecution witnesses had not identified the applicant's photograph in a police album, although she had thought that she would be able to identify the offender (para. 24 above).   The applicant also complains of other lacunae in the police inquiry (para. 27 above).   In his view the evidence that was withheld affected the credibility of the police witnesses in the case, which had turned on whether the confession by the applicant had been fabricated or not by the police.   Since the aforementioned evidence was not disclosed at the trial, he submits that he was not given an adequate opportunity to challenge the witnesses against him and that he did not receive a fair hearing.   He submits that the reference proceedings before the Court of Appeal did not cure this defect since the Court did not exercise its discretion to order a full rehearing of all the issues and evidence, but at best afforded him the opportunity of having a fragmentary procedure which led to overall unfairness.   49.      The Government submit that the proceedings must be looked at as a whole and that the applicant did receive a fair hearing.   He was afforded the opportunity of putting the new evidence before the Court of Appeal in reference proceedings, where he could also have applied for witnesses to be called and cross-examined.   He did not request the Court of Appeal to hear any witnesses.   In the Government's view Article 6 para. 3 (d) of the Convention is not relevant to the key issues in the present case, namely the failure by prosecuting authorities to disclose certain information which might assist the defence and, in particular, the credibility of the police witnesses in their evidence about the applicant's confession to them, which was the main evidence against the applicant.   This confession evidence was tested before the jury when the police officers were cross-examined by the applicant's counsel.   In the Government's submission the case calls for examination under Article 6 para. 1 of the Convention alone. In this respect they reiterate that the proceedings viewed as a whole cannot be deemed unfair given that the Secretary of State referred the issues to the Court of Appeal, which considered all the facts but concluded that, despite some slipshod aspects of the police's conduct, there was nothing unsafe or unsatisfactory about the applicant's conviction.   The Court of Appeal's judgment cannot be said to be arbitrary or so unfair, or questionable, as to entitle the Commission to substitute its judgment for that of the national courts (cf. inter alia No. 10862/84, Schenk v.   Switzerland, Comm.   Report 14.5.87 para. 56; Eur.   Court H.R., Monnell and Morris judgment of 2 March 1987, Series A no. 115, p. 20 and 25, paras. 49 and 69; Windisch judgment of 27 September 1990, Series A no. 186, p. 10, para. 25).   50.      The Commission considers that the provisions of Article 6 para. 3 (d) of the Convention are relevant to the present application. Whilst technically it is true that the applicant was able to cross-examine the police officers concerned about his confession, the information that they withheld from the defence and the jury may have affected the conditions under which that cross-examination took place and may have been relevant to their credibility.   Article 6 para. 3 (d) refers expressly to a parity of conditions for the examination of witnesses and to this extent is relevant to the present case.   51.      The guarantees of Article 6 para. 3 are specific aspects of the right to a fair hearing within the meaning of the first paragraph of Article 6 of the Convention.   Moreover in assessing whether defence rights have been secured under Article 6, the proceedings in question must be considered as a whole, including the proceedings before the appellate court.   It is, therefore, appropriate for the Commission to consider the applicant's complaints under Article 6 paras. 1 and 3 (d) taken together (cf.   Eur.   Court H.R., Windisch judgment of 27 September 1990, Series A no. 186, pp. 9 and 10, paras. 23 and 25).   52.      The manner of the application of Article 6 of the Convention to proceedings before an appellate court does, however, depend on the special features of the proceedings involved, seen in their domestic law context, account being taken of the role and functions of that court (Eur.   Court H.R., Ekbatani judgment of 26 May 1988, Series A no. 134, p. 13, para. 27).   Moreover, the assessment of evidence comes within the appreciation of independent and impartial domestic courts and cannot be reviewed by the Commission unless there is an indication that the courts have drawn unfair or arbitrary conclusions from the facts before them.   It is not the Commission's role to substitute its decision concerning the facts of the case for that of the national courts.   It can only consider whether the evidence has been presented in such a manner and the proceedings in general, viewed in their entirety, have been conducted in such a way that the accused had a fair trial (No. 10862/84 Schenk v.   Switzerland, Comm.   Report 10.5.87, at pp. 37-38, para. 56 of the annex to the judgment of 12 July 1988, Eur.   Court H.R., Series A no. 140).   53.      As regards the facts of the present case, the Commission notes that the applicant's conviction was mainly based on his confession to the police.   He had a full opportunity to challenge the manner in which that confession was obtained and to contest the police evidence at his trial.   The information which was withheld from the applicant was extensively considered by the Court of Appeal, whose task was to examine whether the applicant's conviction was unsafe or unsatisfactory as a result of the conduct and testimony of the police. The applicant also had a full opportunity to persuade the Court of Appeal as to the significance of that information, but in the light of all the evidence, including the trial transcript which was before it, the Court of Appeal rejected the applicant's contentions.   The Commission has no reason to doubt that the Court of Appeal's decision to dismiss the applicant's appeal was based upon thorough evaluation of the weight to be given to the information which had been withheld. There is no evidence in the present case that the Court of Appeal's decision was in any way unfair or arbitrary.   In the circumstances the Commission is of the opinion that the applicant was not denied a fair hearing in the proceedings against him, viewed as a whole.           Conclusion   54.      The Commission concludes, by 8 votes to 6, that there has been no violation of paragraph 1, read in conjunction with paragraph 3 (d) of Article 6 of the Convention. D.       As regards Article 13 of the Convention   55.      The applicant further complains that he had no effective domestic remedy in respect of his complaints under Article 6 of the Convention, contrary to Article 13.   He did not elaborate this complaint and the Government were not invited by the Commission to comment on the matter.   56.     Article 13 of the Convention provides as follows:           "Everyone whose rights and freedoms as set forth in         this Convention are violated shall have an effective         remedy before a national authority notwithstanding that         the violation has been committed by persons acting in an         official capacity."   57.      However, the Commission refers to the constant case-law of the Convention organs that Article 13, as a more general guarantee, is not applicable in cases where the more specific guarantees of Article 6 of the Convention apply.   In cases of the present kind, Article 6 constitutes the lex specialis in relation to Article 13, whose requirements are less strict and are, accordingly, absorbed by Article 6 (cf.   Eur.   Court H.R., Kamasinski judgment of 19 December 1989, Series A no. 168, pp. 45-46, para. 110, and Comm.   Report 5.5.88, p. 65, para. 206).           Conclusion   58he Commission concludes, by 12 votes to 2, that no separate issue arises under Article 13 of the Convention in the present case.     E.       Recapitulation   59.      The Commission concludes, by 8 votes to 6, that there has been no violation of paragraph 1, read in conjunction with paragraph 3 (d) of Article 6 of the Convention (para. 54 above).   60.      The Commission concludes, by 12 votes to 2, that no separate issue arises under Article 13 of the Convention in the present cas