CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 janvier 1992

.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 OF   Application No. 15435/89 by Hendrik BRITTING against the Netherlands     The European Commission of Human Rights (Second Chamber) sitting in private on 13 January 1992, the following members being present:     MM.S. TRECHSEL, President of the Second Chamber G. JÖRUNDSSON A. WEITZEL J.C. SOYER H. G. SCHERMERS H. DANELIUS Mrs.G. H. THUNE Mr.F. MARTINEZ L. LOUCAIDES   Mr.   K. ROGGE, Secretary to the Second 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 27 June 1989 by Hendrik BRITTING against the Netherlands and registered on 5 September 1989 under file No. 15435/89;   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 national, born in 1939.   When introducing his application he was serving a prison sentence at the prison of The Hague.   Before the Commission the applicant is represented by H.H.M. van Dijk, a lawyer practising in Oss.   The facts of the case, as submitted by the applicant, may be summarised as follows.   The facts of the case go back to 8 June 1986 when a certain R. was shot in a pub in Breda where he found himself in the company of D., V., L. and J.   He died on 4 August 1986.   On 10 August 1986, the applicant was arrested and subsequently charged with murder.   During some confrontations (so-called Oslo confrontations) which took place on 11 and 12 August 1986, the applicant was   pointed out as the gunman by the witnesses D., V. and L. who had already been heard at the beginning of the inquiry and who had given a description of the gunman.   Faced by a line-up of 6 persons amongst whom the applicant, these were asked individually whether the gunman was amongst them, and if so to point him out.   On 16 April 1987, the applicant was convicted and sentenced to 10 years' imprisonment for manslaughter by the Regional Court (Arrondissementsrechtbank) of Breda.   In his appeal to the Court of Appeal (Gerechtshof) of 's-Hertogenbosch, the applicant stated, inter alia, that the Oslo confrontations had not been properly carried out because four of the five persons lined up with him had a personal feature which was not mentioned in - or did not square with - the earlier description given by the three witnesses.    He therefore thought that these confrontations should not have been accepted as evidence.   During the trial before the Court of Appeal, a number of witnesses were heard including D., V. and L.   The Court also heard an expert witness for the defence who criticised the manner in which the Oslo confrontations were carried out.   After having heard the witnesses and experts, the President of the Court gave the defence and the prosecutor the opportunity to have questions put to them or to comment on their statements.   On 29 December 1987, the Court of Appeal confirmed the verdict of the Regional Court.   The Court however did not base its decision on the Oslo confrontations, but on other evidence namely, inter alia, the statements made at the beginning of the inquiry and at the hearing by the witnesses D., V. and L., the statement made by the victim himself before he died, and the testimonies of police officers and experts.   On 14 March 1989, the Supreme Court   (Hoge Raad) rejected the applicant's appeal on points of law.       COMPLAINT   The applicant complains under Article 6 para. 1 of the Convention that the trial against him was unfair on the grounds that the courts should have refused to accept as evidence either the Oslo confrontations or even the statements made by D., V. and L. as they were biased as a result of the incorrect confrontations.   He explains that four of the five persons who were lined up with him during the confrontations had a personal feature (height, stature, age, beard) which was not mentioned in - or did not square with - the earlier descriptions of the gunman given by the witnesses.   He also alleges that prior to the confrontations these witnesses had already been shown pictures of possible suspects among which pictures of him.     THE LAW   The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that the trial against him was unfair on the grounds that the Dutch courts should have refused to accept as evidence either the Oslo confrontations or even the statements made by D., V. and L. as these statements had become dubious as a result of the incorrect confrontations.   Article 6 para. 1 (Art. 6-1) of the Convention, as far as relevant, provides:   "1. In the determination of (...) any criminal charge against   him, everyone is entitled to a fair and public hearing...".   The Commission recalls that according to Article 19 (Art. 19) of the Convention, the duty of the Convention organs is to ensure the observance of the engagements undertaken by the Contracting States in the Convention.   In particular, it is not their function to deal with errors of fact or of law allegedly committed by a national court unless and insofar as they may have infringed rights and freedoms protected by the Convention (cf. Eur. Court H.R., Schenk judgment of 12 July 1988, Series A no. 140, p. 29 para. 45).   The Commission also recalls that under its established case-law, in order to determine whether Article 6 para. 1 (Art. 6-1) of the Convention has been complied with, it must examine the proceedings as a whole once they have been concluded (cf., inter alia, No. 9938/82, Dec. 15.7.86, D.R. 48 p. 21, No. 7945/77, Dec. 4.7.78, D.R. 14 p. 228).   The Commission further recalls that Article 6 para. 1 (Art. 6-1) of the Convention implies that everyone who is a party to proceedings shall have a reasonable opportunity of presenting his case to the Court under conditions which do not place him at a substantial disadvantage vis-à-vis his opponent.   It does not, however, prescribe rules on the admissibility and assessment of evidence, which are essentially matters for the national law.   The question of assessment of evidence is subject to the discretion of national tribunals.   It is therefore not for the Commission to decide whether or not domestic courts have correctly assessed evidence unless there is an indication that the judge has drawn grossly unfair or arbitrary conclusions from the facts before him (cf., inter alia, Eur. Court H.R., Kostovski judgment of 20 November 1989, Series A no. 166, p. 19 para. 39; No. 9000/80, Dec. 11.3.82, D.R. 28 pp. 127, 134).     The Commission will therefore consider whether the proceedings as a whole, including the way in which the evidence was taken, were fair.   It appears from the file that both in the Regional Court and in the Court of Appeal, the manner in which the Oslo confrontations had been carried out was at length discussed and that the Court of Appeal heard an expert witness for the defence who criticised the manner in which the confrontations were carried out.   Furthermore, the applicant, who was represented by a lawyer, was able to put forward other evidence, in writing and orally at the different stages of the procedure, and has submitted written and oral observations concerning the alleged unfairness of the confrontations.   Thus, he was able to prepare properly his defence and argue his case at the trial so that the courts could examine the evidence in the light of the submissions of the applicant.   The Commission also notes that the witnesses D., V. and L. could be examined and cross-examined during the hearings before the Regional Court and the Court of Appeal.   It also appears from the file that when reaching its decision, the Court of Appeal did not use the results of the confrontations. Furthermore, the Court did not only base its decisions on the statements given after the confrontations by D., V. and L.    It also took into account the statements made by these witnesses prior to the confrontations, the statement of the victim and the statements of police officers and experts.   The Commission considers that the reasons on which the domestic courts based their decisions are sufficient to exclude the assumption that the evaluation of the evidence had been arbitrary.   In these circumstances, the Commission finds that an examination of the proceedings as a whole does not disclose any appearance of a violation of Article 6 (Art. 6) of the Convention.   It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commission, unanimously           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Second Chamber      President of the Second Chamber             (K. ROGGE)                              (S. TRECHSEL)