CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 avril 1994

.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. 19769/92                     by J. H. S.                     against the Netherlands          The European Commission of Human Rights (Second Chamber) sitting in private on 6 April 1994, the following members being present:             MM.   S. TRECHSEL, President                H. DANELIUS                G. JÖRUNDSSON                J.-C. SOYER                H.G. SCHERMERS           Mrs. G.H. THUNE           MM.   F. MARTINEZ                L. LOUCAIDES                J.-C. GEUS                M.A. NOWICKI                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY             Mr.   K. ROGGE, Secretary to the 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 7 January 1992 by J.H.S. against the Netherlands and registered on 25 March 1992 under file No. 19769/92;        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 citizen, born in 1949, and resides at Amsterdam. Before the Commission she is represented by Mr. V. Kraal, a lawyer practising in Amsterdam.        The facts of the case, as submitted by the applicant, may be summarised as follows.        In June 1988, the applicant was charged with having repeatedly received stolen bank cheques in the period from May 1987 to March 1988. The applicant claimed to be innocent.        By judgment of 22 December 1988, the Regional Court (Arrondissementsrechtbank) of Haarlem found the applicant guilty and sentenced her to one year's imprisonment. The Regional Court based its conviction mainly on the statements made by J. and O., who had declared that they had repeatedly sold bank cheques, which they had previously stolen from post boxes, to the applicant. An earlier conviction of the applicant of receiving stolen goods was taken into account in the determination of the sentence.        Both the applicant and the public prosecutor filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam.        On 9 June 1989, the Court of Appeal heard J. as a witness, who then withdrew his previous statement. He declared that the applicant was wrongly accused and asserted that his earlier statement had been motivated by a dispute with the applicant. At the request of the public prosecutor (procureur-generaal), the presiding judge of the Court of Appeal proceeded under Article 293 of the Code of Criminal Procedure (Wetboek van Strafvordering), which deals with suspicion of perjury. He warned the witness of the consequences of possible perjury, after which J. repeated his statement and signed a separate procès-verbal containing his statement. Following the applicant's request thereto, the Court of Appeal decided to adjourn its examination for an unspecified period pending the outcome of the investigation into the possible perjury of witness J.        The Court of Appeal resumed its examination on 10 October 1989. As the composition of the Court of Appeal had changed, the Court of Appeal made a full new examination of the case and heard witness J., who repeated his statement of 9 June 1989, and witness O., who also withdrew his previous incriminating statement. O. declared that he had never sold any stolen bank cheques to the applicant and that he had made his earlier statement under pressure of the police officers who had interrogated him. At the request of the public prosecutor, the procedure of Article 293 of the Code of Criminal Procedure was also applied to witness O. The procès-verbal containing his statement was annexed to the procès-verbal of the hearing under the heading "suspicion of perjury" ("verdenking meineed"). The applicant and her lawyer were provided with the opportunity to question the witnesses J. and O., and to comment on the witnesses and their statements.          The applicant again requested the Court of Appeal to adjourn the hearing pending an investigation into possible perjury by one or both witnesses. The Court of Appeal rejected this request, finding no apparent reason for such an adjournment. The applicant further requested the Court of Appeal to refer the case back to the investigating judge (rechter-commissaris) for a further examination of the case. Following the applicant's final address to the Court, in which she claimed her innocence, the presiding judge declared the Court of Appeal's examination closed and set the date for the pronouncement of the judgment.        By judgment of 24 October 1989, the Court of Appeal quashed the judgment of 22 December 1988 on the basis of a different finding in respect of the evidence, convicted the applicant of habitual intentional buying of unlawfully obtained objects and sentenced her to eighteen months' imprisonment of which six months suspended pending a probation period of two years. The Court of Appeal based its conviction on the applicant's statement before the Court of Appeal and   the initial incriminating statements of J. and O. before the Regional Court. An incriminating statement made by a third witness T. before the police was used as supportive evidence.        In her subsequent appeal in cassation to the Supreme Court (Hoge Raad) the applicant argued, inter alia, that the Court of Appeal had violated Article 6 of the Convention by rejecting her request to adjourn the proceedings until the investigation into possible perjury by the witnesses had been completed. The applicant maintained that pursuant to Article 6 of the Convention the defence should be entitled to know the results of this investigation and to challenge them if necessary. The applicant also complained that no decision had been taken with respect to her request to have the case referred back to the Regional Court.        In its judgment of 16 September 1991, the Supreme Court rejected the appeal in cassation, considering that, within the limits set by law, the assessment of evidence, which they consider reliable, is within the competence of the judges finding the facts. It further held that, since the applicant's request to refer the case back to the investigating judge was of such a general nature, the Court of Appeal was under no legal obligation to determine it.     COMPLAINTS   1.    The applicant complains under Article 6 paras. 1, 2 and 3 (d) of the Convention that the Court of Appeal rejected her request to adjourn the proceedings pending the outcome of the investigation into possible perjury by the witnesses J. and O. The applicant argues that pursuant to Article 6 of the Convention the defence is entitled to know the results of such an investigation and to challenge them if necessary.   2.    The applicant further complains under Article 6 that the Court of Appeal failed to determine her request to refer the case back to the investigating judge.       THE LAW        The applicant complains under Article 6 paras. 1, 2 and 3 (d) (Art. 6-1, 6-2, 6-3-d) of the Convention that the Court of Appeal rejected her request to adjourn the proceedings pending the outcome of the investigation into possible perjury by the witnesses J. and O. and that it failed to determine her request to refer the case back to the investigating judge.        Article 6 (Art. 6) of the Convention, insofar as relevant, reads:        "1. In the determination (...) of any criminal charge      against him, everyone is entitled to a fair (...) hearing      (...) by [a] (...) tribunal (...).        2. Everyone charged with a criminal offence shall be      presumed innocent until proved guilty according to law.        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 at the outset that it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights or freedoms set out in the Convention (cf. No. 12013/86, Dec. 10.3.1989, D.R. 59 p. 111).        In the present case the applicant complains under Article 6 (Art. 6) of the Convention that she did not receive a fair trial in the determination of the criminal charges against her, in that her conviction was founded on certain statements, which in the course of the proceedings against her were withdrawn. As the guarantees in paras. 2 and 3 (d) of Article 6 (Art. 6-2, 6-3-d) are specific aspects of the right to a fair trial set forth in paragraph 1 (Art. 6-1), the Commission will consider the complaints under the three provisions taken together (cf. Eur. Court H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10 para. 25).        The Commission recalls that the taking of evidence is governed primarily by the rules of domestic law and that it is in principle for the national courts to assess the evidence before them (cf. most recently, Eur. Court H.R., Saïdi judgment of 20 September 1993, to be published in Series A no. 261-C, para. 43). More in particular, where a court is confronted with a contradiction between an earlier statement and subsequent evidence at the trial, it is the task of this court to consider the credibility of the declarations of the witness involved (cf. No. 8414/78, Dec. 4.7.1979, D.R. 17 p. 231). The task of the Convention organs in this respect is to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair (Saïdi judgment, ibid., para. 43).            Given that the applicant and her lawyer were provided with ample opportunity before the Court of Appeal to question the witnesses J. and O. and to challenge their earlier statements and the other evidence before the Court, the Commission cannot find that in this respect the applicant was deprived of a fair hearing as required by Article 6 (Art. 6) of the Convention.        As to the applicant's complaint that the Court of Appeal failed to decide her request to refer the case back to the investigating judge, the Commission does not find that this affected the fairness of the criminal proceedings at issue.        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)