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. 20489/92                     by Caspar ISING                     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 30 April 1992 by Caspar ISING against the Netherlands and registered on 10 August 1992 under file No. 20489/92;        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 1960, and resides at Kaatsheuvel.        The facts of the case, as submitted by the applicant, may be summarized as follows.        In October 1986, the police seized two cars owned by the applicant. The cars were not insured and had not been subjected to the periodical inspection which is required by law. On 1 June 1987 the District Court (Kantongerecht) of Tilburg sentenced the applicant to a fine and imposed a conditional suspension of his driving licence for three months. The District Court further ordered the confiscation of the two cars.        Following the applicant's appeal, the Regional Court (Arron- dissementsrechtbank) of Breda, in its judgment of 14 December 1987, quashed the decision of 1 June 1987, lowered the fine and decided that only one car be confiscated.   The conditional suspension of his driving licence was upheld.        The applicant appealed in cassation to the Supreme Court (Hoge Raad). He also submitted a complaint to the Procurator General (Procureur-generaal bij de Hoge Raad) on 8 December 1988. He complained that the President of the Regional Court had been biased against him and that the procès-verbal of the hearing before the Regional Court was inadequate. Pursuant to Section 14a of the Act on the Judicial Organisation (Wet op de Rechterlijke Organisatie), the applicant requested the Procurator General to submit his complaints to the Supreme Court in order to have them investigated. The Procurator General, after having investigated the case, rejected the request by letter of 28 January 1989.        On 2 May 1989 the Supreme Court quashed the Regional Court's judgment on formal grounds and referred the case to the Court of Appeal (Gerechtshof) of 's-Hertogenbosch for a full new examination of the applicant's appeal against the decision of 1 June 1987.        In the course of the subsequent proceedings before the Court of Appeal, the applicant wanted to make recordings at the hearing, but the President prohibited this. Five witnesses were heard, among whom three policemen. The Court of Appeal refused the applicant's request to summon two further policemen for an examination before the Court of Appeal, finding no grounds for granting this request. On 30 March 1990 the applicant was convicted and sentenced to a fine whereas one car was confiscated.        The applicant again appealed in cassation to the Supreme Court. Referring to Article 6 of the Convention, he complained, inter alia, that he was denied the possibility to make recordings at the hearing before the Court of Appeal and that his request to hear two further witnesses had been rejected.          The Supreme Court rejected the appeal on 5 November 1991. It held, inter alia, that generally speaking the right to have "adequate facilities for the preparation of his defence", as provided for by Article 6 of the Convention, does not include the right to make recordings of the hearing, whereas the applicant had not shown any special circumstances warranting an exception to this rule. With respect to the second complaint, the Supreme Court held that the Court of Appeal could reasonably have considered that it was unnecessary to hear two more witnesses, whereas the applicant had not substantiated the importance of hearing these witnesses.     COMPLAINTS        The applicant complains under Article 6 paras. 1 and 3 of the Convention that his request to hear two further witnesses was rejected and that he was denied the possibility to make recordings at the hearing before the Court of Appeal.        The applicant complains under Article 13 of the Convention that the Procurator General rejected his request for a Supreme Court investigation of his complaints relating to the President of the Breda Regional Court and the procès-verbal of the hearing before the Regional Court which he considered inadequate.     THE LAW   1.    The applicant complains under Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention that his request to hear two further witnesses was rejected and that he was denied the possibility to make recordings at the hearing before the Court of Appeal.        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 (...).      (...)      3. Everyone charged with a criminal offence has the      following minimum rights:      (...)      (b) to have adequate (...) facilities for the preparation      of his defence;      (...)      (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."        As the guarantees in para. 3 of Article 6 (Art. 6-3) 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 two provisions taken together (cf. Eur.Court H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10 para. 25).          In respect of the complaint that the Court of Appeal rejected the applicant's request to examine two further witnesses the Commission recalls that   Article 6 (Art. 6) of the Convention does not give the accused an absolute right to obtain the examination of witnesses on his behalf. The judge may refuse to hear a witness if he considers that the witness's statement would not be relevant (cf. No. 10486/83, Dec. 9.10.1983, D.R. 49 p. 86).        The Commission observes that the Court of Appeal, having heard five witnesses, considered it unnecessary to summon two further witnesses. The applicant has not submitted any details in support of his general complaint that the refusal to hear these witnesses affected the fairness of his trial.        The Commission, consequently, finds no indication that the Court of Appeal failed to consider relevant evidence or that it rejected the applicant's request in an arbitrary and unfair manner, and that, therefore, the Court's rejection of the applicant's request rendered the hearing of his case unfair.        As to the applicant's complaint that he was prohibited from recording during the proceedings before the Court of Appeal, the Supreme Court held that, generally speaking, the right to have "adequate facilities for the preparation of his defence" does not include the right to make recordings of the hearing, whereas the applicant had not shown any special circumstances warranting an exception to this rule. The Commission finds that the applicant has not shown that the prohibition at issue prejudiced his right to a fair hearing as guaranteed by Article 6 (Art. 6) of the Convention and, consequently, finds no indication in the case- file that the criminal proceedings against the applicant were unfair in this respect.        It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant further complains that the Procurator General rejected his request for a Supreme Court investigation of his complaints relating to the President of the Breda Regional Court and the procès-verbal of the hearing before the Regional Court which he considered inadequate. He relies on Article 13 (Art. 13) which provides:        "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."        The Commission notes that, following the applicant's appeal in cassation, the Supreme Court quashed the judgment of the Regional Court of Breda on formal grounds and referred the case to the Court of Appeal of 's-Hertogenbosch, which again examined the applicant's appeal.          In these circumstances, the Commission considers that the applicant can no longer claim to be a victim of a violation of the Convention within the meaning of Article 25 (Art. 25) of the Convention in respect of the proceedings before the Regional Court of Breda.        It follows that this complaint must be rejected under 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)