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. 20774/92                     by Evert Hendrik HOOS                     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 3 July 1992 by Evert Hendrik HOOS against the Netherlands and registered on 7 October 1992 under file No. 20774/92;        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 1946, and detained in Sittard. Before the Commission he is represented by Mr. A.H. Westendorp, a lawyer practising in The Hague.        The facts of the case, as submitted by the applicant, may be summarised as follows.        The applicant was the external adviser of "Toetanchamon", a private security service, of which his wife was the director.        On 22 November 1988, the newspaper "Haagsche Courant" published a critical article about the activities of Toetanchamon. That night fire broke out in two offices of the newspaper's publisher. In the following weeks other offices of the publisher and several public buildings, including a police station and a building of the Social Security Service, were attacked. Two bombs exploded during a football match. On 24 December 1988, an Alderman of The Hague received a booby-trapped lamp in the mail. By coincidence the bomb, which was hidden in the lamp, did not explode.        On 27 December 1988, the police arrested two employees of Toetanchamon on the suspicion of involvement in the series of attacks. Three other employees were arrested on 30 December 1988, 16 January 1989 and 1 February 1989 respectively. The applicant was arrested on 15 January 1989.        On 13 April 1989, the applicant was charged with a large number of offences. Before the Regional Court (Arrondissements- rechtbank) of The Hague, the public prosecutor relied on the statements of four employees of Toetanchamon (hereinafter referred to as the co-accused), who had indicated that the applicant had planned the attacks and had given them specific orders in this respect. All statements had been made before the police during the preliminary investigation. The applicant, who denied all charges, dismissed the incriminations as lies solely designed to minimise the co-accused's own responsibility. It does not appear from the case file that the applicant requested these witnesses to be examined before the Regional Court.        On 11 May 1989, the Regional Court convicted the applicant of (a) premeditated participation in an attempt to commit grievous bodily harm (poging tot medeplegen van zware mishandeling, gepleegd met voorbedachte rade) (b) multiple participation in the deliberate commission of arson, causing danger to goods, (c) incitement, by abusing his powers, to participate in the deliberate commission of arson, causing danger to lives of others and to goods, and (d) participation in the deliberate causing of an explosion, causing danger to goods. The applicant was sentenced to twelve years' imprisonment. In its judgment, the Regional Court referred in particular and at length to the statements of the four co-accused.        Both the applicant and the public prosecutor appealed to the Court of Appeal (Gerechtshof) of The Hague. At the defence's request, six witnesses were examined before the Court of Appeal. The four co-accused were not examined. It does not appear that the defence expressed the wish to hear the co-accused or that the defence requested the Court of Appeal to examine them.          In its judgment of 19 July 1990, the Court of Appeal quashed the Regional Court's judgment and, after a new examination of the facts and evidence, convicted the applicant of (a) premeditated participation in an attempt to commit grievous bodily harm, (b) multiple participation in the deliberate commission of arson, causing danger to goods, and (c) multiple participation in the deliberate causing of an explosion, causing danger to goods and sentenced the applicant to ten years' imprisonment. Like the Regional Court, it relied mainly on the statements of the four co-accused. In its judgment, the Court rejected a complaint that two police officers had taken certain documents, allegedly concerning the applicant's defence, from his cell, while he was interrogated in another room by a third officer. The Court, although acknowledging that these documents had been in the hands of the police for about 20 minutes, did not find it established that these documents concerned the applicant's defence or that the officers had in fact taken these documents away or copied them. Noting that the applicant refused to disclose the actual contents of these documents, it did not find that the rights of the defence had been impaired by this incident or that the investigation as such had been unfair.        The applicant appealed in cassation to the Supreme Court (Hoge Raad). Referring to the Unterpertinger, Kostovski and Cardot cases, he submitted, inter alia, that Article 6 of the Convention had been violated. He argued that his conviction had been based solely on the statements of the four co-accused, who had tried to minimise their own responsibility. In the criminal procedures against the co-accused themselves the Regional Court had already accepted these statements to be valid, and the applicant had been unable to challenge them. He also argued that his rights under Article 6 had been violated by the taking away of certain documents from his cell.        In its judgment of 21 January 1992, the Supreme Court rejected the appeal in cassation. It held that the Court of Appeal could use the statements of the four co-accused in evidence, taking into account that the applicant had at no stage requested to have these witnesses examined before the trial courts, which would have enabled him to examine them. As to the complaint about the taking of the applicant's correspondence, the Supreme Court accepted the rejection by the Court of Appeal.     COMPLAINTS        The applicant complains under Article 6 paras. 1 and 3(d) of the Convention that he has been convicted on the basis of statements made by four co-accused in proceedings in which he had not been a party. He submits that he has been unable to challenge these witnesses. The applicant admits that he did not request, at any stage of the proceedings, to have the co-accused examined before the court, but referring to the Commission's decision in the Cardot case he argues that this is irrelevant as the co- accused should have been summoned ex officio.        The applicant further complains under Article 6 of the Convention that policemen took certain documents from his cell, containing information about his trial, so that they could anticipate the arguments the defence would present at his trial.   THE LAW   1.    The applicant complains under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention that he was convicted on the basis of statements made at their trial by four co-accused, who were not examined at his trials before the Regional Court and the Court of Appeal.        The Commission recalls that, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.        The mere fact that the applicant has submitted his case to the various competent courts does not of itself constitute compliance with this rule. It is also required that the substance of any complaint made before the Commission should have been raised during the proceedings concerned. In this respect the Commission refers to its established case-law (cf. No. 1103/61, Yearbook 5 pp. 168, 186; No 5574/72, Dec. 21.3.75, D.R. 3 pp. 10, 15; No. 10307/83, Dec. 6.3.84, D.R. 37 pp. 113, 120). Moreover, domestic remedies have not been exhausted where an appeal is not admitted because of a procedural mistake by the applicant (cf. No. 10636/83, Dec. 1.7.85, D.R. 43 p. 171; No. 10785/84, Dec. 18.7.86, D.R. 48 p. 102).        The Commission recalls that, at his trials before the Regional Court and the Court of Appeal, the applicant did not ask that the four co-accused be heard as witnesses. The Supreme Court referred to this failure when rejecting his complaint concerning the use of that evidence.        The Commission concludes that the applicant has failed to raise before the appropriate domestic courts, i.e. the Regional Court and the Court of Appeal, the issue now raised before the Commission and, by the use of the procedural means available at his trial, to obtain the hearing of the co-accused at his trial (cf. Eur. Court H.R., Cardot judgment of 19 March 1991, Series A no. 200, p. 18, para. 34).        The applicant claims that he was absolved from the obligation to raise the issue at his trial because the courts should ex officio have called the co-accused as witnesses. The Commission, however, does not find that an applicant is absolved from the obligation to exhaust domestic remedies whenever a domestic authority should act ex officio (cf. No.11244/84, Dec. 2.3.87, D.R. 55 p. 98).        It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention and his application must in this respect be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicant also complains under Article 6 (Art. 6) of the Convention that two police officers took certain documents concerning his trial from his cell, while he was interrogated in another room by a third officer.                  The Commission recalls that the domestic courts did not find it established that these documents concerned the applicant's defence or that the officers had in fact taken these documents away or copied them.          The Commission, finding no indication in the case-file that the information contained in these documents concerned the applicant's defence or were used against the accused during the trial, considers that the applicant has failed to substantiate this complaint.        It follows that this complaint must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention for being manifestly ill-founded.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber          (K. ROGGE)                         (S. TRECHSEL)