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. 20901/92                     by K.W.W.                     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 26 October 1994 by K.W.W. against the Netherlands and registered on 4 November 1992 under file No. 20901/92;        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 Chinese citizen born in 1946 in Po-On, China. At the time of the introduction of the application, he was detained in Leeuwarden, the Netherlands. Before the Commission he is represented by Ms. G.E.M. Later, a lawyer practising in The Hague.        The facts of the case, as submitted by the applicant, may be summarised as follows.        In August 1989 the police received information that since March or April 1989 a large number of restaurant owners from the Chinese community in the region of Overijssel were forced to make payments to an identified Chinese man. i.e. the applicant. If a restaurant owner was unwilling to pay, the state of health of the owner's family members was mentioned in passing. The applicant's telephone was tapped in August and September 1989. From the tapped conversations it appeared that the applicant was not only engaged in extortion activities but also in drug trafficking. In the course of the preliminary judicial   investigation the police became aware that members of the Chinese community were terrified of the applicant's group and noted that a number of them could by no means be persuaded to make any formal statement to the police for fear of reprisals.        The applicant, together with four other suspects, was arrested on 18 October 1989 and detained on remand. He was charged with multiple extortion, various drug offences and participation in an organisation whose aim is the commission of offences and summoned to appear before the Regional Court (Arrondissementsrechtbank) of Almelo on 23 January 1990.        On 4 January 1990 several Chinese restaurant owners called the police and informed the police that the applicant had called them from the remand centre at Zutphen telling them in couched terms that it would be better if they would refrain from making any statements against the applicant.        Following adversarial proceedings in which the applicant was represented by a lawyer, the Regional Court of Almelo convicted the applicant on 30 January 1990 of (a) multiple participation in the commission of extortion, (b) various drugs offences and (c) participation in an organisation whose aim is the commission of offences within the meaning of Section 140 para. 1 of the Criminal Code (Wetboek van Strafrecht) and sentenced him to ten years' imprisonment.        The Regional Court based its conviction on, inter alia, the statements made to the police by five owners of Chinese restaurants and by three family members of the restaurant owners. The restaurant owners, among whom K. and his business partner Y., stated that they had paid sums varying from 5,000 to 13,000 Dutch guilders to the applicant under threats of violence. A waiter stated that his employer had to pay 10,000 Dutch guilders, whereas he himself was invited by the applicant to engage in drug trafficking. The Regional Court also used in evidence the written records of a number of tapped telephone conversations from the applicant's telephone, the statements of the applicant, seven of his co-accused and a police officer who had witnessed that K. gave the applicant an envelope allegedly containing 5,000 Dutch guilders. The judgment further refers to a police report stating, inter alia, that many restaurant owners felt seriously threatened and refused to make a formal statement before the police out of fear of reprisals and that on 4 January 1990 the applicant had telephoned from the detention centre, where he was held on remand, to several restaurant owners, warning them in couched terms not to testify against him.        The applicant appealed to the Court of Appeal (Gerechtshof) of Arnhem. At the hearing of 4 October 1991, the applicant produced a written statement signed by K., in which the latter withdrew his incriminating statement made before the police. The applicant, who showed the statement to the Court but refused to hand it over, explained that he himself had drafted the statement. His wife had brought the statement to K. with the applicant's request to sign it if he agreed that he had never been extorted but rather had lent a sum of money to the applicant. The applicant's wife had returned the statement after K. had signed it. The applicant subsequently requested the Court to examine K. as a witness. The Court of Appeal rejected this request, considering:   <DUTCH>      "dat het hof het verzoek afwijst, nu niet is te verwachten      dat het nader horen van de getuige K. nieuwe, relevante      gegevens zou kunnen opleveren ten behoeve van de      verdediging van de verdachte, terwijl het horen van de      getuige K. ter terechtzitting door die getuige als      uitermate belastend zal worden ervaren.             Het hof is van oordeel dat verdachte, door het      achterwege blijven van oproeping van de getuige K.      redelijkerwijze niet in zijn verdediging kan worden      geschaad, temeer nu kennelijk zijdens verdachte pogingen      deze getuige te beïnvloeden zijn aangewend en diens   - als      aangever bij de politie afgelegde -   verklaring in      hoofdzaken overeenstemt met die van de eveneens als      aangever door de politie gehoorde Y."   <TRANSLATION>      "that the Court rejects the request, since it is not to be      expected that the further examination of the witness K.      could produce new and relevant facts for the accused's      defence, whereas the hearing of the witness K. before the      Court would be experienced as extremely cumbersome by this      witness.             In the Court's opinion one cannot reasonably find that      the accused has been prejudiced in his defence by the      failure to summon the witness K., the more so as apparently      attempts have been made from the side of the accused to      influence this witness and as his statements   - which he      made before the police -   largely coincide with those of      Y., who has likewise been heard by the police."        Following adversarial proceedings, in which the applicant was represented by a lawyer, the Court of Appeal, in its judgment of 18 October 1991, quashed the judgment of 30 January 1990, convicted the applicant of extortion, of having violated the Opium Act and of participation in an organisation whose aim is the commission of offences within the meaning of Section 140 para. 1 of the Criminal Code and sentenced him to ten years' imprisonment. The Court of Appeal based its conviction on the same evidence as the Regional Court, with some minor exceptions.          The applicant appealed in cassation to the Supreme Court (Hoge Raad). Referring to the Kostovski, Windisch, Delta and Isgrò cases, he argued that Article 6 para. 3(d) of the Convention had been violated as the Court of Appeal had rejected his request to hear K.. The applicant contested the reasoning of the Court of Appeal, that the rights of the defence were not impaired by the failure to summon the witness K., on the ground that it disregarded the fact that the defence had not been able to question K. at any stage of the proceedings.        In its judgment of 28 April 1992, the Supreme Court rejected the appeal in cassation. It held that the rejection of the request to hear K. was not unlawful, noting that the Court of Appeal had apparently considered that the only purpose of this hearing would be that K. would confirm the contents of the statement which was shown to the Court but not handed over, and that the Court of Appeal apparently had not considered K.'s written statement credible as it differed from his earlier statement to the police and as the statement had been drafted by the accused himself, who had his wife bring this statement to K. in order to have it signed by the latter.     COMPLAINTS   1.    The applicant complains under Article 6 paras. 1 and 3(d) of the Convention that the Court of Appeal rejected his request to hear K., whereas the defence had not been able to question him at any stage of the proceedings.   2.    The applicant further complains under Article 6 para. 3 (b) of the Convention that he had inadequate facilities for the preparation of his defence.     THE LAW        The applicant states that the domestic courts have violated Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention by rejecting his request to examine K. He also invokes Article 6 para. 3 (b) (Art. 6-3-b) of the Convention.        Article 6 (Art. 6) of the Convention, insofar as relevant, provides:        "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 time and 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, 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).        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. 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. 4.7.79, 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.        All the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. However, the use as evidence of statements obtained at the stage of the police inquiry and the judicial investigation is not in itself inconsistent with paragraphs 3(d) and 1 of Article 6 (Art. 6-1, 6-3-d), provided that the rights of the defence have been respected. As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he was making his statements or at a later stage of the proceedings (cf. Eur. Court H.R., Saïdi judgment of 20 September 1993, to be published in Series A no. 261-C, para. 43).        However, Article 6 para. 3 (d) (Art. 6-3-d) does not give an accused an unlimited 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. 9.10.86, D.R. 49 p. 86).        The Commission notes that the Court of Appeal was confronted with a contradiction between K.'s initial incriminating statement, which had been confirmed by the statement of his business partner Y. and a statement of a police officer who had witnessed that K. gave an envelope to the applicant, on the one hand, and on the other hand K.'s subsequent written declaration withdrawing his initial statement, which the applicant presented at the hearing on 4 October 1991. The Commission further notes that, apart from K., the applicant did not request that any other witnesses, who had made incriminating statements, be examined by the Court of Appeal.        Noting that K.'s written statement had been drafted by the applicant himself and had been brought to K. by his wife in order to have it signed by K., the Commission does not find that the Court of Appeal's reasoning in respect of the applicant's request to have K. examined before the Court of Appeal can be regarded as arbitrary or unreasonable in the circumstances of the present case.        As to the fairness of the proceedings taken as a whole the Commission, noting that the applicant was convicted following adversarial proceedings in which he was represented by a lawyer, finds that the applicant was provided with sufficient time and facilities for the preparation of his defence and was provided with ample opportunity to state his case and to challenge the evidence against him.        The Commission, observing that the applicant's conviction was not solely based on K.'s initial statement but also on a large number of other evidence against him, finds no indication that the criminal proceedings against the applicant were not in conformity with the requirements of Article 6 (Art. 6) of the Convention.        It follows that the application must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention for being manifestly ill-founded.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber          (K. ROGGE)                         (S. TRECHSEL)