CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 mai 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. 23508/94                       by Hayati SAN                       against the Netherlands         The European Commission of Human Rights (Second Chamber) sitting in private on 11 May 1994, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  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 November 1993 by Hayati SAN against the Netherlands and registered on 17 February 1994 under file No. 23508/94;         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 Turkish citizen, born in 1957 and residing at Apeldoorn, the Netherlands. He is represented before the Commission by Mrs. A. J. Zeyl, a lawyer practising at Zutphen, the Netherlands.         The facts, as submitted by the applicant, may be summarised as follows.         On 18 October 1991 the applicant was convicted by the Regional Court (Arrondissementsrechtbank) of Zutphen of complicity in narcotics offences and sentenced to four years' imprisonment. On 31 March 1992 the Court of Appeal (Gerechtshof) of Arnhem acquitted the applicant in respect of some of the charges but confirmed the conviction in respect of one charge and confirmed the prison sentence of four years.         The applicant lodged an appeal in cassation with the Supreme Court (Hoge Raad). In his appeal he stated that he and another person, K., had both been suspected of having committed the same criminal offence but only the applicant, and not K., had been charged with the offence. Moreover, the proceedings against three other persons, C., H. and P., had been conducted separately and had resulted in prison sentences of two and a half years and three years respectively, whereas the applicant had been sentenced to four years' imprisonment. In these respects there was a lack of equal treatment and arbitrariness. Moreover, the Court of Appeal had not given any reasons for rejecting the applicant's arguments on these points.         In its judgment of 18 May 1993 the Supreme Court stated that the Court of Appeal ought to have given reasons for rejecting the applicant's arguments. However, this did not mean that its judgment had to be quashed since there were grounds on which the Court of Appeal could have rejected the applicant's arguments. In particular, the fact that one suspect and not his accomplice is prosecuted did not, in the view of the Supreme Court, justify the conclusion that there was a breach of the principle of equal treatment or that the authorities had acted in an arbitrary way. Moreover, the separation of proceedings against several accomplices could not be objected to on the ground that this could lead to a difference in the severity of the penalties. On these grounds the Supreme Court rejected the applicant's appeal.   COMPLAINTS         The applicant complains of violations of Articles 6 and 14 of the Convention in that, on the one hand, the applicant, but not his accomplice K., was prosecuted and, on the other hand, the case of C., H. and P., which formed one whole together with the applicant's own case, was separated from that case with the result that the applicant was punished more severely than these three co-accused. He also complains of the Court of Appeal's failure to give reasons for the rejection of his appeal insofar as it was based on these procedural deficiencies.   THE LAW         The applicant complains of violations of Articles 6 and 14 (Art. 6, 14) of the Convention in that he, as regards his prosecution and sentence, did not receive the same treatment as his accomplices K., C., H., and P.         Article 6 para. 1 (Art. 6-1) of the Convention provides, insofar       as relevant:         "In the determination of ..... any criminal charge against him,       everyone is entitled to a fair ..... hearing ..... by an       independent and impartial tribunal established by law."         Article 14 (Art. 14) of the Convention provides:         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any ground       such as sex, race, colour, language, religion, political or other       opinion, national or social origin, association with a national       minority, property, birth or other status."         The Commission notes that the main question in the present case is whether the applicant has been discriminated against in the enjoyment of his right to a fair court hearing guaranteed by Article 6 (Art. 6) in that he was treated differently, and more severely, than four other persons who had been involved in the same criminal acts. One of these four persons had not been prosecuted and the other three had been sentenced to shorter terms of imprisonment than the applicant.         It must be emphasised that the domestic prosecuting authorities are in the best position to evaluate whether the case against a certain person is sufficiently strong for criminal proceedings to be brought against him and that, where there are two suspects, there may well be differences as regards the evidence which justify that proceedings are brought only against one of them. Moreover, as regards the determination of penalties, the courts having heard a case are in the best position to make such a determination which is often based not only on the gravity of the offence but also on a number of other factors such as the character of the accused and his criminal record and general way of life.         Having regard to these general considerations, the Commission cannot find it established that the situation of the four persons with whom the applicant compares himself was identical to that of the applicant himself insofar as the bringing of criminal proceedings and the imposition of punishment were concerned. For these reasons, it has not been shown that the applicant has been the subject of discriminatory treatment.         Furthermore, as regards the failure of the Court of Appeal to give reasons for its rejection of the applicant's arguments on these points, the Commission notes that the Supreme Court, in its judgment of 18 May 1993, indicated the reasons justifying the rejection of these arguments. Consequently, any deficiency in the Court of Appeal's judgment in regard to this matter must be considered to have been remedied by the Supreme Court.         It follows that the application is manifestly ill-founded and should be declared inadmissible in accordance with 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)