CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 novembre 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. 22210/93                       by F.A.W.D.                       against the Netherlands        The European Commission of Human Rights sitting in private on 30 November 1994, the following members being present:   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 10 August 1992 by F.A.W.D. against the Netherlands and registered on 12 July 1993 under file No. 22210/93;        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 national, born in 1946, and resides at Leiden, the Netherlands. Before the Commission he is represented by Mr. G. Spong, a lawyer practising in The Hague.        The facts of the case, as submitted by the applicant, may be summarised as follows.        By summons of 10 July 1989 the applicant was ordered to appear before the 's-Hertogenbosch Regional Court (Arrondissementsrechtbank). He was charged with several offences against the Opium Act (Opiumwet) and the Fire Arms Act (Vuurwapenwet).        In its judgment of 6 October 1989 the Regional Court found that the evidence against the applicant had been unlawfully obtained, in particular in that there had been no legal basis for the tapping of the applicant's telephone, since the prosecution had requested the opening of a preliminary judicial investigation (gerechtelijk vooronderzoek) limited to offences concerning amphetamine, a substance included in list I of the Opium Act, whereas the offences with which the applicant was charged concerned M.D.M.A. [methylenedioxymethamphetamine - commonly known as "XTC" or "Ecstasy"], which under the Opium Act is a different substance. Noting that, according to Sections 181 and 182 of the Code of Criminal Procedure, a preliminary judicial investigation must remain restricted to what is stated in the prosecution's request for the opening of this investigation, the Regional Court consequently acquitted the applicant and ordered his immediate release. The prosecution authorities filed an appeal against this judgment with the 's-Hertogenbosch Court of Appeal (Gerechtshof).        On 21 March 1990 the Court of Appeal, composed of Mr. S. as President, and Mr. M. and Mr. K. as judges, limited its examination to the questions whether or not the prosecution was admissible in its prosecution of the applicant and whether or not the means of evidence in his case had been lawfully obtained. The applicant, invoking his right to remain silent, did not make any statement to the Court. The Court further heard an narcotics expert and a police officer. The parties to the proceedings were provided with an opportunity to question these persons and to state their views on the questions before the Court.   The Court of Appeal adjourned its proceedings until 4 April 1990.        In its interlocutory judgment of 4 April 1990 the Court of Appeal declared the prosecution admissible and found that the evidence in the applicant's case had been lawfully obtained. Given that the investigation had not been completed, it ordered the re-opening of the investigation and adjourned its further proceedings until 25 October 1990.        On 25 October 1990 the Court of Appeal fully recommenced its examination in view of its different composition, i.e. Mr. M. as President, and Mr. K. and Mr. H. as judges. The President of the Court of Appeal informed the parties that the objections, which had been examined in the course of the hearing on 21 March 1990 and which had been rejected in the Court of Appeal's interlocutory judgment of 4 April 1990, were considered as having been raised again and that these objections would be determined in the Court of Appeal's judgment. The applicant and his lawyer agreed with this procedure.        The Court of Appeal considered the written means of evidence, such as, inter alia, official reports by the police and the forensic laboratory, examined the applicant, considered the parties' submissions, heard their final pleas and declared its investigation closed.        In its judgment of 8 November 1990 the Court of Appeal, on the same grounds as the grounds of the interlocutory judgment of 4 April 1990, declared the prosecution admissible and found that the evidence in the applicant's case had been lawfully obtained. It quashed the judgment of 6 October 1989, acquitted the applicant on a number of charges, convicted him of several offences against the Opium Act and of one offence against the Fire Arms Act, and sentenced him to twenty- four months' imprisonment of which six months suspended pending a probation period of two years and with deduction of the time spent in pre-trial detention.        The applicant's appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 16 June 1992. The applicant had complained under Article 6 para. 1 of the Convention that the Court of Appeal, in its changed composition, could not be regarded as impartial in that, in its judgment of 8 November 1990, it had rejected the objections raised in respect of the admissibility of the prosecution and the lawfulness of the evidence obtained on the same grounds as stated in the Court of Appeal's interlocutory judgment of   4 April 1990. The Supreme Court held that a judge is presumed to be impartial unless there are serious indications that he is prejudiced in respect of an accused, that is to say that the accused's fear of the judge's partiality is objectively justified. However it found that the fact that the Court of Appeal, after an initial interlocutory judgment, recommenced its examination resulting in a new decision on the objections previously determined in the interlocutory judgment could not lead to the finding that the Court of Appeal was partial.     COMPLAINT        The applicant complains that the criminal charges against him have not been determined by an impartial tribunal as required by Article 6 para. 1 of the Convention. He submits that the Court of Appeal judges, MM. M. and K., were prejudiced when they determined the objections raised in respect of the admissibility of the prosecution and the lawfulness of the evidence obtained for a second time. He argues that this is evident given the fact that the Court of Appeal rejected these objections for a second time on the same grounds as the grounds stated in the initial interlocutory judgment of 4 April 1990. He further submits that these two judges should in fact have withdrawn from the case.   THE LAW        The applicant complains that the criminal charges against him have not been determined by an impartial tribunal as required by Article 6 para. 1 (Art. 6-1) of the Convention, since two of the three Court of Appeal judges, who had participated in a previous decision on the admissibility of the prosecution and the lawfulness of the evidence obtained, later participated in the Court of Appeal's final decision on these issues.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads:              "In the determination of (...) any criminal charge            against him, everyone is entitled to a fair (...)            hearing (...) by an (...) impartial tribunal (...)."        The Commission notes that the Court of Appeal, in its interlocutory judgment of 4 April 1990, declared the prosecution admissible and found that the evidence against the applicant had been lawfully obtained.        The Commission further notes that, on 25 October 1990 the Court of Appeal fully recommenced its examination since one of its judges had been replaced and that the objections - which had been raised in the course of the hearing on 21 March 1990 and which had been rejected in the Court of Appeal's interlocutory judgment of 4 April 1990 - were again examined and rejected on the same grounds as those stated in the interlocutory judgment.        The Commission finally notes that the applicant did not challenge the two judges, who were allegedly partial, although he was aware of the composition of the Court of Appeal, at the latest when he appeared for the hearing on 25 October 1990.        However, the Commission does not find it necessary to decide whether or not the applicant has failed to exhaust domestic remedies as required by Article 26 (Art. 26) of the Convention by failing to challenge the two judges at issue since his complaint is in any event manifestly ill-founded for the following reasons.        The Commission recalls that the existence of impartiality for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (cf. Eur. Court H.R., Hauschildt judgment of 24 May 1989, Series A no. 154, p. 21, para. 46).        As to the subjective test, the applicant has not alleged that the judges involved in the proceedings at issue acted with personal bias. In any event the personal impartiality of a judge must be presumed until there is proof to the contrary and in the present case there is no such proof.        As regards the objective test, the Commission observes that there is no general rule resulting from the obligation under the Convention for courts to be impartial to the effect that, if a trial court's composition changes, all judges involved in the previous proceedings before that court should be replaced by others.        The Commission further observes that, as a result of the change in the Court of Appeal's composition, the interlocutory judgment became null and void. The Court of Appeal, in its new composition, recommenced its examination including the preliminary issues as regards the admissibility of the prosecution and the lawfulness of the evidence obtained. In this new examination the parties were provided with a second opportunity to state their views on the preliminary issues before the Court determined these issues in its judgment.        The Commission considers that the fact that two of the three judges, who had remained in the same function, dealt with these issues twice does not justify the conclusion that the applicant's fears that the two judges at issue were lacking impartiality is objectively justified.        As regards the Court of Appeal's findings in respect of these preliminary issues, which were identical with the Court of Appeal's findings in its previous composition, the Commission recalls that it is primarily for the domestic courts to apply and interpret domestic law and that the admissibility and probative value of evidence is primarily a matter for regulation under domestic law (cf. No. 12505/86, Dec. 11.10.88, D.R. 58 p. 106). Given that these issues were examined in the course of adversarial proceedings the Commission finds that also in this respect the applicant's trial was in conformity with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that the application must be rejected as being 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)