CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 27 mai 1997

.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. 31700/96                       by Kailash Shanke TRIVEDI                       against the United Kingdom        The European Commission of Human Rights sitting in private on 27 May 1997, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs.   M. HION            MM.    R. NICOLINI                  A. ARABADJIEV              Mr.    H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 20 July 1995 by Mr. Kailash Shanke Trivedi against the United Kingdom and registered on 3 June 1996 under file No. 31700/96;        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 of Indian origin, born in 1950 and residing in Grimsby.   He is a medical practitioner.   Before the Commission, he is represented by Mr. P. Leach, solicitor of Liberty, London.        The facts of the case, as submitted by the applicant, may be summarised as follows.        In 1976 the applicant arrived in the United Kingdom and was registered as a medical practitioner.   By the end of 1992 he had some 1,300 patients on his list.   One of them was Mr. C., an elderly man suffering from a whole range of different types of illness, including diabetes and chronic bronchitis.   He frequently required medication and often called the applicant to his home to administer it.        On 2 November 1992 the applicant submitted a claim form for night visit fees to the Humberside Family Health Services Authority ("HFHSA"). The date on which he said he had visited Mr. C. and made a prescription for him was 28 October 1992.   He did exactly the same the next day, on 3 November 1992 for a purported visit to Mr. C., at night on 30 October 1992.        On 3 December 1992 Mr. C. took five prescriptions to the local chemist.   Each was separately dated.   Mr. C. told the chemist that he had been given all the prescriptions on the same day.   The local chemist became suspicious and contacted HFHSA.   The prescriptions were exposed to forensic examinations which revealed that they had been written in three batches in reverse date order.   On 17 December 1992 Mr. C. again went to the chemist's shop with six further prescriptions, each bearing a different date.   The chemist reported the matter to HFHSA.        On 11, 17 and 29 December 1992 the applicant made further claims for night visits to Mr. C. on 26, 28 and 30 November, 4, 6, 9, 11, 13, 17 and 26 December 1992.        On 28 January 1993 a statement was taken from Mr. C. by an investigating officer, in the following terms:        "... I have been a patient of [the applicant] ... for two      years.   He used to visit me regularly at my home but it was      at my request.   He always told me to ring him after      10.00pm.   Sometimes he would call at midnight and once he      came at 1.30am. ... I rang the doctor because I was always      running out of tablets.   He only gave me enough to last one      week.        One day early in December 1992, [he] came to see me during      the night.   I had rung him because I was running out of      tablets. When he came that night he gave me six      prescriptions all with different dates on.   I took these      prescriptions to [the chemist] the next day.   He gave me      the medicines and I told him the doctor had given the six      prescriptions at the same time.        I can remember the [applicant] doing this once before but      I can't remember when.   I cannot remember ringing the      doctor or him calling on Christmas Eve.   There was no      reason I know of to ring him on Christmas Eve.   On Boxing      Day I went out shopping about 12.30pm and got back about      3.00pm.   When I got back I found a prescription written by      [the applicant] had been pushed through the letter box.   I      did not see the doctor on Boxing Day.   I did not ring him      up that day either."        On 31 March 1993 the applicant was arrested and interviewed about his visits to Mr. C.'s home, in the presence of his solicitor.   He declined to answer any questions.        On 20 July 1993 a further statement was taken from Mr. C. by the investigating officer.   It reads as follows:        "[The applicant] has a system where I had to ring him up      after 10.00pm if I wanted to see him. ... He gave me 10      pence to pay for the call but that was reduced to 5 pence      towards the end. I had to call him regularly because I was      always running out of medicines.   When I rang him it was      always after 10.00pm.   He always came sometimes quite late      and once at 2.00am.   I was in bed at the time.        Every time [the applicant] visited me he left me one or      more prescriptions for me to take to the chemist.   I did      ask him to prescribe more medicines for me in greater      quantities but he always told me that what he gave me was      all I needed.        On Christmas Day 1992 ... I came home about 8.00pm ... I      telephoned [the applicant] twice ... but all I got was an      answerphone giving another telephone number for another      doctor.   I did not contact that other doctor.   I wanted      some more tablets from [him].   I did contact him on Boxing      Day but I did not see him.   He put a prescription through      my letter box.        I can say that every time I took a number of prescriptions      to [the chemist], it was always after [the applicant] had      given me them in one go.   So if I took 5 prescriptions it      would be the day after [he] had given me the five all at      once."        On 3 August 1993 the applicant was charged with twelve counts of false accounting under the Theft Acts of 1968 in respect of night visits of Mr. C. in October, November and December 1992.        On 7 November 1994, a report by a Dr. L., drafted on 5 July 1994, was served on the applicant.   It contained the following information:        "Mr. C. is suffering from cerebral atrophy or thinning of      the brain. His symptoms are mental confusion and      unsteadiness leading to frequent falls, together with      behaviour best described as disinhibited.   His condition      has developed over the last several months and is expected      to become worse.   Because of the deterioration in his      intellect he will never be able to give evidence in court."        The trial started on 15 November 1994.   The Crown's case was that the applicant had made claims for payments in respect of night visits to which he was not entitled and that the night visits in question had not in fact taken place.   The prosecution said that on two occasions in December 1992, the applicant went to see Mr. C. in the night and that on one of those occasions he handed to Mr. C. five prescriptions at once and on the other occasion six.   The prescription forms made by the applicant to Mr. C. were exposed to the forensic examination and shown to have been written in three groups in reverse order of date.        An important feature of the Crown's case consisted of Mr. C.'s two statements.   At the trial, the prosecution made it clear that Mr. C. was unable to attend court to give oral evidence and sought leave of the court to read the statements to the jury.   The applicant's counsel sought to exclude them on the ground that they were dangerous in the inferences which a jury despite any direction might draw from them, the conclusions they might face if they, in fact, considered them and read into them a certain scenario.        The judge admitted Mr. C.'s statements considering, inter alia:        "The basis for their admission is to be found in the      Criminal Justice Act 1988.   Section 23 of the Act provides      the basis for the admission and Section 26 governs the way      that the court ought to approach the question of admitting      such statements.   It is conceded that the grounds required      under Section 23 are satisfied, namely that Mr. [C.] is by      reason of his bodily and mental condition unfit to attend.      It is, however, Section 26 to which my attention has been      drawn.   By that section the statement shall not be given in      evidence without leave and this court should not give leave      unless it is of the opinion that the statement ought to be      admitted in the interests of justice.   In considering      whether it is in those interests, it is the duty of this      court to have regard, in particular, to whether it is      likely to be possible to controvert the statement in the      absence of the author, that its admission will result in      unfairness to the accused.   Finally, to any other      circumstances that appear to the court to be relevant.        ...   In particular, I am satisfied that in considering the      contents of the statement I must have particular regard to      the quality of the evidence which it contains.   I must have      regard to whether or not, in the absence of any other      evidence, the case would have to be withdrawn from the jury      and I have to look at the circumstance in which it all came      to be made: I have to have regard to the fact that if I      admit it the defendant will not be able to cross-examine      and will not have opportunity to test the recollection of      the witness on particular points.   In this case that      includes testing, if it were so to be thought appropriate,      when the witness has not himself ever mentioned any visit,      that there were, in fact, visits. [The applicant's counsel]      says that deprivation is of particular importance here.        All those matters determine the approach that I have taken      in this case.   The prosecution have put before me evidence      from the general practitioner Dr. [L.] who, since January      1993, has had Mr. [C.] as his patient. I have also received      evidence from the consultant physician at the local      hospital to whom Mr. [C.] was referred in 1992 and 1993.        The extensive notes which are available have been referred      to and all care taken to ensure that the full picture is      brought out before me.   The prosecution have further      adduced evidence from the [investigating officer] ... who      took the statement from Mr. [C.].   That is material, of      course, when I consider the quality of the evidence, since      it is alleged or asserted by the defence that at the      material time the witness was, or may have been, suffering      from such a degree of mental impairment that the contents      of these statements, even as they are at present are      fundamentally unreliable.   To that end, the defence called      two witnesses.   The first was a neighbour who related one      incident in 1992 or 1993.   I am not entirely clear when,      but I take it in the defendant's favour that it was in 1992      which showed a lapse of memory on behalf of Mr. [C.].      Further, and more significantly Professor [P.], a man of      undoubted eminence in his field which is to do with the      psychology of age and the many problems associated with      ageing.   [He] has not seen Mr. [C.] but gave an opinion      based on the notes and the other evidence which he was in      court to hear.        ... The problems he diagnosed as a GP were not ones which      included loss of memory and loss of other faculties,      intellectual faculties of brain and mind which, had he seen      any signs, he would certainly have cause to be      investigated.        Doctor [L.] saw him in all, ... sixteen times over a period      of four months and said: 'I saw no reason to test his      memory.   He seemed to have purely mechanical problems.   His      memory seemed to be entirely reliable.   He seemed to be a      sensible chap.' ...        Doctor [J.] saw him in April 1993 ... He found him able to      give a clear story as regards his problems though it was      aided by his niece who filled in one or two extra details.      ...      [The investigating officer] spoke to Mr. [C.] on these two      occasions.   He asked general questions and wrote down what      Mr. [C.] said to him.   He found no difficulty in      understanding him.   He described him as quietly spoken,      able to recall details.   A man who did not falter in what      he said.   The same was the position in July. ...        Professor [P.] ... says that this man has a well-      established neurological disorder, severe movement disorder      and now is showing signs of dementia.   He believes that      these stem from damage which first began to appear.      Physical changes may be a better way of putting it than      damage, in February 1992 which has progressed with the      early signs of movement disorder ...   He said that the one      memory lapse is of some considerable significance and that      overall in his experience which, as I say is distinguished      and extensive, there is likely to have been some effect on      intellect and memory.        Upon that basis [counsel for the applicant] asks me to say      that I cannot be satisfied that at the time this witness      made the statement and I refer particularly to the case of      Dempsey [98, Criminal Appeal Reports] where a similar      situation was encountered, there is material to say that      the quality of the evidence contained in it is compromised      and that I should therefore exercise the discretion against      the prosecution.        It seems to me that there is a quite coherent and      consistent picture of this man observed by those who were,      in fact, on the ground seeing him face-to-face over a      substantial period of time.   I do not myself think that      helpful, as it very often is that in cases of this kind,      there is any substitute for such face-to-face observation.      The general practitioner struck me as a cautious and      careful practitioner.   Doctor [J.] ... was also careful and      thorough and I am satisfied their observations are, indeed,      to be relied upon.   I am satisfied that at the material      time, though Mr. [C.] was handicapped and though he was as      Doctor [J.] put it, 'at the lower end of the scale when one      looks at the degree to which people are affected by the      aging process', he nevertheless, was in a condition to make      a statement that he knew he was making and that was to the      best of his recollection at the time as accurate as he      could make it, in response to the matters he was asked to      consider.   There is nothing, it seems to me, about the      quality of this evidence which gives rise to such concern      that would lead me to exercise the discretion I have to      exclude the reading of that statement. ...        As to the arguments I think I need to look at the nature of      them in order to deal with them. [Counsel for the      applicant] has said that the defendant is deprived of the      opportunity of cross-examining.   Of course, that is true in      this case, as in every case, but, in particular, of putting      to Mr. [C.] the case which is the defendant's, to explain      not Mr. [C.]'s evidence but the evidence of the examination      of the documents.        I pause to interject that that shows that a series of      prescriptions were written beginning with the last date in      time and going backwards.   The plain inference to be drawn      is they were concocted in that way to cover nonoccurring      visits.   Mr. [C.] does not say that on a particular day the      doctor did or did not visit save for one instance and on      that he said two separate things which is to the      defendant's advantage.        The defendant has every opportunity to give uncontroverted      evidence, therefore, about the reason for writing out      prescriptions in that way on one day.   About writing them      in reverse order.   It seems to me that the defence, though      certainly not given the opportunity of raising matters with      Mr. [C.], may well in any event be in a better, are in a      better position than they would be if he were here to give      evidence.   Had that matter been put to him, were he able to      deal with it, his answers might, in fact, be quite damaging      to the defendant.   One does not know, but one can foresee      it happening, as one has seen it in other cases.        There is no particular direct evidence, as I say, on the      question of dates and the number of prescriptions differed      at any one time.   All that seems to me to be matters which      are not, on analysis, harmful to the defendant.   There is      therefore nothing that seems to me appropriate to take into      account as raising risks of unfairness for the defendant.      So for those reasons, I do not consider that there is      substance in the objections [counsel for the applicant]      makes along those lines.        In all the circumstances, therefore, it seems to me, that      I can properly exercise the discretion I have under Section      26, having had in mind the risks and, of course, the risk      of any injustice to allow the statement to be read, or      statements to be read."        Mr. C.'s statements were then read to the jury.        The applicant gave evidence at the trial.   He explained that Mr. C. lived by himself and he was not a well man.   Apart from diabetes the applicant said he had high blood pressure, heart problems, a blood disorder, anaemia and asthma, and he often asked the applicant to come at night.   Whenever he did so the applicant said he went.   He recorded these visits, according to his account, on separate pieces of paper. He also took claim forms with him, and he gave evidence about specific occasions when he wrote prescriptions.   He conceded in evidence that the entry for 30 October 1992 appeared before the one for 28 October 1992, but he said he might have made a mistake when he was filling in his records.        The applicant also gave evidence of particular visits to Mr. C. during November 1992.   He said that it was on a visit on 2 December 1992 that Mr. C. told him that he had lost all the prescriptions that he had been given at the end of November 1992.   The applicant said that he had made out duplicates.   That point was no doubt of consequence since the prescriptions had apparently been given on various dates in the previous ten days or so, and yet the prescriptions were being replaced at the end of that period, when that period had expired for which the tablets were presumably being prescribed.   He said that he also saw Mr. C. on various dates in the early part of December 1992, and on 16 December 1992.   Mr. C. told him that he had once again lost all the earlier prescriptions, and so once again he made out duplicates of the six prescription forms from information in his records.        According to the applicant, he did see Mr. C. on Boxing Day.   On that occasion he said he prescribed a pain killer for him. He carried claim forms about with him and filled them in as required.   He said that was why some of the forms had earlier dates towards the end than those at the beginning of the forms.   He transferred the details onto his own patients' records and left his receptionist to fill in other details on the claim forms.   Once that had been done he threw away the pieces of paper on which he had originally recorded his visits.        On the applicant's behalf, two of his patients were called.   Both of them described the applicant as being a very good, caring, considerate and reliable doctor.        At the end of the prosecution case, the charges in relation to 30 October and 16 December 1992 were dismissed by the judge on the basis that even on the prosecution case it was clear that visits had been made on those days.   An application by counsel for the applicant that the final charge relating to 26 December 1992 also be dismissed was rejected.   The basis of that application was that the only evidence against the applicant in relation to this date came from Mr. C. who had not given oral evidence and whose statements were inconsistent one with the other on the question of whether he telephoned the applicant on that day or not.   The judge rejected the application on the grounds that there was evidence from Mr. C. in respect of the final charge and it was up to the jury what they made of the inconsistency in his statements.        On 18 November 1994 the Grimsby Crown Court convicted the applicant on ten counts of false accounting.   On 19 December 1994 the Court ordered him to perform 160 hours of community service on each count concurrent and in addition to pay the sum of £5,000 towards costs of the prosecution.        In July 1995 the applicant appealed to the Court of Appeal on the basis, inter alia, that Mr. C's evidence should not have been read to the jury.        On 13 July 1995 the Court of Appeal dismissed the applicant's appeal on the grounds that the trial judge had approached the question of Mr. C.'s evidence properly.   The Court found inter alia:        "The Crown applied for the statements to be read and there      was a considerable amount of evidence given on the voir      dire about Mr. [C.]'s state of mind at the time when the      statements were made as well, of course, as evidence which      related to his being unfit to attend court.   The relevant      cases were referred to the judge and he took account of      them in giving his ruling.   The judge concluded that there      was nothing about the quality of the evidence which gave      such concern as would lead the court to exercise its      discretion to exclude the statements and accordingly he      admitted them.        There was a submission of no case to answer made in      relation to three counts, which succeeded in relation to      two of them, but not in relation to count 12 which ...      related to the visit which the [applicant] said he had made      to Mr. [C.] on Boxing Day.   The judge ruled that that      matter should be left to the jury.        It is to be noted that his reference to Boxing Day in the      second statement did differ in one respect from his      reference to Boxing Day in the first statement, because      whereas in the first he said he did not contact the doctor      at all on that day, in the second he said that he did.   But      in both ... he said that he did not see the doctor on that      day, in which case, if it were true, the doctor would not      have qualified in respect of that date for any fee for      visiting Mr. [C.].        What is said on behalf of the [applicant] is that the      judge's account of why Mr. [C.]'s evidence should be      admitted did not show a proper understanding of its      significance or potential significance.        The criticism made is that although it might be true to say      that the statements were not central to proof of dishonesty      they did make some reference to it which, in the context of      dishonesty, might have been prejudicial to the doctor.   It      was also contended that the comment on the vital issue      'whether or not a visit was made, they are silent', is      subject to a qualification in relation to Boxing Day      because, as we have just pointed out, both statements said      that there was no visit made on Boxing Day, which was the      direct subject of count 12 in the indictment.      The prosecution did indicate in opening what use they      proposed to make of Mr. [C.]'s statements, and [counsel for      the applicant] submits that even if one only considers them      in relation to count 12 of the indictment, to the extent      that they facilitated proof of that count, they might have      told heavily against the [applicant] because if the jury      found him guilty upon that count, why, they might the more      readily find him guilty on the remaining counts.        The summing-up is criticised for the way in which the judge      handled Mr. [C.]'s statements.   He said ... that the jury      had had no opportunity to see Mr. [C.] in the witness box,      adding: 'When you do see a witness you often get a better      idea of their reliability, their accuracy and their      honesty. Secondly you have not seen him tested under cross-      examination.   Often you get an even clearer idea. ... So      when you consider his statement you cannot pay as much      attention to it as you would if it had been given from the      witness box.   The weight you attach to it is, therefore,      less than would be the case in respect of evidence given by      a witness who was here.'        [Counsel for the applicant] criticises those references      because they were made without further reference to the      burden of proof, as to which the judge had already directed      the jury.   He submits that references to weight may not be      expected to mean much to a jury unless it is related to the      question of burden of proof.   It seems to us that the      significance the jury was invited to place upon the fact      that they did not have the opportunity of seeing Mr. [C.]      for themselves was self-evident.   Not only were they unable      to assess him as a man, but also they were unable to see      him tested in cross-examination.   The judge then read the      statements.   It was plain that the evidence in relation to      Boxing Day depended on Mr. [C.] and that his evidence as to      that was not corroborated.        An important part of [counsel's for the applicant]      submissions about Mr. [C.] is the medical evidence because      the judge, as we have indicated, ruled in favour of the      Crown that notwithstanding that evidence the statements      should be admitted.   The reason why his statements were      read to the jury was the same as the reason given by the      judge, to which we said we would refer, for Mr. [C.] not      being called as a witness.   It ... reads as follows: 'In      January 1993 Mr. [C.] was suspected of having Parkinson's      disease.   Following a variety of falls he was admitted to      Fairfield Lodge, an old people's home on March 25th, 1993      where he has remained until this day.   It is now believed      that he suffers from a degenerative condition called pseudo      bipolar palsy rendering him unfit to travel.'        That is criticised, as we understand it, because it does      not go far enough or tell the jury enough about Mr. [C.]'s      medical condition.   The purpose of it was, of course, to      explain why he was not in court.   It was not intended to go      any further than that.   No application was made to the      judge, on behalf of the [applicant], to entertain evidence      about Mr. [C.]'s medical condition at the time when he made      the statements which were read to the jury, or at the time      of the incidents referred to in those statements or at all.        The judge's conclusion about Mr. [C.]'s evidence not being      open to criticism, because in the judge's phrase it was 'as      accurate as he could make it', is made on the footing that      that took no sufficient account of the real objection to      his evidence, which was that his memory was defective at      the time, at any rate by the time that the statements were      taken from him, and that therefore they ought not to be      allowed to be read in circumstance where his evidence could      not be tested in cross-examination.   Before reaching that      or any such conclusion the judge had, in the course of a      lengthy ruling, carefully reviewed the medical evidence.      ...      After his review of the judge's ruling [counsel for the      applicant], by way of reply, took us to the evidence      actually given by Dr. [J.], Dr. [L.] and Professor [P.].      They made, whether in cross-examination or otherwise, from      time to time various acknowledgements that in some respects      Mr. [C.]'s memory might have been to some extent impaired.      But that may be more or less true of many, if not most,      witnesses, whether for physical or other reasons.   The      question was whether, at the time when the statements were      taken from Mr. [C.], there was sufficient criticism      available to be made of them as would make it unfair for      them to be adduced in the absence of the man who had      originally given them.   The judge, in the exercise of his      discretion, was entitled to conclude that the criticisms to      be made of Mr. [C.] and his memory were not such as made it      appropriate to exclude his evidence.   The judge came to      that conclusion after an exhaustive enquiry into Mr. [C.]'s      condition, including his memory at the material time, and      it was a discretion with which, in the circumstances, this      court will not interfere.   The discretion whether to admit      that evidence was, in our judgment, properly taken by the      judge after consideration not merely of the witnesses but,      as we have remarked, of the authorities relevant to the      introduction of statements in these circumstances.   It is      said that Mr. [C.]'s evidence was prejudicial, but none of      it went directly to the allegation that the [applicant] had      claimed for visits that he never made except in so far as      it referred to the absence of a visit on Boxing Day, which      we have already mentioned.   As [prosecution counsel] has      said in his written submissions, those statements did not      specify how frequently the [applicant] visited Mr. [C.]'s      house.   They shed no light on how batches of prescriptions      were written in reverse order of dates, as each was torn      from the top of a pad of forms.   It was necessary for the      Crown to adduce the [C.] evidence, not so much in proof of      dishonesty but in the light of the [applicant]'s largely      'no comment' police interviews, to describe the background      in which prescriptions were written and then claims were      made, whether legitimately or not.        The judge was right to reflect that if Mr. [C.] had been      called he might, when cross-examined, have remembered      matters adverse to the [applicant], although there was      evidence from Professor [P.] that Mr. [C.] was suffering      from severe episodic memory loss, which might affect the      reliability of his statements.   There was the evidence      also, to which we have referred, from his general      practitioner and another physician, as well as from the      officer who took the statements, that Mr. [C.] was able to      communicate effectively, answer questions and give a clear      account of himself.   With the decision to admit Mr. [C.]'s      evidence, accordingly, we decline to interfere.        In a one-line submission [counsel for the applicant], in      conclusion, contended that there was no sufficient evidence      to leave to the jury on count 12.   It seems to us quite      plain that in both his statements Mr. [C.] was saying that      he received no visit on Boxing Day from the doctor.   The      result of that was, as the judge declared when he ruled      upon the submission of no case, that it was a matter for      the jury whether, in the light of such explanations as the      [applicant] saw fit to give, they were satisfied that he      made no call upon that particular day in respect of which,      however, he had seen fit to make a claim."        The applicant was advised by a leading and junior counsel that there was no basis upon which the case could be appealed to the House of Lords.     COMPLAINTS   1.    The applicant complains that his rights under Article 6 paras. 1 and 3 (d) of the Convention have been violated in that the evidence of Mr. C. was not produced in his presence at a public hearing and, moreover, he was given no adequate and proper opportunity to question Mr. C. or challenge his evidence. Neither himself nor his representative was present when Mr. C.'s statements were made.        The applicant claims that at his committal for trial, no indication whatsoever had been given to him that Mr. C. would not be attending the trial to give oral evidence.   Had any such indication been given, the applicant would have exercised his right to call on Mr. C. to give oral evidence at the committal proceedings.        The applicant also criticises the trial judge's ruling on the question of whether, at the time Mr. C.'s statements were taken, his memory was defective and whether for that reason alone, the statements ought not to be put before the jury.   2.    The applicant also submits that he was given no opportunity to consider Dr. L.'s report when it was prepared (5 July 1994) because it was not disclosed to him until 7 November 1994, four months after it had been written and only eight days before the trial began.   He argues that the unjustifiable delay by the prosecution in disclosing Dr. L.'s report to him deprived him of considering that possibility.     THE LAW   1.    The applicant complains that he did not have a fair trial as he was convicted mainly on the basis of statements made by a witness who did not attend his trial.   The statements of the witness were read out at the hearing and therefore the applicant was not given the opportunity to examine or have examined the witness against him.   He invokes Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention which reads in so far as relevant:        "1.    In the determination of ... any criminal charge against      him, everyone is entitled to a fair ... hearing ... by an      independent and impartial tribunal ...      ...        3.     Everyone charged with a criminal offence has the following      minimum rights:      ...      (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 paragraph 3 of Article 6 (Art. 6-3) of the Convention are specific aspects of the general concept of a fair trial set forth in paragraph 1, the Commission will consider the complaint under the two provisions taken together (cf. Eur Court HR, Asch v. Austria judgment of 26 April 1991, Series A no. 203, p. 10, para. 25).        The Commission recalls that the admissibility of evidence is primarily a matter for regulation by national law and that, as a rule, it is for the national courts to assess the evidence before them, the task of the Convention organs being to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (ibidem, p. 10, para. 26).        The Commission further recalls that, according to its own case- law and that of the European Court of Human Rights, all evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument.   This does not mean, however, that the statement of a witness must always be made in court and in public if it is to be admitted in evidence; in particular, this may prove impossible in certain cases.   The use of statements obtained at a pre- trial stage is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6 (Art. 6) of the Convention, 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 (ibidem, p. 10, para. 27).        In the present case the Commission notes that before deciding to admit the statements of Mr. C. into evidence the trial judge conducted a detailed inquiry into Mr. C's condition, including his memory at the material time.   After hearing oral evidence as well as submissions by both sides in the absence of the jury, the judge co