CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 7 novembre 2000

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Palm , President ,   Mrs   W. Thomassen ,   Mr   L. Ferrari Bravo ,   Mr   C. Bîrsan ,   Mr   J. Casadevall ,   Mr   B. Zupančič ,   Mr   T. Panţîru , judges , and     Mr   M. O'Boyle , Section Registrar ,   Having regard to the above application introduced on 2 March 1999 and registered on 7 April 1999,   Having deliberated, decides as follows: THE FACTS     The applicant is a Dutch national, born in 1963, and currently serving a prison sentence in the Netherlands. He is represented before the Court by Mr   R.J. Baumgardt, a lawyer practising in Spijkenisse.     The facts of the case, as submitted by the applicant, may be summarised as follows.     On 11 December 1996, the applicant and R.K. were present in the home of Werner M. On the same day, Werner M. was killed by one stab wound in his chest. In the night of 11-12 December 1996, the applicant went the police and stated that he had killed Werner M. It appeared that, when making this statement, the applicant had an alcohol level of 2.07 mg/litre in his blood.     On 12 December 1996, the police arrested the co-suspect R.K., whose statement of 12 December 1996 to the police confirmed the applicant's account. The police further took samples of and secured material found under the two suspects' finger nails. The police further seized and secured the suspects' coats and outer layer of their clothes. In the course of his pre-trial detention, the applicant withdrew his earlier statement that he had killed Mr M. By summons of 4 March 1997, the applicant was summoned to appear before the Rotterdam Regional Court ( Arrondissementsrechtbank ) on charges of murder.     By letter of 23 April 1997, the applicant's lawyer, referring to previous telephone messages, requested the investigating judge ( rechter-commissaris ) dealing with the case to provide him with further information in relation to the samples taken by the technical criminal investigation department ( technische recherche ) as well as the secured clothes of the applicant and R.K.     In the course of a hearing held on 18 March 1997 before the Regional Court, the defence stated that there were three persons in the victim's home, namely R.K., Willem M. and the applicant and that their statements were not consistent. The defence requested that the case be referred back to the investigating judge in order to hear R.K., Willem M. and three police officers involved in the investigation. The Regional Court further took evidence from the applicant.     After having deliberated, the Regional Court decided to refer the case back to the investigating judge in order to take evidence from the five witnesses proposed by the defence. On 7, 10 and 28 April 1997, statements were taken from the witnesses and the applicant by the investigating judge.     On 26 May 1997, the applicant's lawyer was told by the public prosecutor that it was unclear what had happened with the material taken from the suspects' finger nails and of their clothes and that, therefore, no forensic reports on these materials would be submitted to the court.     On 27 May 1997, a further hearing took place before the Regional Court. As the court's composition had changed, it fully recommenced its examination. It took evidence from the applicant, considered the other evidence before it and heard the parties' final pleadings.     By judgment of 10 June 1997, the Regional Court convicted the applicant of murder and sentenced him to seven years' imprisonment. The applicant filed an appeal with the Hague Court of Appeal ( Gerechtshof ).     In the course of a hearing held on 5 December 1997, the Court of Appeal heard the applicant as well as the witnesses Willem J.M. and R.K. The latter witness stated, inter alia , that he had been convicted of being an accessory to the murder of M and that he had not filed an appeal against this conviction. The Court of Appeal further heard the parties' final pleadings.     In its judgment of 19 December 1997, the Court of Appeal convicted the applicant of murder and sentenced him to seven years' imprisonment. On the basis of the findings of a psychiatric report on the applicant, the Court of Appeal accepted that the applicant had to a certain extent a diminished responsibility and took this into account in the determination of its sentence.     As to the argument submitted by the defence that the prosecution should be declared inadmissible as the clothes and the samples taken from material under the fingernails of the suspects had gone lost thereby rendering a - for the applicant possibly exculpating - forensic examination thereof impossible, the Court of Appeal held that:   <Translation> “ The formal police records mention that, pending a possible further investigation, the secured items at issue have been entrusted to the technical criminal investigation [department] of the Rotterdam-Rijnmond Regional Police. It appears from appendices to counsel's written pleadings that the suspect's former defence counsel has requested the investigating judge to have these materials examined. A reply to that request is not included in the documents. The written pleadings of the defence counsel in the first instance proceedings only mention that this counsel has been told by the public prosecutor “that no clarity can be obtained what [has] happened with this”. Assuming that the materials referred to have in fact gone missing, the Court considers this indeed regrettable, but, noting the other investigation results contained in the case-file, not an omission of such importance that this should result in the sanction of inadmissibility of the prosecution. The objection is therefore rejected. ”     The Court of Appeal based the applicant's conviction on his statement of 12 December 1996 to the police and his statement of 28 April 1997 to the investigating judge, the statement of 12 December 1996 by R.K. to the police, the formal police records of the finding of the victim's body, and the report on the autopsy of the victim's body.     The applicant's subsequent appeal in cassation was rejected by the Supreme Court ( Hoge Raad ) on 20 October 1998. As to the applicant's complaint of the rejection by the Court of Appeal of his argument that the prosecution should be declared inadmissible, the Supreme Court held at the outset that unlawful activities of criminal investigation officials could under circumstances result in such a serious violation of the principle of a fair trial that this should lead - also in cases where there is sufficient other lawfully obtained evidence - to the inadmissibility of the prosecution. However, such a far reaching sanction could only follow where it would concern serious violations of those principles by, deliberately or with gross negligence, disrespecting the suspect's interest in his right to a fair hearing of his case. Due to the impossibility of giving a general rule, this question needed to be examined on a case by case basis.       Turning subsequently to the instant case, the Supreme Court held that:   <Translation> “ ... the Court of Appeal has at the outset - correctly - expressed that the circumstance that the secured traces have gone lost violates the principles of fair proceedings. The Court of Appeal further held that the present case does not concern a case of a serious violation of the principles of fair proceedings as a result of which, deliberately or with gross negligence, the suspect' interest in his right to a fair trial of his case has been disrespected This finding does not disclose an incorrect conception of the law and is also not incomprehensible taking into consideration: a) that it has not been argued and that the case-file contains nothing from which it could be concluded that the fact the investigation material has gone lost is the result of a deliberate action and b) that the Court of Appeal has apparently assessed this violation [of the principles of fair proceedings] in the light of the harm that this, also taking into account of what the defence has submitted on this point, could reasonably have caused the interests of the defence, in which [assessment] the Court of Appeal with [the phrase] “the investigation results contained in the case-file” apparently referred to the facts and circumstances on which it based the conviction (“ voor het bewijs redengevend geachte feiten en omstandigheden ”) as set out in the evidence described under 4.2. and the possibly exculpating material contained in the case-file. The complaint therefore fails. ”     COMPLAINT     The applicant complains under Article 6 of the Convention that, in the criminal proceedings against him, he did not receive a fair trial in that possibly exculpating evidence held by the police has gone lost. He submits that, in the criminal proceedings against him, he has always maintained that not he, but R.K., had inflicted the lethal stab wound whereas R.K. denied this, maintaining that the applicant had inflicted this injury. As R.K. further denied that he had touched the victim or that he had inflicted the wound, a forensic examination disclosing traces of blood on R.K.'s clothes or in the material taken from his fingernails could have indicated the incorrectness and unreliability of R.K.'s statements.     THE LAW     The applicant complains under Article 6 of the Convention that, in the criminal proceedings against him, he did not receive a fair trial in that possibly exculpating evidence held by the police has gone lost.     Article 6 of the Convention, insofar as relevant, reads:   “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”     The Court considers at the outset that it would have been preferable that the evidence at issue would have formed the object of a forensic examination. This was, however, not possible as these materials had gone missing. The Court notes that the Court of Appeal examined the applicant's argument in relation to the impossibility of obtaining a forensic examination for traces of the victim's blood on the clothing and samples taken of materials found under the fingernails of the applicant and R.K. in the light of the other evidence which was available. Noting the reasons stated by the domestic courts for rejecting this argument, and the opinion expressed by these courts as to the consequences to be attached to the fact that the items at issue had gone missing, the Court cannot find that the reasoning of the domestic courts can be regarded as arbitrary or unreasonable or, as such, deprived the applicant of a fair hearing within the meaning of Article 6 of the Convention.     The Court further notes that the Court of Appeal based the applicant's conviction mainly on his confession of 12 December 1996 to the police and the R.K.'s supporting statement of 12 December 1996 to the police. It is true that the applicant withdrew his earlier confession to the police before the trial courts, but, where a trial court is confronted with a contradiction between an earlier statement and subsequent evidence at the trial, it is to this court to assess the credibility of the various statements concerned. The Court of Appeal's assessment of the evidence available in the present case does not appear unreasonable or arbitrary and, as such, cannot be further reviewed by the Court.     As the applicant has been convicted following adversarial proceedings in the course of which he has been provided with ample opportunities to state his case, to challenge the available evidence against him and to submit whatever he found relevant for the outcome, the Court cannot find that the applicant's right to a fair hearing was disrespected.     It follows that the application must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.       For these reasons, the Court, by a majority,   DECLARES THE APPLICATION INADMISSIBLE               Michael O'Boyle   Elisabeth Palm   Registrar   President