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. 21645/93                     by R.B.                     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 1 April 1993 by R.B. against the Netherlands and registered on 8 April 1993 under file No. 21645/93;        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 1961, and resides at Zoetermeer, the Netherlands.   Before the Commission he is represented by B.R. Angad Gaur, a lawyer practising in The Hague.        The facts of the case, as submitted by the applicant, may be summarised as follows.        On 14 February 1990 the applicant and D.R. were arrested by the Municipal Police of Utrecht on the suspicion of dealing in drugs.   On the occasion of his arrest the applicant dropped a plastic bag on the floor, which turned out to contain 19 small balls (bolletjes) of cocaine.   On the same day A.L. was confronted with the applicant and subsequently with D.R. by way of a two-way mirror.   A.L. recognised both men as dealers in both cocaine and heroin, from both of whom he had bought drugs on several occasions. The applicant and D.R. were also confronted with H.H. by way of a two-way mirror.   H.H. recognised them as drug dealers and stated that he had bought both cocaine and heroin from D.R.        On 15 February 1990 the applicant stated before the police that, together with D.R. he had bought cocaine and made small balls of cocaine and, with the assistance of a certain J., had sold these balls to several persons in the Utrecht shopping centre Hoog Catharijne. D.R. made a similar declaration to the police.        At his trial on 22 May 1990, the applicant, assisted by his lawyer, stated that he had supplied cocaine on several occasions between 1 January 1990 and 14 February 1990 and that on 14 February 1990 he had carried 19 balls of cocaine which he had made with D.R. The Regional Court (Arrondissementsrechtbank) of Utrecht, in its judgment of 5 June 1990, convicted the applicant of supplying and possessing of drugs and sentenced him to nine months' imprisonment, of which three months suspended pending a probation period of two years.   The Regional Court based its conviction on the applicant's statements before the police and the Regional Court, the statements of D.R., A.L. and H.H. before the police, the police reports of the applicant's arrest and reports by the forensic laboratory.   The applicant filed an appeal with the Court of Appeal (Gerechtshof).        In the course of the hearing of 19 September 1991 before the Court of Appeal the applicant, assisted by his lawyer, withdrew his statements before the police and the Regional Court and denied having supplied and sold cocaine.   He alleged that the cocaine found on him was intended for his own personal use and requested that A.L. and H.H. be examined before the investigating judge (rechter-commissaris).        On 3 October 1991 the Court of Appeal upheld the judgment of the Regional Court.   It rejected the applicant's request to have A.L. and H.H. examined before the investigating judge, considering that it was sufficiently informed about the applicant and that it was not necessary to examine these witnesses.        The applicant's appeal in cassation was rejected on 13 October 1992 by the Supreme Court (Hoge Raad).   The Supreme Court found that the Court of Appeal had lawfully rejected the request to have A.L. and H.H. examined, whereas the Supreme Court could not examine the merits of this request, since a decision on the necessity of hearing witnesses falls within the competence of the judge dealing with the facts of the case.        As to the applicant's complaint that he should have been given a conditional sentence in view of, inter alia, his personal situation and the fact that it was his first offence, the Supreme Court considered that such a complaint could not be raised in an appeal in cassation.     COMPLAINTS        The applicant complains under Article 6 paras. 1 and 3(d) of the Convention, that he did not receive a fair trial in that the Court of Appeal refused his request to have A.L. and H.H. examined by the investigating judge and that the Court of Appeal and the Supreme Court did not properly respond to his argument that the sentence imposed should be made conditional.     THE LAW   1.    The applicant complains under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention that he did not receive a fair trial in that the Court of Appeal refused his request to have A.L. and H.H. examined by the investigating judge and that the courts did not properly respond to his argument relating to the sentence imposed.        Article 6 (Art. 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 (...).        (...)        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;      (...)."   2.    The Commission recalls at the outset that it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights or freedoms set out in the Convention (cf. No. 12013/86, Dec. 10.3.89, D.R. 59, p. 111).   3.    The applicant complains that he did not receive a fair trial in the determination of the criminal charges against him, in that the Court of Appeal rejected his request that A.L. and H.H., whose statements were used in evidence, should be examined by the investigating judge.        The guarantees in paras. 2 and 3 (d) of Article 6 (Art. 6-2, 6-3-d) of the Convention are specific aspects of the right to a fair trial set forth in paragraph 1. The Commission will consider the complaints under Article 6 paras. 1, 2 and 3 (Art. 6-1+6-2+6-3) taken together (cf. mutatis mutandis, 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 (cf. Eur. Court H.R., Saïdi judgment of 20 September 1993, to be published in Series A no. 261-C, para. 43).        The Commission notes that the applicant declared before the police and the Regional Court that he had supplied cocaine on several occasions between 1 January 1990 and 14 February 1990 and that on 14 February 1990 he had carried 19 balls of cocaine, which declaration was supported by the statements of D.R., A.L. and H.H. and the police reports on his arrest, and that he withdrew his declaration before the Court of Appeal in respect of the supplying and selling of cocaine.        The Commission recalls that, 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 involved (cf. No. 8414/78, Dec. 4.7.1979, 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 (Saïdi judgment, ibid., para. 43).        The Commission notes that the applicant and his lawyer were given ample opportunity before the Court of Appeal to challenge the statements of D.R., A.L. and H.H. and the other evidence before the Court and to convince the Court of Appeal of the necessity to have A.L. and H.H. examined.        Recalling that it is in principle within the discretionary power of the national courts to establish whether the hearing of witnesses is likely to be of assistance for discovering the truth and, if not, to decide against the calling of such witnesses (cf. No. 8231/78, Dec. 6.3.82, D.R. 28 p. 5) and noting that the applicant's conviction was, inter alia, based on his declarations before the police and the Regional Court that he had in fact committed the acts he was charged with, the Commission cannot find that the rejection of the applicant's request to examine A.L. and H.H. deprived him of a fair hearing as required by Article 6 (Art. 6).        It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    As to the applicant's complaint that the domestic courts did not properly respond to his argument in respect of the sentence imposed by the Regional Court, the Commission finds no appearance of a violation of the Convention.        It follows that this part of the application is 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)