KCM v NETHERLANDS - 21034/92 [1995] ECHR 108 (09 January 1995)

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AS TO THE ADMISSIBILITY OF Application No. 21034/92 by K.C.M. against the Netherlands The European Commission of Human Rights sitting in private on 9 January 1995, the following members being present: MM. H. DANELIUS, Acting President C.L. ROZAKIS F. ERMACORA E. BUSUTTIL G. JÖRUNDSSON S. TRECHSEL A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H.G. SCHERMERS Mrs. G.H. THUNE Mr. F. MARTINEZ Mrs. J. LIDDY MM. 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 E. KONSTANTINOV G. RESS Mr. M. de SALVIA, Deputy 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 26 November 1992 by K.C.M. against the Netherlands and registered on 4 December 1992 under file No. 21034/92; 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 United Kingdom citizen, born in 1961 in Hong Kong, and at present serving a prison sentence in the Netherlands. Before the Commission he is represented by Mrs. G.E.M. Later, a lawyer practising in The Hague. The facts of the case, as submitted by the applicant, may be summarised as follows. On 12 January 1990 a summons to be appear on 23 January 1990 before the Regional Court (Arrondissementsrechtbank) of Almelo on charges of extortion, offences against the Opium Act and participation in a criminal organisation was served on the applicant in person, who at that time was detained in a remand centre. The applicant's lawyer had already been provided with a copy of the summons on 10 January 1990. On 23 January 1990 a hearing took place before the Regional Court. The applicant was present and was assisted by his lawyer and an interpreter. At the beginning of the hearing, immediately following the prosecution's introduction of the case, the Regional Court replaced the interpreter at the request of the applicant, who had stated that he had difficulties in understanding the interpreter. The applicant had no difficulties in understanding the second interpreter. On 30 January 1990 the Regional Court convicted the applicant of extortion, importation of drugs and trafficking in drugs and participation in a criminal organisation and sentenced him to nine years' imprisonment. Both the applicant and the prosecution filed an appeal against this judgment with the Court of Appeal (Gerechtshof) of Arnhem. On 13 July 1990, 4 October 1990, 14 November 1990, 24 January 1991 and 21 March 1991 hearings took place before the Court of Appeal, during which the Court of Appeal examined, inter alia, a number of witnesses. The defence withdrew its request to hear the witness A., agreed that the Court would not examine the witness B, and was provided with the opportunity to examine the witnesses C., D. and E. before the Court of Appeal. At all these hearings the applicant was present and assisted by his lawyer and an interpreter. In the course of these hearings the applicant repeatedly stated he had no difficulties in understanding the interpreters. In his final address to the Court of Appeal the applicant stated that in the proceedings against him he had been assisted by an interpreter each time he had appeared before a judge, that he saw no grounds to doubt the fairness of the trial and that 90% of what the court had heard from the interpreters was correct. On 4 April 1991 the Court of Appeal quashed the judgment of the Regional Court, convicted the applicant of extortion committed together with others, importation of drugs and trafficking in drugs and participation in a criminal organisation and sentenced him to nine years' imprisonment. When the judgment was pronounced the applicant was present and assisted by an interpreter. The Court of Appeal based its conviction on, inter alia, police reports, recorded telephone conversations between, inter alia, the applicant and the co-accused, and statements by the applicant and the witnesses A., B., C., D. and E. The Court of Appeal rejected the applicant's preliminary objection that the prosecution should be declared inadmissible since it had brought the case before the same Court of Appeal judges, who in the cases against the co-accused had already expressed an opinion about the applicant's involvement in the criminal organisation at issue. It held in this respect that the mere fact that, in cases against co- accused, it had expressed an opinion about the applicant's involvement in the criminal organisation did not mean that it was prejudiced on this point, since the question whether or not the applicant was guilty on this point was examined in a separate investigation against him and the answer to this question further depended on what the applicant himself and the witnesses for the defence stated before the Court of Appeal in the applicant's case. The Court of Appeal did not exclude the possibility that, on the basis of these statements, it would reach a finding as regards the applicant's involvement in the criminal organisation which was different from its finding in the other cases. The Court further held that, given that none of its members had been involved in the gathering of evidence against the applicant or in any decisions at the stage preceding the Court of Appeal's examination, the applicant had no reasonable grounds to question the Court of Appeal's independence or impartiality, and that even the Court of Appeal's possible partiality in its present composition would not lead to the inadmissibility of the prosecution. The Court of Appeal also rejected the applicant's complaint that the summons and the judgment of the Regional Court had not been translated into a language which the applicant understood, holding that Article 6 of the Convention requires that an accused must be informed in a language which he understands and in detail of the nature and cause of the accusation against him, but does not require that this must be done in writing. Given that the applicant had been assisted by an interpreter throughout the criminal proceedings against him, including the preliminary and subsequent judicial investigation, that he had stated on several occasions that the interpretation was satisfactory and that it also appeared from his attitude during his trial that he was fully aware of the charges against him, the Court of Appeal considered that the requirement of Article 6 had been complied with. The Court of Appeal also rejected the applicant's complaint that there was no interpreter when the Regional Court pronounced its judgment. The Court of Appeal noted that, although the procès-verbal of the pronouncement of the judgment did not mention whether or not the applicant was assisted by an interpreter, the applicant had stated that he had been assisted by an interpreter each time he had appeared before a judge and that the applicant himself had filed a timely appeal against this judgment by a declaration in accordance with Section 451a para. 1 of the Code of Criminal Procedure. In these circumstances the Court of Appeal did not find it established that no interpreter was present when the Regional Court pronounced its judgment. It further held that even if this would have been the case, the applicant had not been harmed in his defence, as it had sufficiently appeared from the examination before the Court of Appeal and the applicant's course of action that he was familiar with the Regional Court's judgment when it was pronounced and in any event shortly thereafter. The applicant's subsequent appeal in cassation to the Supreme Court (Hoge Raad) was rejected on 26 May 1992. Insofar as the applicant complained that important documents such as the summons and the judgments in his case had not been translated into a language he understood, the Supreme Court accepted the Court of Appeal's reasoning. As to the applicant's complaint that the Court of Appeal could not be regarded as impartial, the Supreme Court also accepted the Court of Appeal's reasoning. It further held that the mere argument submitted by the applicant that his case had been dealt with by the Court of Appeal in the same composition as in the cases against a number of co- accused, where it had found that those co-accused belonged together with, among others, the applicant to a criminal organisation did not warrant the conclusion that there were exceptional circumstances resulting in weighty indications that a judge was prejudiced. According to the Supreme Court it belonged to the normal statutory task of a judge to decide on the lawfulness of the proceedings and to determine whether or not and to what extent an accused was guilty of the offences he was charged with on the basis of the charges brought against him and the examination before the trial court, without having regard to his findings in other cases against other suspects. COMPLAINTS The applicant complains under Article 6 paras. 1 and 2 of the Convention that the Court of Appeal was partial and prejudiced, as in the same composition it had already decided the cases against co- accused in which it had expressed an opinion as to the applicant's involvement in a criminal organisation. The applicant further complains under Article 6 para. 3 (a), (b), (d) and (e) of the Convention that he was not provided with a written translation of the summons and the judgment of the Regional Court, that there was no interpreter when the Regional Court pronounced its judgment, and that therefore he was not provided with sufficient facilities to prepare and conduct his defence properly and adequately. He also complains that he was given insufficient possibilities to question the witnesses examined before the trial courts. THE LAW The applicant considers that the criminal charges against him were not determined in accordance with the requirements of Article 6 paras. 1, 2 and 3 (Art. 6-1, 6-2, 6-3) of the Convention. He submits that the Court of Appeal in the same composition had already decided the cases against a number of co-accused, in which it had expressed an opinion as to the applicant's involvement in the criminal organisation with whose membership those co-accused were charged. He further submits that he could not properly exercise his defence rights, since he was not provided with written translations of certain documents, such as the summons and the judgment of the Regional Court, there was no interpreter when the Regional Court pronounced its judgment, and he was not provided with sufficient possibilities to question the witnesses examined before the trial courts. 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 an independent and impartial tribunal (...). (...) 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; b. to have adequate time and facilities for the preparation of his defence; c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; 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; e. to have the free assistance of an interpreter if he cannot understand or speak the language used in court." The Commission first notes that the decision of the Supreme Court, which was the final decision regarding the subject of the present application, was given on 26 May 1992, whereas the application was submitted to the Commission on 26 November 1992. The question could therefore arise whether the six months rule contained in Article 26 (Art. 26) of the Convention has been complied with by the applicant (cf. Eur. Court H.R., Oberschlick judgment of 23 May 1991, Series A no. 204, p. 21, paras 39-40; No. 11662/85, Oberschlick v. Austria, Comm. Report 14.12.89, Appendix II; and No. 12945/87, Dec. 4.4.90, D.R. 65, 173). The Commission recalls that, according to the Court's case-law as regards the time-limits under the Convention, the first day of a time-limit is considered to start on the day following the final decision, whereas "months" are calculated as calendar months regardless of their actual duration (cf. Eur. Court H.R., Istituto di Vigilanza judgment of 22 September 1993, Series A no. 265-C, p. 35, para. 14; Eur. Court H.R., Figus Milone judgment of 22 September 1993, Series A no. 265-D, p. 43, para. 14; and, Eur. Court H.R., Goisis judgment of 22 September 1993, Series A no. 265-E., p. 51, para. 19). The Commission is of the opinion that the day on which the final national judgment was rendered forms no part of the six months' time- limit contained in Article 26 (Art. 26) of the Convention. This time- limit starts to count on the date following the date on which the final decision has been pronounced orally in public, or - in cases where it is not pronounced in public - following the date on which the applicant or his representative was informed of this final decision. The time- limit expires six calendar months later. The Commission therefore finds that the application cannot be rejected for having been submitted out of time, since it has been introduced on the last day within the time-limit contained in Article 26 (Art. 26) of the Convention, i.e. 26 November 1992. As regards the substance of the application, the Commission will examine the complaints under Article 6 paras. 1, 2 and 3 (Art. 6-1+6-2+6-3) taken together, since the guarantees in paras. 2 and 3 of Article 6 (Art. 6-2, 6-3) represent constituent elements of the general concept of a fair trial set forth in para. 1 (Art. 6-1) of this provision (cf. Eur. Court H.R., Kamasinski judgment of 19 December 1989, Series A no. 168, p. 31, para. 62). Insofar as the applicant complains that the proceedings before the Regional Court were not in conformity with Article 6 (Art. 6) of the Convention, the Commission notes that the Regional Court's judgment was quashed on appeal and that the Court of Appeal convicted the applicant after a full new examination of his case. In these circumstances the Commission considers that the applicant can no longer claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention of the proceedings before the Regional Court. Insofar as the applicant complains that he was not provided with a written translation of certain documents in his case such as the summons and the judgment in first instance, the Commission recalls that the absence of a written translation of a judgment does not in itself entail a violation of Article 6 para. 3 (e) (Art. 6-3-e) of the Convention (see Kamasinski judgment, loc.cit., p. 38, para. 85). The Commission further observes that there was interpretation throughout the criminal proceedings, including the preliminary investigation, and that the applicant made no complaint about inadequacy of that interpretation, nor suggested that he was unable to communicate effectively with the lawyer who represented him throughout the proceedings against him, either during the preliminary investigation or while the proceedings were pending. The Commission further observes that the applicant lodged timely appeals and stated his grounds for appealing, either alone or through his lawyer. Taking into consideration the situation as a whole in which the defence was placed in preparing the applicant's defence, the Commission finds no appearance of a violation of Article 6 para. 3 (a), (b), (c) and (e) (Art. 6-3-a, 6-3-b, 6-3-c, 6-3-e) of the Convention in this respect. As regards the applicant's complaint under Article 6 para. 3 (d) (Art. 6-3-d) that he was not provided with sufficient possibilities to question the witnesses examined before the trial courts, the Commission notes in the first place that this complaint has not been raised before the Supreme Court, and that thus the question arises whether in this respect the applicant has exhausted domestic remedies in accordance with Article 26 (Art. 26) of the Convention. However, even assuming that the applicant has exhausted domestic remedies on this point, the Commission, noting that the Court of Appeal examined several witnesses, all of whom were equally examined by the defence, whereas the defence withdrew its request to hear one witness and agreed that another witness would not be examined before the Court of Appeal, finds no substantiation of the allegation that the defence rights were restricted in the examination of the witnesses before the trial courts. It therefore finds no appearance of a violation of Article 6 para. 3 (d) (Art. 6-3-d) of the Convention in this respect. Insofar as the applicant complains that the Court of Appeal was partial and biased, as in the same composition it had already decided the cases against a number of co-accused in which it had expressed an opinion about the applicant's involvement in a criminal organisation, the Commission recalls that the presumption of innocence may be violated if a judicial decision amounts in substance to a determination of a person's guilt without that person having been proved guilty according to law and in particular without him having had an opportunity to exercise the rights of the defence (cf. Eur. Court H.R., Minelli judgment of 25 March 1983, Series A no. 62, p. 18, para. 37; and Allenet de Ribemont v. France, Comm. Report 12.10.93, para. 67). However, in the present circumstances the Commission finds that this was not the case. In the judgments concerning the co-accused the courts were not called upon to determine the guilt of the applicant, but that of the co-accused. Part of the evidence against the co-accused may have concerned the extent to which the applicant was involved in the criminal organisation and what conclusions could be drawn therefrom. Insofar as the facts established indicated the involvement of the applicant in the criminal organisation in the case against the co-accused, the Commission finds that the trial court's findings as to this involvement must be considered to be a part of the trial court's evaluation of the evidence presented in the cases against the co- accused. It did not, however, through this evaluation determine the guilt of the applicant, which, as explicitly stated by the Court of Appeal, was a matter to be considered during the applicant's own trial, whilst the Court of Appeal did not exclude the possibility that it would acquit the applicant of the charge of participation in a criminal organisation, this being dependent on the evaluation of the evidence submitted in the applicant's own trial. The Commission recalls that the Court of Appeal examined several witnesses, police reports and recorded telephone conversations between, inter alia, the applicant and certain co-accused. It is satisfied that the applicant's conviction was based on an evaluation of this evidence. Especially, there is no indication that the Court of Appeal in fulfilling its functions started from the conviction or assumption that the applicant had committed the acts with which he was charged. The Commission, therefore, concludes that the judgment of the Court of Appeal of 4 April 1991 did not amount to a breach of the presumption of innocence guaranteed under Article 6 para. 2 (Art. 6-2) of the Convention. As regards the complaint that the Court of Appeal was not impartial, 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 and also to an objective test (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. Under the objective test, it must be determined whether there are ascertainable facts which may raise doubts as to the judges' impartiality. This implies that it must be established whether there was a legitimate reason to fear that they lacked impartiality. The view of the applicant is important but not decisive. What is decisive is not the subjective apprehensions of the accused, however understandable, but whether, in the particular circumstances of the case, his fears can be held to be objectively justified (cf. Eur. Court H.R.. Nortier judgment of 24 August 1993, Series A no. 267, p. 22, para. 58). The Commission considers that the mere fact that a judge has already taken decisions in related criminal proceedings concerning co- accused charged within the same factual context cannot in itself be regarded as justifying anxieties about his impartiality in the determination of the charges against the applicant himself. What matters is the scope and nature of the decisions taken by the judge before deciding on the charges against the applicant. It appears from the applicant's submissions and the reasoning of the Court of Appeal, when it rejected the applicant's preliminary objection on this point, that when the co-accused were found guilty of participation in a criminal organisation a number of names, among which the name of the applicant, were mentioned as possible members of this organisation. The Commission notes that the Court of Appeal, whose members had not taken any decision in respect of the applicant at the stage preceding the appeal proceedings, explicitly stated that the question whether or not the applicant was guilty of belonging to a criminal organisation had been examined in a separate investigation against him and that the answer to this question was further dependent on what the applicant himself and the witnesses for the defence would state before the Court of Appeal in his own case. The Court of Appeal did not exclude the possibility that, on the basis of these statements, it would reach a finding as regards the applicant's involvement in the criminal organisation which was different from its finding in the other cases. The Commission further notes that the Court of Appeal did not use the judgments in the cases against the co-accused as evidence against the applicant, but based its finding of the applicant's guilt on, inter alia, police reports, recorded telephone conversations between, inter alia, the applicant and co-accused, and statements by the applicant, co-accused and a number of witnesses, all of which elements had been subject to an examination by the parties before the Court of Appeal in the proceedings against the applicant. In these circumstances, the Commission cannot find that the applicant's fear as to the impartiality of the judges of the Court of Appeal can be regarded as objectively justified and, therefore, finds no appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention in this respect. Considering the proceedings as a whole, noting that the applicant, who was assisted by a lawyer and an interpreter throughout the proceedings, was given ample opportunity to state his case and to challenge the evidence against him, including the examination of witnesses before the trial court, the Commission finds no indication that the applicant's trial was not in conformity with the requirements of Article 6 (Art. 6) of the Convention. It follows that 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, by a majority, DECLARES THE APPLICATION INADMISSIBLE. Deputy Secretary to the Commission Acting President of the Commission (M. DE SALVIA) (H DANELIUS)

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You are here: BAILII >> Databases >> European Court of Human Rights >> KCM v NETHERLANDS - 21034/92 [1995] ECHR 108 (09 January 1995) URL: http://www.bailii.org/eu/cases/ECHR/1995/108.html Cite as: [1995] ECHR 108

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