هيثم الفقى
07-16-2009, 01:09 PM
X. v. THE NETHERLANDS - 2383/64 [1967] ECHR 16 (03 April 1967)
THE FACTSWhereas the facts of the case as presented by the Applicant may besummarised as follows:The Applicant is a German citizen, born in 1901 and at present livingin The Hague.He has lodged two previous Applications with the Commission which weredeclared inadmissible on 11th April, 1961 (Application No.886/50) andon 2nd October, 1964 (Application No. 1795/63). The facts relating tothe present Application, as they have been presented by the Applicant,may be summarised as follows:1. As the Applicant considered that the North Holland PublishingCompany (which was the editor of one of the Applicant's books) haddefrauded him and told lies in the course of certain court proceedings,he sent a circular letter to some members of the Dutch Academy ofSciences, proposing that the Academy should break off relations withthe publishing company concerned.The editor complained to the Public Prosecutor of defamation and itseems that court proceedings were instituted against the Applicant.The Applicant was apparently convicted and sentenced to a fine by theDistrict Court (Arrondissements-Rechtbank) in The Hague on .. October,1963, and his conviction seems to have been upheld on appeal by theCourt of Appeal (Gerechtshof) in The Hague on .. March, 1964, and bythe Supreme Court (Hoge Raad) on .. June, 1964.The Applicant also asked for a retrial (herziening) but thisapplication was rejected by the Supreme Court on .. September, 1964.The Applicant states that in the proceedings against him he had askedthe Public Prosecutor and the Attorney-General to call six witnessesin order to show that his circular letter to the Academy had beenjustified by 'public interest'. By letters of .. and .. February, 1964,the Attorney-General had rejected this request.The Applicant submitted a similar petition to the President of theCourt (apparently the Court of Appeal) who rejected it on .. February,1964. He repeated his request orally during the trial, but withoutsuccess.He states that he also invoked this point in his appeal to the SupremeCourt and that the Supreme Court rejected the appeal on the ground thatit did not appear from the case-file that the Applicant had in factasked leave to call the witnesses concerned. According to theApplicant, this was due to the fact that the Attorney-General hadremoved certain documents from the case-file before submitting it tothe Supreme Court.He alleges a violation of Article 6, paragraph (3) (d), of theConvention.In regard to this complaint, the Applicant submitted inter alia thefollowing documents:(a) A letter of .. February, 1964, from the Attorney-General at theCourt of Appeal; in this letter reference was made to the Applicant'srequest for a hearing of six witnesses and it was pointed out that theCourt of Appeal could hardly make any such new investigation in thecase. The Attorney-General proposed, therefore, that these witnessesshould be heard by the investigating judge and asked the Applicantwhether he agreed to this.(b) The Applicant's reply to the Attorney-General, dated .. February,1964. In this reply, the Applicant stated that he did not agree to theAttorney-General's proposal, since he found it necessary to hear thewitnesses under oath and in public.(c) The Attorney-General's letter of .. February, 1964, to theApplicant. By this letter, the Attorney-General informed the Applicantthat he was unable to grant the Applicant's request for a hearing ofthe six witnesses before the Court of Appeal.(d) The Applicant's letter of .. February, 1964, by which he asked theCourt of Appeal to call the six witnesses. He complained of the refusalof the Attorney-General and stated that a hearing before theinvestigating judge as proposed by the Attorney-General did not serveany useful purpose.(e) The reply of the Court of Appeal to the Applicant's letter under(d). The Registrar of the Court informed the Applicant that he couldapply for a hearing of the six witnesses in connection with the oralpleadings before the Court and that Court would then decide whetherthere were reasons to hear the witnesses and adjourn the case.(f) A press cutting of .. March, 1964, regarding the hearing of theApplicant's case by the Court of Appeal. In this press cutting, it wasstated that the Applicant had asked the Court to call six witnesses(three professors, one lawyer, the publisher concerned and one PublicProsecutor) in order to prove that the statements made by him had beenjustified by the public interest. The Court of Appeal had declared thatit did not consider it necessary to hear these witnesses and thePresident of the Court had also pointed out that the public interestcould not justify the Applicant's acquittal, if the expressions usedhad been unnecessarily insulting.(g) The Applicant's letter of .. July, 1964, to the Supreme Court. Inthis letter, the Applicant complained of the Supreme Court's decisionof .. June, 1964. The Applicant referred to a statement by the SupremeCourt according to which it did not appear that the witnesses concernedwere included in 'the list of witnesses'. In the Applicant's opinion,this was due to the fact that the Supreme Court's file had beenincomplete.(h) The Supreme Court's decision of .. September, 1964, by which theApplicant's application for new proceedings was rejected. Among otherreasons given for this decision, the Supreme Court pointed out that thefact that certain witnesses had not been called did not in itselfjustify new proceedings.2. The Applicant states that, after having a dispute with the NorthHolland Publishing Company in respect of the publication of a book, heinstituted civil proceedings against the company before the DistrictCourt in Amsterdam. He states that his claim was rejected by the Courton the ground that he "had relations to the (former) German Ambassadorhere, Dr. Mühlenfeldt, and through him to Minister von Brentano, GermanMinister of Foreign Affairs, and had made for the German Government tworeports on Dutch mentality in general and attitude towards Germanyespecially".The Applicant states that he then lodged a criminal charge with thePublic Prosecutor, invoking Article 14 of the Convention, but that hewas informed that the Public Prosecutor could not prosecute a court.The same position was taken by the Attorney-General.He then asked the Court of Appeal in Amsterdam to institute criminalproceedings against the members of the District Court in respect ofperversion of justice and violation of Article 14 of the Convention.On .. November, 1964, the Court of Appeal dismissed his petition andindicated in its decision that, in so far as the Applicant alleged aviolation of Article 14 of the Convention, he could lodge anapplication with the European 'Court' of Human Rights. He alleges that,by reason of his German nationality, he has been subjected todiscrimination contrary to Article 14 of the Convention.THE LAWWhereas the Applicant's first complaint concerns the fact that incertain defamation proceedings he was not allowed to call sixwitnesses;Whereas he submits that he wished to show, by the evidence to be givenby these witnesses, that certain defamatory remarks which he had madehad been justified by considerations of 'public interest';Whereas the Applicant has submitted a number of documents relating tothis complaint; whereas it appears from these documents that the Courtof Appeal had reasonable grounds for rejection of the Applicant'srequest for a hearing of the witnesses concerned; whereas, inparticular, the Court of Appeal seems to have considered that theprinciple of 'public interest' could not be invoked as a ground ofjustification, where unnecessarily insulting language had been used;Whereas the Commission has consistently held that the provision ofArticle 6, paragraph (3) (d) (Art. 6-3-d), of the Convention does notgive an accused person a general right to call witnesses on his behalf;whereas, in particular, a court is justified in refusing to summonwitnesses whose statements could not be of any relevance in the case(see, for instance, Application No. 617/59, Yearbook III, pages 390 -392);Whereas the Commission is satisfied that in the present case there hasbeen no violation of the Applicant's right "to obtain the attendanceand examination of witnesses on his behalf under the same conditionsas witnesses against him" as guaranteed by Article 6, paragraph (3) (d)(Art. 6-3-d), of the Convention;Whereas it follows that this part of the Application is manifestlyill-founded within the meaning of Article 27,paragraph (2) (Art. 27-2),of the Convention;Whereas, in so far as the Applicant complains of discrimination in thecivil proceedings before the District Court, it is to be observed that,under Article 25 (Art. 25) of the Convention, the Commission may onlydeal with a matter after all domestic remedies have been exhaustedaccording to the generally recognised rules of international law; andwhereas the Applicant has not shown that he appealed against thedecision by which his claim was rejected by the District Court;whereas, therefore, he has not shown that he exhausted the remediesavailable to him under Netherlands law; whereas, moreover, anexamination of the case as it has been submitted does not disclose theexistence of any special circumstances which might have absolved theApplicant, according to the generally recognised rules of internationallaw, from exhausting the domestic remedies at his disposal; whereas,therefore, the condition as to the exhaustion of domestic remedies laiddown in Articles 26 and 27, paragraph (3) (Art. 26, 27-3), of theConvention has not been complied with by the Applicant.Now therefore the Commission declares this Application INADMISSIBLE.
THE FACTSWhereas the facts of the case as presented by the Applicant may besummarised as follows:The Applicant is a German citizen, born in 1901 and at present livingin The Hague.He has lodged two previous Applications with the Commission which weredeclared inadmissible on 11th April, 1961 (Application No.886/50) andon 2nd October, 1964 (Application No. 1795/63). The facts relating tothe present Application, as they have been presented by the Applicant,may be summarised as follows:1. As the Applicant considered that the North Holland PublishingCompany (which was the editor of one of the Applicant's books) haddefrauded him and told lies in the course of certain court proceedings,he sent a circular letter to some members of the Dutch Academy ofSciences, proposing that the Academy should break off relations withthe publishing company concerned.The editor complained to the Public Prosecutor of defamation and itseems that court proceedings were instituted against the Applicant.The Applicant was apparently convicted and sentenced to a fine by theDistrict Court (Arrondissements-Rechtbank) in The Hague on .. October,1963, and his conviction seems to have been upheld on appeal by theCourt of Appeal (Gerechtshof) in The Hague on .. March, 1964, and bythe Supreme Court (Hoge Raad) on .. June, 1964.The Applicant also asked for a retrial (herziening) but thisapplication was rejected by the Supreme Court on .. September, 1964.The Applicant states that in the proceedings against him he had askedthe Public Prosecutor and the Attorney-General to call six witnessesin order to show that his circular letter to the Academy had beenjustified by 'public interest'. By letters of .. and .. February, 1964,the Attorney-General had rejected this request.The Applicant submitted a similar petition to the President of theCourt (apparently the Court of Appeal) who rejected it on .. February,1964. He repeated his request orally during the trial, but withoutsuccess.He states that he also invoked this point in his appeal to the SupremeCourt and that the Supreme Court rejected the appeal on the ground thatit did not appear from the case-file that the Applicant had in factasked leave to call the witnesses concerned. According to theApplicant, this was due to the fact that the Attorney-General hadremoved certain documents from the case-file before submitting it tothe Supreme Court.He alleges a violation of Article 6, paragraph (3) (d), of theConvention.In regard to this complaint, the Applicant submitted inter alia thefollowing documents:(a) A letter of .. February, 1964, from the Attorney-General at theCourt of Appeal; in this letter reference was made to the Applicant'srequest for a hearing of six witnesses and it was pointed out that theCourt of Appeal could hardly make any such new investigation in thecase. The Attorney-General proposed, therefore, that these witnessesshould be heard by the investigating judge and asked the Applicantwhether he agreed to this.(b) The Applicant's reply to the Attorney-General, dated .. February,1964. In this reply, the Applicant stated that he did not agree to theAttorney-General's proposal, since he found it necessary to hear thewitnesses under oath and in public.(c) The Attorney-General's letter of .. February, 1964, to theApplicant. By this letter, the Attorney-General informed the Applicantthat he was unable to grant the Applicant's request for a hearing ofthe six witnesses before the Court of Appeal.(d) The Applicant's letter of .. February, 1964, by which he asked theCourt of Appeal to call the six witnesses. He complained of the refusalof the Attorney-General and stated that a hearing before theinvestigating judge as proposed by the Attorney-General did not serveany useful purpose.(e) The reply of the Court of Appeal to the Applicant's letter under(d). The Registrar of the Court informed the Applicant that he couldapply for a hearing of the six witnesses in connection with the oralpleadings before the Court and that Court would then decide whetherthere were reasons to hear the witnesses and adjourn the case.(f) A press cutting of .. March, 1964, regarding the hearing of theApplicant's case by the Court of Appeal. In this press cutting, it wasstated that the Applicant had asked the Court to call six witnesses(three professors, one lawyer, the publisher concerned and one PublicProsecutor) in order to prove that the statements made by him had beenjustified by the public interest. The Court of Appeal had declared thatit did not consider it necessary to hear these witnesses and thePresident of the Court had also pointed out that the public interestcould not justify the Applicant's acquittal, if the expressions usedhad been unnecessarily insulting.(g) The Applicant's letter of .. July, 1964, to the Supreme Court. Inthis letter, the Applicant complained of the Supreme Court's decisionof .. June, 1964. The Applicant referred to a statement by the SupremeCourt according to which it did not appear that the witnesses concernedwere included in 'the list of witnesses'. In the Applicant's opinion,this was due to the fact that the Supreme Court's file had beenincomplete.(h) The Supreme Court's decision of .. September, 1964, by which theApplicant's application for new proceedings was rejected. Among otherreasons given for this decision, the Supreme Court pointed out that thefact that certain witnesses had not been called did not in itselfjustify new proceedings.2. The Applicant states that, after having a dispute with the NorthHolland Publishing Company in respect of the publication of a book, heinstituted civil proceedings against the company before the DistrictCourt in Amsterdam. He states that his claim was rejected by the Courton the ground that he "had relations to the (former) German Ambassadorhere, Dr. Mühlenfeldt, and through him to Minister von Brentano, GermanMinister of Foreign Affairs, and had made for the German Government tworeports on Dutch mentality in general and attitude towards Germanyespecially".The Applicant states that he then lodged a criminal charge with thePublic Prosecutor, invoking Article 14 of the Convention, but that hewas informed that the Public Prosecutor could not prosecute a court.The same position was taken by the Attorney-General.He then asked the Court of Appeal in Amsterdam to institute criminalproceedings against the members of the District Court in respect ofperversion of justice and violation of Article 14 of the Convention.On .. November, 1964, the Court of Appeal dismissed his petition andindicated in its decision that, in so far as the Applicant alleged aviolation of Article 14 of the Convention, he could lodge anapplication with the European 'Court' of Human Rights. He alleges that,by reason of his German nationality, he has been subjected todiscrimination contrary to Article 14 of the Convention.THE LAWWhereas the Applicant's first complaint concerns the fact that incertain defamation proceedings he was not allowed to call sixwitnesses;Whereas he submits that he wished to show, by the evidence to be givenby these witnesses, that certain defamatory remarks which he had madehad been justified by considerations of 'public interest';Whereas the Applicant has submitted a number of documents relating tothis complaint; whereas it appears from these documents that the Courtof Appeal had reasonable grounds for rejection of the Applicant'srequest for a hearing of the witnesses concerned; whereas, inparticular, the Court of Appeal seems to have considered that theprinciple of 'public interest' could not be invoked as a ground ofjustification, where unnecessarily insulting language had been used;Whereas the Commission has consistently held that the provision ofArticle 6, paragraph (3) (d) (Art. 6-3-d), of the Convention does notgive an accused person a general right to call witnesses on his behalf;whereas, in particular, a court is justified in refusing to summonwitnesses whose statements could not be of any relevance in the case(see, for instance, Application No. 617/59, Yearbook III, pages 390 -392);Whereas the Commission is satisfied that in the present case there hasbeen no violation of the Applicant's right "to obtain the attendanceand examination of witnesses on his behalf under the same conditionsas witnesses against him" as guaranteed by Article 6, paragraph (3) (d)(Art. 6-3-d), of the Convention;Whereas it follows that this part of the Application is manifestlyill-founded within the meaning of Article 27,paragraph (2) (Art. 27-2),of the Convention;Whereas, in so far as the Applicant complains of discrimination in thecivil proceedings before the District Court, it is to be observed that,under Article 25 (Art. 25) of the Convention, the Commission may onlydeal with a matter after all domestic remedies have been exhaustedaccording to the generally recognised rules of international law; andwhereas the Applicant has not shown that he appealed against thedecision by which his claim was rejected by the District Court;whereas, therefore, he has not shown that he exhausted the remediesavailable to him under Netherlands law; whereas, moreover, anexamination of the case as it has been submitted does not disclose theexistence of any special circumstances which might have absolved theApplicant, according to the generally recognised rules of internationallaw, from exhausting the domestic remedies at his disposal; whereas,therefore, the condition as to the exhaustion of domestic remedies laiddown in Articles 26 and 27, paragraph (3) (Art. 26, 27-3), of theConvention has not been complied with by the Applicant.Now therefore the Commission declares this Application INADMISSIBLE.