European Court of Human Rights

THE FACTS

Whereas the facts of the case as presented by the Applicant may be
summarised as follows:

The Applicant is a German citizen, born in 1901 and at present living
in The Hague.

He has lodged two previous Applications with the Commission which were
declared inadmissible on 11th April, 1961 (Application No.886/50) and
on 2nd October, 1964 (Application No. 1795/63). The facts relating to
the present Application, as they have been presented by the Applicant,
may be summarised as follows:

1. As the Applicant considered that the North Holland Publishing
Company (which was the editor of one of the Applicant's books) had
defrauded him and told lies in the course of certain court proceedings,
he sent a circular letter to some members of the Dutch Academy of
Sciences, proposing that the Academy should break off relations with
the publishing company concerned.

The editor complained to the Public Prosecutor of defamation and it
seems that court proceedings were instituted against the Applicant.

The Applicant was apparently convicted and sentenced to a fine by the
District Court (Arrondissements-Rechtbank) in The Hague on .. October,
1963, and his conviction seems to have been upheld on appeal by the
Court of Appeal (Gerechtshof) in The Hague on .. March, 1964, and by
the Supreme Court (Hoge Raad) on .. June, 1964.

The Applicant also asked for a retrial (herziening) but this
application was rejected by the Supreme Court on .. September, 1964.

The Applicant states that in the proceedings against him he had asked
the Public Prosecutor and the Attorney-General to call six witnesses
in order to show that his circular letter to the Academy had been
justified 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 the
Court (apparently the Court of Appeal) who rejected it on .. February,
1964. He repeated his request orally during the trial, but without
success.

He states that he also invoked this point in his appeal to the Supreme
Court and that the Supreme Court rejected the appeal on the ground that
it did not appear from the case-file that the Applicant had in fact
asked leave to call the witnesses concerned. According to the
Applicant, this was due to the fact that the Attorney-General had
removed certain documents from the case-file before submitting it to
the Supreme Court.

He alleges a violation of Article 6, paragraph (3) (d), of the
Convention.

In regard to this complaint, the Applicant submitted inter alia the
following documents:

(a) A letter of .. February, 1964, from the Attorney-General at the
Court of Appeal; in this letter reference was made to the Applicant's
request for a hearing of six witnesses and it was pointed out that the
Court of Appeal could hardly make any such new investigation in the
case. The Attorney-General proposed, therefore, that these witnesses
should be heard by the investigating judge and asked the Applicant
whether 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 the
Attorney-General's proposal, since he found it necessary to hear the
witnesses under oath and in public.

(c) The Attorney-General's letter of .. February, 1964, to the
Applicant. By this letter, the Attorney-General informed the Applicant
that he was unable to grant the Applicant's request for a hearing of
the six witnesses before the Court of Appeal.

(d) The Applicant's letter of .. February, 1964, by which he asked the
Court of Appeal to call the six witnesses. He complained of the refusal
of the Attorney-General and stated that a hearing before the
investigating judge as proposed by the Attorney-General did not serve
any 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 could
apply for a hearing of the six witnesses in connection with the oral
pleadings before the Court and that Court would then decide whether
there were reasons to hear the witnesses and adjourn the case.

(f) A press cutting of .. March, 1964, regarding the hearing of the
Applicant's case by the Court of Appeal. In this press cutting, it was
stated that the Applicant had asked the Court to call six witnesses
(three professors, one lawyer, the publisher concerned and one Public
Prosecutor) in order to prove that the statements made by him had been
justified by the public interest. The Court of Appeal had declared that
it did not consider it necessary to hear these witnesses and the
President of the Court had also pointed out that the public interest
could not justify the Applicant's acquittal, if the expressions used
had been unnecessarily insulting.

(g) The Applicant's letter of .. July, 1964, to the Supreme Court. In
this letter, the Applicant complained of the Supreme Court's decision
of .. June, 1964. The Applicant referred to a statement by the Supreme
Court according to which it did not appear that the witnesses concerned
were included in 'the list of witnesses'. In the Applicant's opinion,
this was due to the fact that the Supreme Court's file had been
incomplete.

(h) The Supreme Court's decision of .. September, 1964, by which the
Applicant's application for new proceedings was rejected. Among other
reasons given for this decision, the Supreme Court pointed out that the
fact that certain witnesses had not been called did not in itself
justify new proceedings.

2. The Applicant states that, after having a dispute with the North
Holland Publishing Company in respect of the publication of a book, he
instituted civil proceedings against the company before the District
Court in Amsterdam. He states that his claim was rejected by the Court
on the ground that he "had relations to the (former) German Ambassador
here, Dr. Mühlenfeldt, and through him to Minister von Brentano, German
Minister of Foreign Affairs, and had made for the German Government two
reports on Dutch mentality in general and attitude towards Germany
especially".

The Applicant states that he then lodged a criminal charge with the
Public Prosecutor, invoking Article 14 of the Convention, but that he
was 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 criminal
proceedings against the members of the District Court in respect of
perversion of justice and violation of Article 14 of the Convention.

On .. November, 1964, the Court of Appeal dismissed his petition and
indicated in its decision that, in so far as the Applicant alleged a
violation of Article 14 of the Convention, he could lodge an
application with the European 'Court' of Human Rights. He alleges that,
by reason of his German nationality, he has been subjected to
discrimination contrary to Article 14 of the Convention.

THE LAW

Whereas the Applicant's first complaint concerns the fact that in
certain defamation proceedings he was not allowed to call six
witnesses;

Whereas he submits that he wished to show, by the evidence to be given
by these witnesses, that certain defamatory remarks which he had made
had been justified by considerations of 'public interest';

Whereas the Applicant has submitted a number of documents relating to
this complaint; whereas it appears from these documents that the Court
of Appeal had reasonable grounds for rejection of the Applicant's
request for a hearing of the witnesses concerned; whereas, in
particular, the Court of Appeal seems to have considered that the
principle of 'public interest' could not be invoked as a ground of
justification, where unnecessarily insulting language had been used;

Whereas the Commission has consistently held that the provision of
Article 6, paragraph (3) (d) (Art. 6-3-d), of the Convention does not
give an accused person a general right to call witnesses on his behalf;
whereas, in particular, a court is justified in refusing to summon
witnesses 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 has
been no violation of the Applicant's right "to obtain the attendance
and examination of witnesses on his behalf under the same conditions
as 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 manifestly
ill-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 the
civil proceedings before the District Court, it is to be observed that,
under Article 25 (Art. 25) of the Convention, the Commission may only
deal with a matter after all domestic remedies have been exhausted
according to the generally recognised rules of international law; and
whereas the Applicant has not shown that he appealed against the
decision by which his claim was rejected by the District Court;
whereas, therefore, he has not shown that he exhausted the remedies
available to him under Netherlands law; whereas, moreover, an
examination of the case as it has been submitted does not disclose the
existence of any special circumstances which might have absolved the
Applicant, according to the generally recognised rules of international
law, from exhausting the domestic remedies at his disposal; whereas,
therefore, the condition as to the exhaustion of domestic remedies laid
down in Articles 26 and 27, paragraph (3) (Art. 26, 27-3), of the
Convention has not been complied with by the Applicant.

Now therefore the Commission declares this Application INADMISSIBLE.