TRIVEDI v. THE UNITED KINGDOM



AS TO THE ADMISSIBILITY OF

Application No. 31700/96

by Kailash Shanke TRIVEDI

against the United Kingdom

The European Commission of Human Rights sitting in private on

27 May 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

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

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

Mr. H.C. KRÜGER, 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 20 July 1995 by

Mr. Kailash Shanke Trivedi against the United Kingdom and registered

on 3 June 1996 under file No. 31700/96;

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 of Indian origin, born in 1950 and residing in

Grimsby. He is a medical practitioner. Before the Commission, he is

represented by Mr. P. Leach, solicitor of Liberty, London.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

In 1976 the applicant arrived in the United Kingdom and was

registered as a medical practitioner. By the end of 1992 he had some

1,300 patients on his list. One of them was Mr. C., an elderly man

suffering from a whole range of different types of illness, including

diabetes and chronic bronchitis. He frequently required medication and

often called the applicant to his home to administer it.

On 2 November 1992 the applicant submitted a claim form for night

visit fees to the Humberside Family Health Services Authority

("HFHSA"). The date on which he said he had visited Mr. C. and made a

prescription for him was 28 October 1992. He did exactly the same the

next day, on 3 November 1992 for a purported visit to Mr. C., at night

on 30 October 1992.

On 3 December 1992 Mr. C. took five prescriptions to the local

chemist. Each was separately dated. Mr. C. told the chemist that he

had been given all the prescriptions on the same day. The local

chemist became suspicious and contacted HFHSA. The prescriptions were

exposed to forensic examinations which revealed that they had been

written in three batches in reverse date order. On 17 December 1992

Mr. C. again went to the chemist's shop with six further prescriptions,

each bearing a different date. The chemist reported the matter to

HFHSA.

On 11, 17 and 29 December 1992 the applicant made further claims

for night visits to Mr. C. on 26, 28 and 30 November, 4, 6, 9, 11, 13,

17 and 26 December 1992.

On 28 January 1993 a statement was taken from Mr. C. by an

investigating officer, in the following terms:

"... I have been a patient of [the applicant] ... for two

years. He used to visit me regularly at my home but it was

at my request. He always told me to ring him after

10.00pm. Sometimes he would call at midnight and once he

came at 1.30am. ... I rang the doctor because I was always

running out of tablets. He only gave me enough to last one

week.

One day early in December 1992, [he] came to see me during

the night. I had rung him because I was running out of

tablets. When he came that night he gave me six

prescriptions all with different dates on. I took these

prescriptions to [the chemist] the next day. He gave me

the medicines and I told him the doctor had given the six

prescriptions at the same time.

I can remember the [applicant] doing this once before but

I can't remember when. I cannot remember ringing the

doctor or him calling on Christmas Eve. There was no

reason I know of to ring him on Christmas Eve. On Boxing

Day I went out shopping about 12.30pm and got back about

3.00pm. When I got back I found a prescription written by

[the applicant] had been pushed through the letter box. I

did not see the doctor on Boxing Day. I did not ring him

up that day either."

On 31 March 1993 the applicant was arrested and interviewed about

his visits to Mr. C.'s home, in the presence of his solicitor. He

declined to answer any questions.

On 20 July 1993 a further statement was taken from Mr. C. by the

investigating officer. It reads as follows:

"[The applicant] has a system where I had to ring him up

after 10.00pm if I wanted to see him. ... He gave me 10

pence to pay for the call but that was reduced to 5 pence

towards the end. I had to call him regularly because I was

always running out of medicines. When I rang him it was

always after 10.00pm. He always came sometimes quite late

and once at 2.00am. I was in bed at the time.

Every time [the applicant] visited me he left me one or

more prescriptions for me to take to the chemist. I did

ask him to prescribe more medicines for me in greater

quantities but he always told me that what he gave me was

all I needed.

On Christmas Day 1992 ... I came home about 8.00pm ... I

telephoned [the applicant] twice ... but all I got was an

answerphone giving another telephone number for another

doctor. I did not contact that other doctor. I wanted

some more tablets from [him]. I did contact him on Boxing

Day but I did not see him. He put a prescription through

my letter box.

I can say that every time I took a number of prescriptions

to [the chemist], it was always after [the applicant] had

given me them in one go. So if I took 5 prescriptions it

would be the day after [he] had given me the five all at

once."

On 3 August 1993 the applicant was charged with twelve counts of

false accounting under the Theft Acts of 1968 in respect of night

visits of Mr. C. in October, November and December 1992.

On 7 November 1994, a report by a Dr. L., drafted on 5 July 1994,

was served on the applicant. It contained the following information:

"Mr. C. is suffering from cerebral atrophy or thinning of

the brain. His symptoms are mental confusion and

unsteadiness leading to frequent falls, together with

behaviour best described as disinhibited. His condition

has developed over the last several months and is expected

to become worse. Because of the deterioration in his

intellect he will never be able to give evidence in court."

The trial started on 15 November 1994. The Crown's case was that

the applicant had made claims for payments in respect of night visits

to which he was not entitled and that the night visits in question had

not in fact taken place. The prosecution said that on two occasions

in December 1992, the applicant went to see Mr. C. in the night and

that on one of those occasions he handed to Mr. C. five prescriptions

at once and on the other occasion six. The prescription forms made by

the applicant to Mr. C. were exposed to the forensic examination and

shown to have been written in three groups in reverse order of date.

An important feature of the Crown's case consisted of Mr. C.'s

two statements. At the trial, the prosecution made it clear that Mr.

C. was unable to attend court to give oral evidence and sought leave

of the court to read the statements to the jury. The applicant's

counsel sought to exclude them on the ground that they were dangerous

in the inferences which a jury despite any direction might draw from

them, the conclusions they might face if they, in fact, considered them

and read into them a certain scenario.

The judge admitted Mr. C.'s statements considering, inter alia:

"The basis for their admission is to be found in the

Criminal Justice Act 1988. Section 23 of the Act provides

the basis for the admission and Section 26 governs the way

that the court ought to approach the question of admitting

such statements. It is conceded that the grounds required

under Section 23 are satisfied, namely that Mr. [C.] is by

reason of his bodily and mental condition unfit to attend.

It is, however, Section 26 to which my attention has been

drawn. By that section the statement shall not be given in

evidence without leave and this court should not give leave

unless it is of the opinion that the statement ought to be

admitted in the interests of justice. In considering

whether it is in those interests, it is the duty of this

court to have regard, in particular, to whether it is

likely to be possible to controvert the statement in the

absence of the author, that its admission will result in

unfairness to the accused. Finally, to any other

circumstances that appear to the court to be relevant.

... In particular, I am satisfied that in considering the

contents of the statement I must have particular regard to

the quality of the evidence which it contains. I must have

regard to whether or not, in the absence of any other

evidence, the case would have to be withdrawn from the jury

and I have to look at the circumstance in which it all came

to be made: I have to have regard to the fact that if I

admit it the defendant will not be able to cross-examine

and will not have opportunity to test the recollection of

the witness on particular points. In this case that

includes testing, if it were so to be thought appropriate,

when the witness has not himself ever mentioned any visit,

that there were, in fact, visits. [The applicant's counsel]

says that deprivation is of particular importance here.

All those matters determine the approach that I have taken

in this case. The prosecution have put before me evidence

from the general practitioner Dr. [L.] who, since January

1993, has had Mr. [C.] as his patient. I have also received

evidence from the consultant physician at the local

hospital to whom Mr. [C.] was referred in 1992 and 1993.

The extensive notes which are available have been referred

to and all care taken to ensure that the full picture is

brought out before me. The prosecution have further

adduced evidence from the [investigating officer] ... who

took the statement from Mr. [C.]. That is material, of

course, when I consider the quality of the evidence, since

it is alleged or asserted by the defence that at the

material time the witness was, or may have been, suffering

from such a degree of mental impairment that the contents

of these statements, even as they are at present are

fundamentally unreliable. To that end, the defence called

two witnesses. The first was a neighbour who related one

incident in 1992 or 1993. I am not entirely clear when,

but I take it in the defendant's favour that it was in 1992

which showed a lapse of memory on behalf of Mr. [C.].

Further, and more significantly Professor [P.], a man of

undoubted eminence in his field which is to do with the

psychology of age and the many problems associated with

ageing. [He] has not seen Mr. [C.] but gave an opinion

based on the notes and the other evidence which he was in

court to hear.

... The problems he diagnosed as a GP were not ones which

included loss of memory and loss of other faculties,

intellectual faculties of brain and mind which, had he seen

any signs, he would certainly have cause to be

investigated.

Doctor [L.] saw him in all, ... sixteen times over a period

of four months and said: 'I saw no reason to test his

memory. He seemed to have purely mechanical problems. His

memory seemed to be entirely reliable. He seemed to be a

sensible chap.' ...

Doctor [J.] saw him in April 1993 ... He found him able to

give a clear story as regards his problems though it was

aided by his niece who filled in one or two extra details.

...

[The investigating officer] spoke to Mr. [C.] on these two

occasions. He asked general questions and wrote down what

Mr. [C.] said to him. He found no difficulty in

understanding him. He described him as quietly spoken,

able to recall details. A man who did not falter in what

he said. The same was the position in July. ...

Professor [P.] ... says that this man has a well-

established neurological disorder, severe movement disorder

and now is showing signs of dementia. He believes that

these stem from damage which first began to appear.

Physical changes may be a better way of putting it than

damage, in February 1992 which has progressed with the

early signs of movement disorder ... He said that the one

memory lapse is of some considerable significance and that

overall in his experience which, as I say is distinguished

and extensive, there is likely to have been some effect on

intellect and memory.

Upon that basis [counsel for the applicant] asks me to say

that I cannot be satisfied that at the time this witness

made the statement and I refer particularly to the case of

Dempsey [98, Criminal Appeal Reports] where a similar

situation was encountered, there is material to say that

the quality of the evidence contained in it is compromised

and that I should therefore exercise the discretion against

the prosecution.

It seems to me that there is a quite coherent and

consistent picture of this man observed by those who were,

in fact, on the ground seeing him face-to-face over a

substantial period of time. I do not myself think that

helpful, as it very often is that in cases of this kind,

there is any substitute for such face-to-face observation.

The general practitioner struck me as a cautious and

careful practitioner. Doctor [J.] ... was also careful and

thorough and I am satisfied their observations are, indeed,

to be relied upon. I am satisfied that at the material

time, though Mr. [C.] was handicapped and though he was as

Doctor [J.] put it, 'at the lower end of the scale when one

looks at the degree to which people are affected by the

aging process', he nevertheless, was in a condition to make

a statement that he knew he was making and that was to the

best of his recollection at the time as accurate as he

could make it, in response to the matters he was asked to

consider. There is nothing, it seems to me, about the

quality of this evidence which gives rise to such concern

that would lead me to exercise the discretion I have to

exclude the reading of that statement. ...

As to the arguments I think I need to look at the nature of

them in order to deal with them. [Counsel for the

applicant] has said that the defendant is deprived of the

opportunity of cross-examining. Of course, that is true in

this case, as in every case, but, in particular, of putting

to Mr. [C.] the case which is the defendant's, to explain

not Mr. [C.]'s evidence but the evidence of the examination

of the documents.

I pause to interject that that shows that a series of

prescriptions were written beginning with the last date in

time and going backwards. The plain inference to be drawn

is they were concocted in that way to cover nonoccurring

visits. Mr. [C.] does not say that on a particular day the

doctor did or did not visit save for one instance and on

that he said two separate things which is to the

defendant's advantage.

The defendant has every opportunity to give uncontroverted

evidence, therefore, about the reason for writing out

prescriptions in that way on one day. About writing them

in reverse order. It seems to me that the defence, though

certainly not given the opportunity of raising matters with

Mr. [C.], may well in any event be in a better, are in a

better position than they would be if he were here to give

evidence. Had that matter been put to him, were he able to

deal with it, his answers might, in fact, be quite damaging

to the defendant. One does not know, but one can foresee

it happening, as one has seen it in other cases.

There is no particular direct evidence, as I say, on the

question of dates and the number of prescriptions differed

at any one time. All that seems to me to be matters which

are not, on analysis, harmful to the defendant. There is

therefore nothing that seems to me appropriate to take into

account as raising risks of unfairness for the defendant.

So for those reasons, I do not consider that there is

substance in the objections [counsel for the applicant]

makes along those lines.

In all the circumstances, therefore, it seems to me, that

I can properly exercise the discretion I have under Section

26, having had in mind the risks and, of course, the risk

of any injustice to allow the statement to be read, or

statements to be read."

Mr. C.'s statements were then read to the jury.

The applicant gave evidence at the trial. He explained that

Mr. C. lived by himself and he was not a well man. Apart from diabetes

the applicant said he had high blood pressure, heart problems, a blood

disorder, anaemia and asthma, and he often asked the applicant to come

at night. Whenever he did so the applicant said he went. He recorded

these visits, according to his account, on separate pieces of paper.

He also took claim forms with him, and he gave evidence about specific

occasions when he wrote prescriptions. He conceded in evidence that

the entry for 30 October 1992 appeared before the one for 28 October

1992, but he said he might have made a mistake when he was filling in

his records.

The applicant also gave evidence of particular visits to Mr. C.

during November 1992. He said that it was on a visit on 2 December

1992 that Mr. C. told him that he had lost all the prescriptions that

he had been given at the end of November 1992. The applicant said that

he had made out duplicates. That point was no doubt of consequence

since the prescriptions had apparently been given on various dates in

the previous ten days or so, and yet the prescriptions were being

replaced at the end of that period, when that period had expired for

which the tablets were presumably being prescribed. He said that he

also saw Mr. C. on various dates in the early part of December 1992,

and on 16 December 1992. Mr. C. told him that he had once again lost

all the earlier prescriptions, and so once again he made out duplicates

of the six prescription forms from information in his records.

According to the applicant, he did see Mr. C. on Boxing Day. On

that occasion he said he prescribed a pain killer for him. He carried

claim forms about with him and filled them in as required. He said

that was why some of the forms had earlier dates towards the end than

those at the beginning of the forms. He transferred the details onto

his own patients' records and left his receptionist to fill in other

details on the claim forms. Once that had been done he threw away the

pieces of paper on which he had originally recorded his visits.

On the applicant's behalf, two of his patients were called. Both

of them described the applicant as being a very good, caring,

considerate and reliable doctor.

At the end of the prosecution case, the charges in relation to

30 October and 16 December 1992 were dismissed by the judge on the

basis that even on the prosecution case it was clear that visits had

been made on those days. An application by counsel for the applicant

that the final charge relating to 26 December 1992 also be dismissed

was rejected. The basis of that application was that the only evidence

against the applicant in relation to this date came from Mr. C. who had

not given oral evidence and whose statements were inconsistent one with

the other on the question of whether he telephoned the applicant on

that day or not. The judge rejected the application on the grounds

that there was evidence from Mr. C. in respect of the final charge and

it was up to the jury what they made of the inconsistency in his

statements.

On 18 November 1994 the Grimsby Crown Court convicted the

applicant on ten counts of false accounting. On 19 December 1994 the

Court ordered him to perform 160 hours of community service on each

count concurrent and in addition to pay the sum of £5,000 towards costs

of the prosecution.

In July 1995 the applicant appealed to the Court of Appeal on the

basis, inter alia, that Mr. C's evidence should not have been read to

the jury.

On 13 July 1995 the Court of Appeal dismissed the applicant's

appeal on the grounds that the trial judge had approached the question

of Mr. C.'s evidence properly. The Court found inter alia:

"The Crown applied for the statements to be read and there

was a considerable amount of evidence given on the voir

dire about Mr. [C.]'s state of mind at the time when the

statements were made as well, of course, as evidence which

related to his being unfit to attend court. The relevant

cases were referred to the judge and he took account of

them in giving his ruling. The judge concluded that there

was nothing about the quality of the evidence which gave

such concern as would lead the court to exercise its

discretion to exclude the statements and accordingly he

admitted them.

There was a submission of no case to answer made in

relation to three counts, which succeeded in relation to

two of them, but not in relation to count 12 which ...

related to the visit which the [applicant] said he had made

to Mr. [C.] on Boxing Day. The judge ruled that that

matter should be left to the jury.

It is to be noted that his reference to Boxing Day in the

second statement did differ in one respect from his

reference to Boxing Day in the first statement, because

whereas in the first he said he did not contact the doctor

at all on that day, in the second he said that he did. But

in both ... he said that he did not see the doctor on that

day, in which case, if it were true, the doctor would not

have qualified in respect of that date for any fee for

visiting Mr. [C.].

What is said on behalf of the [applicant] is that the

judge's account of why Mr. [C.]'s evidence should be

admitted did not show a proper understanding of its

significance or potential significance.

The criticism made is that although it might be true to say

that the statements were not central to proof of dishonesty

they did make some reference to it which, in the context of

dishonesty, might have been prejudicial to the doctor. It

was also contended that the comment on the vital issue

'whether or not a visit was made, they are silent', is

subject to a qualification in relation to Boxing Day

because, as we have just pointed out, both statements said

that there was no visit made on Boxing Day, which was the

direct subject of count 12 in the indictment.

The prosecution did indicate in opening what use they

proposed to make of Mr. [C.]'s statements, and [counsel for

the applicant] submits that even if one only considers them

in relation to count 12 of the indictment, to the extent

that they facilitated proof of that count, they might have

told heavily against the [applicant] because if the jury

found him guilty upon that count, why, they might the more

readily find him guilty on the remaining counts.

The summing-up is criticised for the way in which the judge

handled Mr. [C.]'s statements. He said ... that the jury

had had no opportunity to see Mr. [C.] in the witness box,

adding: 'When you do see a witness you often get a better

idea of their reliability, their accuracy and their

honesty. Secondly you have not seen him tested under cross-

examination. Often you get an even clearer idea. ... So

when you consider his statement you cannot pay as much

attention to it as you would if it had been given from the

witness box. The weight you attach to it is, therefore,

less than would be the case in respect of evidence given by

a witness who was here.'

[Counsel for the applicant] criticises those references

because they were made without further reference to the

burden of proof, as to which the judge had already directed

the jury. He submits that references to weight may not be

expected to mean much to a jury unless it is related to the

question of burden of proof. It seems to us that the

significance the jury was invited to place upon the fact

that they did not have the opportunity of seeing Mr. [C.]

for themselves was self-evident. Not only were they unable

to assess him as a man, but also they were unable to see

him tested in cross-examination. The judge then read the

statements. It was plain that the evidence in relation to

Boxing Day depended on Mr. [C.] and that his evidence as to

that was not corroborated.

An important part of [counsel's for the applicant]

submissions about Mr. [C.] is the medical evidence because

the judge, as we have indicated, ruled in favour of the

Crown that notwithstanding that evidence the statements

should be admitted. The reason why his statements were

read to the jury was the same as the reason given by the

judge, to which we said we would refer, for Mr. [C.] not

being called as a witness. It ... reads as follows: 'In

January 1993 Mr. [C.] was suspected of having Parkinson's

disease. Following a variety of falls he was admitted to

Fairfield Lodge, an old people's home on March 25th, 1993

where he has remained until this day. It is now believed

that he suffers from a degenerative condition called pseudo

bipolar palsy rendering him unfit to travel.'

That is criticised, as we understand it, because it does

not go far enough or tell the jury enough about Mr. [C.]'s

medical condition. The purpose of it was, of course, to

explain why he was not in court. It was not intended to go

any further than that. No application was made to the

judge, on behalf of the [applicant], to entertain evidence

about Mr. [C.]'s medical condition at the time when he made

the statements which were read to the jury, or at the time

of the incidents referred to in those statements or at all.

The judge's conclusion about Mr. [C.]'s evidence not being

open to criticism, because in the judge's phrase it was 'as

accurate as he could make it', is made on the footing that

that took no sufficient account of the real objection to

his evidence, which was that his memory was defective at

the time, at any rate by the time that the statements were

taken from him, and that therefore they ought not to be

allowed to be read in circumstance where his evidence could

not be tested in cross-examination. Before reaching that

or any such conclusion the judge had, in the course of a

lengthy ruling, carefully reviewed the medical evidence.

...

After his review of the judge's ruling [counsel for the

applicant], by way of reply, took us to the evidence

actually given by Dr. [J.], Dr. [L.] and Professor [P.].

They made, whether in cross-examination or otherwise, from

time to time various acknowledgements that in some respects

Mr. [C.]'s memory might have been to some extent impaired.

But that may be more or less true of many, if not most,

witnesses, whether for physical or other reasons. The

question was whether, at the time when the statements were

taken from Mr. [C.], there was sufficient criticism

available to be made of them as would make it unfair for

them to be adduced in the absence of the man who had

originally given them. The judge, in the exercise of his

discretion, was entitled to conclude that the criticisms to

be made of Mr. [C.] and his memory were not such as made it

appropriate to exclude his evidence. The judge came to

that conclusion after an exhaustive enquiry into Mr. [C.]'s

condition, including his memory at the material time, and

it was a discretion with which, in the circumstances, this

court will not interfere. The discretion whether to admit

that evidence was, in our judgment, properly taken by the

judge after consideration not merely of the witnesses but,

as we have remarked, of the authorities relevant to the

introduction of statements in these circumstances. It is

said that Mr. [C.]'s evidence was prejudicial, but none of

it went directly to the allegation that the [applicant] had

claimed for visits that he never made except in so far as

it referred to the absence of a visit on Boxing Day, which

we have already mentioned. As [prosecution counsel] has

said in his written submissions, those statements did not

specify how frequently the [applicant] visited Mr. [C.]'s

house. They shed no light on how batches of prescriptions

were written in reverse order of dates, as each was torn

from the top of a pad of forms. It was necessary for the

Crown to adduce the [C.] evidence, not so much in proof of

dishonesty but in the light of the [applicant]'s largely

'no comment' police interviews, to describe the background

in which prescriptions were written and then claims were

made, whether legitimately or not.

The judge was right to reflect that if Mr. [C.] had been

called he might, when cross-examined, have remembered

matters adverse to the [applicant], although there was

evidence from Professor [P.] that Mr. [C.] was suffering

from severe episodic memory loss, which might affect the

reliability of his statements. There was the evidence

also, to which we have referred, from his general

practitioner and another physician, as well as from the

officer who took the statements, that Mr. [C.] was able to

communicate effectively, answer questions and give a clear

account of himself. With the decision to admit Mr. [C.]'s

evidence, accordingly, we decline to interfere.

In a one-line submission [counsel for the applicant], in

conclusion, contended that there was no sufficient evidence

to leave to the jury on count 12. It seems to us quite

plain that in both his statements Mr. [C.] was saying that

he received no visit on Boxing Day from the doctor. The

result of that was, as the judge declared when he ruled

upon the submission of no case, that it was a matter for

the jury whether, in the light of such explanations as the

[applicant] saw fit to give, they were satisfied that he

made no call upon that particular day in respect of which,

however, he had seen fit to make a claim."

The applicant was advised by a leading and junior counsel that

there was no basis upon which the case could be appealed to the House

of Lords.

COMPLAINTS

1 The applicant complains that his rights under Article 6 paras. 1

and 3 (d) of the Convention have been violated in that the evidence of

Mr. C. was not produced in his presence at a public hearing and,

moreover, he was given no adequate and proper opportunity to question

Mr. C. or challenge his evidence. Neither himself nor his

representative was present when Mr. C.'s statements were made.

The applicant claims that at his committal for trial, no

indication whatsoever had been given to him that Mr. C. would not be

attending the trial to give oral evidence. Had any such indication

been given, the applicant would have exercised his right to call on

Mr. C. to give oral evidence at the committal proceedings.

The applicant also criticises the trial judge's ruling on the

question of whether, at the time Mr. C.'s statements were taken, his

memory was defective and whether for that reason alone, the statements

ought not to be put before the jury.

2 The applicant also submits that he was given no opportunity to

consider Dr. L.'s report when it was prepared (5 July 1994) because it

was not disclosed to him until 7 November 1994, four months after it

had been written and only eight days before the trial began. He argues

that the unjustifiable delay by the prosecution in disclosing Dr. L.'s

report to him deprived him of considering that possibility.

THE LAW

1 The applicant complains that he did not have a fair trial as he

was convicted mainly on the basis of statements made by a witness who

did not attend his trial. The statements of the witness were read out

at the hearing and therefore the applicant was not given the

opportunity to examine or have examined the witness against him. He

invokes Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the

Convention which reads in so far as relevant:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair ... hearing ... by an

independent and impartial 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; ..."

As the guarantees in paragraph 3 of Article 6 (Art. 6-3) of the

Convention are specific aspects of the general concept of a fair trial

set forth in paragraph 1, the Commission will consider the complaint

under the two provisions taken together (cf. Eur Court HR, Asch v.

Austria judgment of 26 April 1991, Series A no. 203, p. 10, para. 25).

The Commission recalls that the admissibility of evidence is

primarily a matter for regulation by national law and that, as a rule,

it is for the national courts to assess the evidence before them, the

task of the Convention organs being to ascertain whether the

proceedings considered as a whole, including the way in which evidence

was taken, were fair (ibidem, p. 10, para. 26).

The Commission further recalls that, according to its own case-

law and that of the European Court of Human Rights, all evidence must

normally be produced in the presence of the accused at a public hearing

with a view to adversarial argument. This does not mean, however, that

the statement of a witness must always be made in court and in public

if it is to be admitted in evidence; in particular, this may prove

impossible in certain cases. The use of statements obtained at a pre-

trial stage is not in itself inconsistent with paragraphs 3 (d) and 1

of Article 6 (Art. 6) of the Convention, provided that the rights of

the defence have been respected. As a rule, these rights require that

the defendant be given an adequate and proper opportunity to challenge

and question a witness against him, either when he was making his

statements or at a later stage of the proceedings (ibidem, p. 10,

para. 27).

In the present case the Commission notes that before deciding to

admit the statements of Mr. C. into evidence the trial judge conducted

a detailed inquiry into Mr. C's condition, including his memory at the

material time. After hearing oral evidence as well as submissions by

both sides in the absence of the jury, the judge concluded that there

was nothing about the quality of the statements of Mr. C. which gave

such concern as would lead the court to exercise its discretion to

exclude them from evidence.

The Commission further observes that Mr. C.'s statements were not

the only evidence in the case to show that the applicant had claimed

for visits to Mr. C. which had not occurred. In particular, strong

support for the prosecution case was provided by the prescription forms

made out by the applicant for Mr. C. which were subjected to forensic

examination and which were shown to have been written in three groups

in reverse order of date. Moreover, as the trial judge noted, in the

absence of oral evidence from Mr. C., the applicant had the opportunity

to give uncontroverted evidence about the reason for preparing the

prescriptions in that form.

The Commission further notes that not only was counsel for the

applicant given a full opportunity to comment on the statements of

Mr. C. to the jury with a view to casting doubt on his credibility or

reliability, but in his summing-up the trial judge expressly warned

members of the jury that they should attach less weight to the

statements of Mr. C., which had not been tested in cross-examination,

than to the evidence of witnesses who had been heard orally before the

court.

Having regard to the above the Commission is of the opinion that

the admission in evidence of Mr. C.'s statements did not fail to

respect the rights of the defence and that the proceedings considered

as a whole were fair within the meaning of Article 6 (Art. 6) 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.

2 The applicant also claims that he was given no opportunity to

consider Dr. L.'s report when it was prepared (5 July 1994) because it

was not disclosed to him until 7 November 1994, four months after it

had been written and only eight days before the trial began. He argues

that the unjustifiable delay by the prosecution in disclosing Dr. L.'s

report to him deprived him of considering that possibility.

The Commission is not required to examine the question whether

the applicant exhausted domestic remedies in regard to this complaint

as it is inadmissible for other reasons. The Commission notes that

even if the report in question was drafted on 5 July 1994, the

applicant received it on 7 November 1994, which was a week before the

trial. In these circumstances, the applicant had a sufficient time to

prepare his defence at the trial in this point.

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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

H. C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission