VARISLI v. THE NETHERLANDS
Inadmissible
Elisabeth Palm;Gaukur Jörundsson
The applicant is a Turkish national, born in 1969, and, at the time of the introduction of the application, was detained in the Netherlands. He is represented before the Court by Mr G.P. Hamer, a lawyer practising in Amsterdam.  On 17 February 1993, the applicant, an employee of the Netherlands Railway Company, was arrested and taken into detention on suspicion of embezzlement and of having been involved in a robbery committed on 24 October 1992 at the Amsterdam Central Station. On 12 May 1993, following the applicant’s appeal against a decision of 25 March 1993 prolonging his pre-trail detention, the Court of Appeal (Gerechtshof) of Amsterdam ordered the applicant’s release from pre-trial detention. After an initial summons had been withdrawn, the applicant was summoned to appear on 15 December 1993 before the Regional Court (Arrondissementsrechtbank) of Amsterdam. The judges dealing with his case would be Ms O. as President, and Ms P. and Mr B. On 25 November 1993, the applicant filed an objection (bezwaar) against the summons. On 15 December 1993, after having deliberated, the Regional Court sitting in chambers (Arrondissementsrechtbank in Raadkamer), composed of Ms O., Ms P. and Mr B., rejected the objection. Subsequently and on the same day, the Regional Court commenced its examination of the charges brought against the applicant. As the composition of the Regional Court was the same as that of the Regional Court sitting in chambers that had rejected the objection against the summons, the defence challenged (wraking) the three judges. After having deliberated, three other judges of the Regional Court rejected the challenge. The Regional Court, in its original composition, then resumed its examination of the applicant’s case. In the course of 15 December 1993, the Regional Court took a short break in order to hand down its judgment in the criminal proceedings that had been brought against the coaccused R.M. Sitting in the same composition as in the applicant’s case, the Regional Court convicted R.M. of the robbery committed on 24 October 1992. After having become aware of this, the applicant challenged the Regional Court for a second time when later that day the court resumed its examination of his case. After having deliberated, three other judges of the Regional Court rejected the challenge. The Regional Court, in its initial composition, resumed its examination. It considered a request of the defence to take evidence from eleven witnesses, ordered that evidence should be taken from four of them and adjourned its further examination. On 9 March 1994, the Regional Court heard evidence from the four witnesses whose appearance it had ordered on 15 December 1993 and heard the parties’ final pleadings. In its judgment of 23 March 1994, the Regional Court convicted the applicant of robbery committed on 24 October 1992 at the Amsterdam Central Station, and participation in the commission of unlawful deprivation of liberty and embezzlement. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam. On 13 July 1994, the Court of Appeal started its examination of the applicant’s appeal. Further hearings were held on 9 November 1994 and 21 December 1995, in the course of which the Court of Appeal, inter alia, heard a number of witnesses. In its judgment of 4 January 1996, the Court of Appeal quashed the judgment of 23 March 1994. On the basis of the full rehearing on both facts and law that had taken place before it, the Court of Appeal convicted the applicant of participation in a robbery and embezzlement, acquitted him of the remaining charges and sentenced him to four years’ imprisonment. It rejected the argument advanced by the defence that, given the composition of the Regional Court, the case should be referred back to the Regional Court as the Regional Court that had convicted the applicant could not be considered as an impartial tribunal in that the same judges had rejected the applicant’s objection against the summons and had already formed a view on the matter in that they had already convicted a co-accused. The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad). By judgment of 6 May 1997, the Supreme Court rejected the applicant’s appeal in cassation. It rejected the applicant’s arguments in relation to the alleged partiality of the Regional Court.