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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> DOORSON v. THE NETHERLANDS - 20524/92 [1996] ECHR 14 (26 March 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/14.html
Cite as: 22 EHRR 330, [1996] ECHR 14, (1996) 22 EHRR 330
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In the case of Doorson v. the Netherlands (1),
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention") and the relevant provisions of Rules of Court B (2),
as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr J. De Meyer,
Mr N. Valticos,
Mr S.K. Martens,
Mr F. Bigi,
Mr A.B. Baka,
Mr L. Wildhaber,
Mr D. Gotchev,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 27 October 1995 and
20 February 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 54/1994/501/583. The first number is
the case's position on the list of cases referred to the Court
in the relevant year (second number). The last two numbers
indicate the case's position on the list of cases referred to the
Court since its creation and on the list of the corresponding
originating applications to the Commission.
2. Rules of Court B, which came into force on 2 October 1994,
apply to all cases concerning the States bound by Protocol No. 9
(P9).
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 8 December 1994,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated
in an application (no. 20524/92) against the Kingdom of the
Netherlands lodged with the Commission under Article 25 (art. 25)
by a Netherlands national, Mr Désiré Wilfried Doorson, on
27 June 1992.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the Netherlands
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision
as to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Article 6 paras. 1 and
3 (art. 6-1, art. 6-3) of the Convention.
2. In response to the enquiry made in accordance with
Rule 35 para. 3 (d) of Rules of Court B, the applicant stated
that he wished to take part in the proceedings and designated the
lawyer who would represent him (Rule 31). The lawyer was given
leave by the President to use the Dutch language (Rule 28
para. 3).
3. The Chamber to be constituted included ex officio
Mr S.K. Martens, the elected judge of Netherlands nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On
27 January 1995, in the presence of the Registrar, the President
drew by lot the names of the other seven members, namely
Mr Thór Vilhjálmsson, Mr J. De Meyer, Mr N. Valticos, Mr F. Bigi,
Mr A.B. Baka, Mr L. Wildhaber and Mr D. Gotchev (Article 43 in
fine of the Convention and Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5),
Mr Ryssdal, acting through the Registrar, consulted the Agent of
the Netherlands Government ("the Government"), the applicant's
lawyer and the Delegate of the Commission on the organisation of
the proceedings (Rules 39 para. 1 and 40). Pursuant to the order
made in consequence, the Registrar received the applicant's
memorial on 26 June 1995 and the Government's memorial on
27 July. The Delegate did not submit any observations in
writing.
5. On 25 August 1995 the Commission produced certain
documents from the file on the proceedings before it, as
requested by the Registrar on the President's instructions.
6. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 24 October 1995. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr K. de Vey Mestdagh, Ministry of Foreign Affairs, Agent,
Mrs I.M. Abels, Ministry of Justice,
Mrs M.J.T.M. Vijghen, Ministry of Justice, Advisers;
(b) for the Commission
Mr H.G. Schermers, Delegate;
(c) for the applicant
Mr G.P. Hamer, advocaat en procureur, Counsel.
The Court heard addresses by Mr Schermers, Mr Hamer and
Mr de Vey Mestdagh.
AS TO THE FACTS
I. Particular circumstances of the case
A. The police investigation
7. The applicant is a Netherlands citizen born in 1958 and
resident in Amsterdam.
8. In August 1987 the prosecuting authorities decided to
take action against the nuisance caused by drug trafficking in
Amsterdam. The police had compiled sets of photographs of
persons suspected of being drug dealers. These were shown to
about 150 drug addicts in order to collect statements from them.
However, following a similar action in 1986 when drug addicts who
had made statements to the police had been threatened, it turned
out that most of those to whom photographs were shown were only
prepared to make statements on condition that their identity was
not disclosed to the drug dealers whom they identified.
In each set of photographs shown there was one of a
person known to be innocent. Statements made by persons who
identified this photograph as that of a drug dealer were regarded
as unreliable and discounted.
9. In September 1987 the police received information from a
person referred to by the police under the code number GH.021/87
that the applicant was engaged in drug trafficking. The
applicant's identification photograph, which had been taken in
1985, was thereupon included by the police in the collection of
photographs shown to drug addicts.
10. A number of drug addicts subsequently stated to the
police that they recognised the applicant from his photograph and
that he had sold drugs. Six of these drug addicts remained
anonymous; they were referred to by the police under the code
names Y.05, Y.06, Y.13, Y.14, Y.15 and Y.16. The identity of two
others was disclosed, namely R. and N.
B. Proceedings before the Regional Court
11. On 12 April 1988 the applicant was arrested on suspicion
of having committed drug offences. It appears that he was
subsequently taken into detention on remand.
12. On 13 April 1988 the applicant was shown the photograph
made of him by the police and recognised it as a photograph of
himself.
13. A preliminary judicial investigation (gerechtelijk
vooronderzoek) was opened, during which the applicant's lawyer
submitted a request for an examination of the witnesses referred
to in the police report in the applicant's case. The
investigating judge (rechter-commissaris) accordingly ordered the
police to bring these witnesses before him on 30 May 1988 between
9.30 a.m. and 4 p.m. The applicant's lawyer was notified and
invited to attend the questioning of these witnesses before the
investigating judge.
14. On 30 May 1988 the applicant's lawyer arrived at the
investigating judge's chambers at 9.30 a.m. However, after an
hour and a half had elapsed and none of the witnesses had
appeared, he concluded that no questioning would take place. He
therefore left for another appointment. According to the lawyer
he did so with the consent of the investigating judge, Judge M.,
who had promised him that if the witnesses should turn up later
that day, they would not be heard but would be required to appear
for questioning at a later date so that he would be able to
attend.
After the lawyer had left, two of the eight witnesses
referred to in the police report turned up and were heard by the
investigating judge in the absence of the lawyer, witness Y.15
at about 11.15 a.m. and witness Y.16 at about 3 p.m.
From an official record of his findings (proces-verbaal
van bevindingen) drawn up by Judge M. on 17 June 1988, it appears
that Y.15 and Y.16 did not keep a promise to return for further
questioning on 3 June.
15. On 19 July 1988 the applicant appeared before the
Amsterdam Regional Court (arrondissementsrechtbank) on charges
of drug trafficking. At the prosecutor's request, the court
decided to adjourn its examination until 25 August 1988.
16. On 25 August 1988 the Regional Court resumed the hearing.
As the Regional Court was differently composed, it recommenced
its examination of the case. The applicant's lawyer requested
the court to refer the case back to the investigating judge for
an examination of the six anonymous witnesses and to hear the two
named witnesses R. and N. itself. The court refused the first
request but ordered the witnesses R. and N. to be brought before
it and adjourned the hearing until 4 October 1988.
The Regional Court also refused a request made by the
defence for the applicant's detention on remand to be terminated
or else suspended, being of the opinion that the applicant was
still under suspicion and that the reasons for which the
detention on remand had been ordered were still valid.
One of the judges sitting on this occasion was a certain
Judge Sm.
17. On 29 September 1988 the applicant's lawyer submitted to
the Regional Court a number of documents including the judgment
of the European Court of Human Rights in the case of
Unterpertinger v. Austria (judgment of 24 November 1986, Series A
no. 110) and the report of the European Commission of Human
Rights in the case of Kostovski v. the Netherlands (report of
12 May 1988, application no. 11454/85).
18. On 4 October 1988 the Regional Court resumed the
proceedings. In view of the fact that all three judges of the
Regional Court had been replaced, the court again recommenced its
examination. The defence again made a request to have the six
anonymous witnesses examined, which was refused.
The named witness N. appeared, R. did not. Both the
prosecution and the defence were given the opportunity to put
questions to N. Asked to identify the applicant, N. stated that
he did not recognise him. On being shown the applicant's
photograph, he said that he recognised it as that of a man who
had given him heroin when he was ill. However, towards the end
of his examination he stated that he was no longer quite sure of
recognising the man on the photograph; it might be that the man
who had given him the heroin only resembled that man. He further
alleged that when shown the photographs by the police, he had
only identified the applicant's photograph as that of a person
from whom he had bought drugs because at the time he had felt
very ill and had been afraid that the police might not give him
back the drugs which they had found in his possession.
The court adjourned its further examination until
29 November 1988, ordering the appearance of the witnesses R. and
N., and - on a motion of the defence - of L., an expert in the
field of problems related to drug trafficking and abuse. It
ordered the witness R. to be brought before it by the police.
19. On 29 November 1988 the Regional Court resumed its
hearing.
The expert L. appeared and was questioned before the
court. He doubted whether statements such as that made by the
drug addicts in the present case could be qualified as
voluntarily made. In any event such statements were in his
opinion highly unreliable because before photographs were shown
all kinds of promises were made so that when it came to
identifying individuals the persons concerned knew exactly what
was expected of them by the interrogator, whether police officer
or judge.
The witnesses N. and R. did not appear, the latter
despite the order that he be brought before the court by the
police. The defence thereupon withdrew its request to have R.
and N. examined before the court in order to avoid a further
adjournment of the hearing which would mean prolonging the
applicant's detention on remand.
The applicant's lawyer gave a critical analysis of the
statements made by the anonymous witnesses. He remarked moreover
that there were no valid reasons for preserving their anonymity
as it had not been demonstrated that the applicant had ever taken
reprisal action or was of a violent disposition.
20. On 13 December 1988 the Regional Court convicted the
applicant of drug trafficking and sentenced him to fifteen
months' imprisonment. In so doing it took into consideration the
fact that the applicant had previously been convicted of similar
offences.
C. Proceedings before the Court of Appeal
21. The applicant appealed to the Amsterdam Court of Appeal
(gerechtshof).
22. By letter of 6 November 1989 the applicant's lawyer
requested the procurator general (procureur-generaal) of the
Court of Appeal to summon the anonymous witnesses, the named
witnesses N. and R. and the expert L. for questioning at that
court's hearing, which was scheduled on 30 November.
The procurator general replied by letter of
22 November that he would summon N., R. and L. but not the
anonymous witnesses as he wished to preserve their anonymity.
If necessary, the Court of Appeal could decide at the hearing to
order these witnesses to be heard in camera by the investigating
judge.
23. On 24 November 1989 the applicant's lawyer wrote to the
president of the Court of Appeal requesting that the six
anonymous witnesses be summoned. In support of this request he
pointed out that neither his client nor he had ever had the
opportunity to question these witnesses. In this context he
referred to the judgment of the European Court of Human Rights
in the case of Kostovski v. the Netherlands, which had been
delivered four days earlier (judgment of 20 November 1989,
Series A no. 166).
24. The hearing of the Court of Appeal on 30 November 1989
was attended by the expert L. but none of the witnesses appeared.
The applicant therefore requested that the hearing be adjourned
so that they might be summoned for questioning in open court at
a later date or, in the alternative, by the investigating judge.
The Court of Appeal decided to verify the necessity of
maintaining the anonymity of the witnesses and referred the case
back to the investigating judge for this purpose. The Court of
Appeal also requested the investigating judge to examine the
witnesses - after deciding whether their anonymity should be
preserved or not - with respect to the facts imputed to the
applicant, and to offer his lawyer the opportunity both to attend
this examination in the room in which it would take place and to
put questions to the witnesses. The court also expressed the
wish that the series of photographs used by the police should,
if still available, be added to the file. Finally, it ordered
the appearance of the witnesses R. and N. and the expert L.
before it and adjourned the hearing sine die.
25. On 14 February 1990 the investigating judge heard the
witnesses Y.15 and Y.16 in the presence of the applicant's
lawyer. The investigating judge was Judge Sm. of the Amsterdam
Regional Court, who had taken part in the hearing on
25 August 1988 as a member of the trial court and in the
decisions taken on that occasion (see paragraph 16 above).
The lawyer was given the opportunity to put questions to
the witnesses but was not informed of their identity. The
identity of both witnesses was known to the investigating judge.
Both witnesses expressed the wish to remain anonymous and
not to appear in court. Witness Y.16 stated that he had in the
past suffered injuries at the hands of another drug dealer after
he had "talked" and feared similar reprisals from the applicant.
Witness Y.15 stated that he had in the past been threatened by
drug dealers if he were to talk. He further stated that the
applicant was aggressive. The investigating judge concluded from
the reasons given that both witnesses had sufficient reason to
wish to maintain their anonymity and not to appear in open court.
Y.15 and Y.16 were extensively questioned, both by the
investigating judge and by the applicant's lawyer. The latter
inquired, inter alia, into their reasons for testifying against
a dealer who they both said sold good quality drugs and asked
them whether they were being paid for giving evidence. Neither
Y.15 nor Y.16 refused to answer any of the questions put by the
applicant's lawyer. They both stated that they had bought drugs
from the applicant and that they had seen him selling drugs to
others. They again identified him from the police photograph and
gave descriptions of his appearance and dress.
Y.16 stated in addition that the police had rehearsed his
previous statement with him before taking him to see the
investigating judge.
The official record of the examination of Y.15 mentions
that the investigating judge, having come to the conclusion that
Y.15 had good reasons for not wishing to have his identity
revealed or to be heard in open court, placed him on oath; a
similar statement is lacking in the official record of the
examination of Y.16.
26. On 20 March 1990 Judge Sm. drew up an official record of
her findings containing information obtained from the police with
regard to witnesses Y.05, Y.06, Y.13 and Y.14. Y.06, who was a
foreign national, had been expelled from the Netherlands. Y.13's
place of residence was unknown. Y.05 and Y.14 had been seen but
attempts to trace them so as to bring them before the
investigating judge had not been successful. She added that the
sets of photographs could not be spared by the police; however,
should the Court of Appeal so order, the police could produce
them at the trial.
On the same day Judge Sm. returned the file to the Court
of Appeal.
27. After notice had been given to the defence that the
hearing of the Court of Appeal would resume on 10 May 1990, the
applicant's lawyer requested the procurator general by letter of
17 April 1990 to summon all six anonymous witnesses, Y.05, Y.06,
Y.13, Y.14, Y.15 and Y.16, to attend.
On 2 May 1990 the procurator general refused this request
on the ground that Y.15 and Y.16 had been heard for a second time
in the presence of the applicant's lawyer by the investigating
judge, who had been aware of their identity and had found that
they had valid reasons for their wish to remain anonymous. He
further found that in view of the findings of the investigating
judge it would serve no useful purpose to attempt to call the
other anonymous witnesses. It was also necessary to take into
account the desirability of bringing proceedings to an end as
expeditiously as possible (lites finiri oportet).
28. On 10 May 1990 the Court of Appeal recommenced its
examination, having changed composition.
The defence again asked the court to hear R. and N. and
the six anonymous witnesses. The court, however, further
considering the wish of the witnesses Y.15 and Y.16 to remain
anonymous, concluded that it had been decided on sufficiently
convincing grounds that these two witnesses had good reasons to
feel seriously threatened, in view, inter alia, of police records
contained in the case file from which it appeared that there was
a real possibility that drug dealers might threaten potential
witnesses. Accordingly, it did not order them to be summoned.
As to the witnesses Y.05, Y.06, Y.13 and Y.14, the court accepted
the findings of the investigating judge that it would be
pointless to summon them.
On the other hand, the Court of Appeal ordered that the
witnesses R. and N. be brought before it by force and adjourned
its hearing until 28 August 1990.
29. By letter of 15 August 1990 the defence again requested
the procurator general to produce the six anonymous witnesses.
By letter of 17 August 1990 they also asked him to call K., a
university lecturer in criminology who had done a great deal of
research on drug addicts in Amsterdam, and V., a former drug
addict who had personal experience of interrogation by the
police.
30. The procurator general refused both requests on
22 August 1990.
As regards the six anonymous witnesses, he referred to
his earlier decisions of 22 November 1989 and 2 May 1990 and
reiterated the finding of the Court of Appeal of 10 May 1990.
He based his decision not to call K. and V. on the fact
that K. had published a book which rendered his views
sufficiently clear and which the defence could quote at the
hearing if desired, and on the assumption that V. would not be
able to make statements about anything other than his own
experiences as a person suspected of drug offences. It was also
unnecessary to call either of them in view of the fact that the
expert L. would appear at the hearing on 28 August.
31. On 28 August 1990, the Court of Appeal resumed its
hearing.
The witness V., who was in prison, did not appear. The
defence withdrew its request to have him heard but maintained its
request that the Court of Appeal should hear the six anonymous
witnesses and the expert K.
Referring to its decision of 10 May, the Court of Appeal
refused to accede to the request of the defence to hear the six
anonymous witnesses. However, in view of the judgment of the
Supreme Court of 2 July 1990 (see paragraph 46 below), it decided
to refer the case back to the investigating judge, requesting her
to record her findings as to the reliability of the witnesses
Y.15 and Y.16, adding that if in order to appraise their
reliability the investigating judge found it necessary to hear
them again she should do so.
Although the expert K. was present at the hearing on
28 August 1990, having been convened by the defence, the Court
of Appeal decided not to hear him. The reason given was that as
an expert rather than a witness he could not be expected to
contribute to the elucidation of the facts of the case.
The witness N. was heard by the Court of Appeal in the
applicant's presence and the applicant's lawyer was given the
opportunity to question him. N. said that his statement to the
police had been untrue and that he did not in fact know the
applicant.
In pursuance of the court's order of 10 May 1990 that he
be brought by force, the named witness R. was present initially.
It appears that before he was heard, he asked the court usher who
was guarding him for permission to leave for a minute; this being
allowed him, he then disappeared and could not be found again.
The court subsequently ordered that he be brought before it by
force at its next hearing on 22 November 1990.
The Court of Appeal heard the expert L., who stated that
drug addicts often made unreliable statements concerning alleged
drug dealers to the police. He understood from drug addicts that
police officers made promises to them and that they made
statements only in order to be allowed to leave as soon as
possible. Such statements were, in his view, "somewhere between
the truth and a lie".
32. On 19 November 1990 the investigating judge, Judge Sm.,
drew up a record of her findings regarding the reliability of the
statements made to her by Y.15 and Y.16 on 14 February 1990.
She stated in this document that she could not remember
the faces of the two witnesses, but having re-read the records
of the interrogations could recall more or less what had
happened. She had the impression that both witnesses knew whom
they were talking about and had identified the applicant's
photograph without hesitation. With regard to the facts of which
the applicant stood accused, her impression had been that the
witnesses themselves believed their statements to be true. As
far as she remembered, both witnesses had answered all questions
readily and without hesitating although they had made a "somewhat
sleepy impression".
33. At the Court of Appeal's hearing on 22 November 1990, the
witness R. did not appear, the police having been unable to find
him. The court thereupon decided that a new order for R.'s
appearance would be pointless.
The procurator general brought forward a police officer,
I., who had been involved in the investigation and asked that he
be heard. The applicant's lawyer protested that the expert K.
had not been heard and that the defence had no opportunity to
prepare for the questioning of I.; to agree to hear I. now would
prejudice the rights of the defence. The Court of Appeal
nonetheless acceded to the request, and I. was heard concerning
the way in which the investigation had been conducted. I.
explained that from 1982 until 1988 he had been a member of a
police team set up to fight drug trafficking in the centre of
Amsterdam. Over the years that team had built up a good
understanding with many of the drug addicts living in that area;
making use of that relationship, they had asked them for
information on drug dealers. Their cooperation was wholly
voluntary. I. denied that the police made promises to drug
addicts or put pressure on them; nor were photographs shown to
addicts who had been arrested. In his assessment the statements
made by drug addicts were therefore highly reliable. Moreover,
action was only taken against alleged drug dealers if there were
at least eight statements incriminating them. He further
confirmed that it had happened in the past that convicted drug
dealers, after serving their sentence, had threatened and
assaulted drug addicts who had made incriminating statements
against them. Although he had never known the applicant to
resort to violence or threats, he did not rule out the
possibility that he might do so.
The defence challenged the reliability of the statements
made by the various witnesses, both named and anonymous, pointing
to what they considered to be inconsistencies among them. They
objected particularly to the admission as evidence of the
statements made by Y.15 and Y.16, on the grounds, inter alia,
that both were drug addicts and that the investigating judge's
record of her findings of 20 March 1990 did not contain a
statement that she believed that the witnesses had been telling
the truth. Relying on the Hauschildt v. Denmark judgment of the
European Court of Human Rights of 24 May 1989 (Series A no. 154),
they moreover expressed doubts as to the impartiality of the
investigating judge, Judge Sm., in that as a member of the
Regional Court she had taken part in the hearing of the Regional
Court of 25 August 1988 and in the decisions then made. They
protested against the refusal to hear K.
34. On 6 December 1990, the Court of Appeal quashed the
Regional Court's judgment of 13 December 1988, as it was adopting
a different approach with regard to the evidence.
It found the applicant guilty of the deliberate sale of
quantities of heroin and cocaine. This finding was based on the
following evidence:
(a) the fact, as appeared from the police records, that
upon information that the applicant was engaged in drug
trafficking his photograph was added to the collection of
photographs of persons suspected of that offence;
(b) the statements made before the investigating judge
on 14 February 1990 by Y.15 and Y.16 (see paragraph 25 above);
(c) the fact that on 13 April 1988 the applicant had
recognised himself on the police photograph (see paragraph 12
above);
(d) the statements made to the police by the named
witnesses N. and R. (see paragraph 10 above).
As regards the applicant's complaint that the majority of
the witnesses had not been heard in the presence of the applicant
or his lawyer, the court stated that it had based its conviction
on evidence given by the witnesses N., R., Y.15 and Y.16.
The latter two had been questioned by the investigating
judge in the presence of the applicant's lawyer. The Court of
Appeal added that it had used their statements "with the
necessary caution and circumspection". It held that these
statements could be used in evidence, in view, inter alia, of the
consistency between them and the testimony of the police officer
I. It also found that the reliability of the witnesses and the
well-foundedness of their wish to remain anonymous had been
sufficiently verified by the investigating judge.
The witness N. had been heard in open court both at first
instance and on appeal. Although he had retracted his earlier
statement to the police, that was the statement which the Court
of Appeal chose to believe in light of the testimony of the
police officer I.
Finally, the mere fact that the defence had not had the
opportunity to question R. did not mean that his statement could
not be used in evidence.
The Court of Appeal rejected the applicant's complaint
based on the alleged lack of impartiality of Judge Sm. It noted
that the hearing on 25 August 1988 had been summary; the Regional
Court had only considered the applicant's request to have the six
anonymous witnesses examined and his request for release. During
that hearing the Regional Court had not examined the substance
of the applicant's case. It did not appear, nor had it been
argued, that Judge Sm. had had any dealings with Y.15 and Y.16
before questioning them. An investigating judge in any case did
not have to provide the same safeguards as a member of a trial
court. Furthermore, no particular facts or circumstances had
been suggested or had come to light warranting the conclusion
that she had not been able to form an unprejudiced opinion as to
the reliability of the witnesses she had examined, or that she
had been biased in her examination of those witnesses.
The applicant was sentenced to fifteen months'
imprisonment. The time which he had spent in police custody and
detention on remand was deducted from the sentence.
D. Proceedings before the Supreme Court
35. The applicant filed an appeal on points of law to the
Supreme Court (Hoge Raad).
Counsel for the applicant submitted a statement of
grounds of appeal on 29 November 1991. The complaints put
forward, in so far as relevant, were the following.
In the first place, the Court of Appeal ought not to have
refused to hear the expert K. The fact that the court had chosen
to hear I. at the behest of the prosecution, which had brought
him forward at the last moment, meant that the applicant had not
had the possibility to obtain the attendance of a witness on his
behalf under the same conditions as a witness against him. In
addition, the court had failed to give sufficient reasons as to
why the statement of K. could not serve the purpose of
elucidating the facts, the court not having set out anything
either in the record of the hearing or in its judgment with
regard to the testimony that K. intended to give.
In the second place, the Court of Appeal ought not to
have relied on the statements made by Y.15 and Y.16. It had
ignored the wish of the defence to have them brought before the
trial court in order that that court might itself see how
unreliable they were and in order that the applicant might put
questions to them in person.
In the third place, the Court of Appeal ought not to have
taken account of the statement of R., whom the defence had not
had the opportunity to question; nor should it have decided after
he had been allowed to abscond that there was no further point
in attempting to obtain his attendance.
In the fourth place, given the fact that the prosecution
had brought forward the witness I. at the very last moment and
without the defence having had any opportunity to prepare itself,
the Court of Appeal should have either declined to hear him or
deferred his examination to a later date.
In the fifth place, the Court of Appeal ought not to have
relied on witness statements taken by an investigating judge
(Judge Sm.) who had previously, as a member of a trial court and
on the basis of the evidence then contained in the case file
(which included statements of all eight witnesses), taken part
in a decision to prolong the applicant's detention on remand.
Judge Sm. had, in his view, failed to preserve an appearance of
impartiality.
36. In accordance with the advisory opinion of the advocate
general (advocaat-generaal), Mr Fokkens, the applicant's appeal
was rejected by the Supreme Court on 24 March 1992.
As to the first complaint, the Supreme Court held that
the Court of Appeal had given sufficient reasons for not hearing
K., especially since the defence had not indicated in what way
his statement might be relevant to any decision regarding the
charges proffered. Nor had the applicant been denied a "fair
hearing" in this respect; it made no difference that, in spite
of the protests made by the defence, the Court of Appeal had
given the prosecution the opportunity to have a witness heard
without previously announcing its intention to bring him forward.
As to the second complaint, it was held that the mere
fact that a defendant in a criminal case was not able to question
an anonymous witness himself but had to do so through his counsel
did not constitute a violation of the right to a "fair trial",
guaranteed by Article 6 para. 1 (art. 6-1) of the Convention, or
of the right protected by Article 6 para. 3 (d) (art. 6-3-d).
As to the third complaint, the Supreme Court found that
the reasoning on which the Court of Appeal had based its decision
to make no further attempts to have R. brought before it was not
unintelligible; in any case, it could not assess the validity of
that reasoning since this was mainly a question of appreciation
of facts. In view of the fact that it had proved pointless to
repeat attempts to have R. brought before the Court of Appeal by
force and of the fact that his statement was sufficiently
corroborated by other evidence, in particular the statement made
by N. to the police, the Court of Appeal had been entitled to use
his statement in evidence.
As to the fourth complaint, it was held that the Court of
Appeal had not been bound to construe the protests put forward
by the defence either as a request for an adjournment or as a
defence plea requiring a reasoned decision.
As to the fifth complaint, the Supreme Court concurred
with the Court of Appeal that there was no reason to assume that
Judge Sm. had lacked the required impartiality or that the
applicant could have had any cause for so fearing. It continued:
"The mere fact that a judge who has been involved in a
decision at first instance refusing requests made by the
defence to adjourn the hearing and to refer the case back
to the investigating judge for the hearing of anonymous
witnesses and in decisions refusing requests for the
termination or suspension of detention on remand, has
afterwards, pursuant to an order of the Court of Appeal,
heard the said witnesses and given an opinion on the
reliability of their testimony and on their reasons for
remaining anonymous as a rule does not imply that on
appeal the requirement of trial by an `impartial
tribunal' in the sense of Article 6 para. 1 (art. 6-1)
has not been met. It does not appear from the case file
that there are any special circumstances which in the
present case should lead to a different conclusion."
II. Relevant domestic law and practice
37. Except for the differences noted below (see paragraphs 45
and following), relevant domestic law and practice at the time
of the criminal proceedings complained of were as set out in the
Court's above-mentioned Kostovski judgment of 20 November 1989.
Reference is therefore made to that judgment, especially
pp. 13-17, paras. 22-32.
In so far as legal provisions relating to detention on
remand are of relevance, reference is made to the Court's Nortier
v. the Netherlands judgment of 24 August 1993 (Series A no. 267),
pp. 13-14, para. 27.
A. The Code of Criminal Procedure (Wetboek van
Strafvordering - CCP)
38. The public prosecutor has the power to call witnesses and
experts to the hearing (Article 260 CCP). In his summons to the
accused he gives a list of the witnesses and experts to be
brought forward by the prosecution. If the accused wishes to
call witnesses, he can - according to Article 263 - submit a
request to the public prosecutor no later than three days before
the court hearing to summon a witness before the court. As a
rule, the public prosecutor should summon the witness, but -
according to Article 263 para. 4 - he may refuse to do so if it
is to be reasonably assumed that no prejudice to the rights of
the defence will be caused if the witness is not heard in open
court ("Indien redelijkerwijs moet worden aangenomen, dat de
verdachte niet in zijn verdediging kan worden geschaad wanneer
een door hem opgegeven getuige ... niet ter terechtzitting wordt
gehoord"). He has to give a reasoned decision in writing and
must at the same time inform the defence of its right under
Article 280 para. 3 (see paragraph 40 below) to renew the request
to the trial court at the hearing.
39. At the opening of the trial hearing the prosecutor hands
to the court a list of all the witnesses called, which is then
read out by the registrar (griffier) (Article 280 para. 2).
40. If the public prosecutor has failed to summon a witness
at the request of the accused, or declined to do so, the defence
may ask the court to have that witness summoned (Article 280
para. 3). The court so orders, unless it finds that the
non-appearance of this witness cannot reasonably be considered
prejudicial to the rights of the defence ("De rechtbank beveelt
dat de ... getuige ... zal worden gedagvaard of schriftelijk
opgeroepen, tenzij zij ... van oordeel is dat door het achterwege
blijven daarvan de verdachte redelijkerwijs niet in zijn
verdediging kan worden geschaad" - Article 280 para. 4).
41. A request by the defence to hear a witness who has not
been placed on the list of witnesses, who has not been convened
to attend the trial and whose summons the defence has not sought
in accordance with Article 280 falls under Article 315 CCP (see
paragraph 42 below). It appears from the judgment of
23 December 1986 by the Supreme Court that the trial court needs
only accede to a request of this nature if it finds it necessary
to do so.
42. Under Article 315 CCP the trial court has the power to
order of its own accord the production of evidence, including the
summoning of witnesses whom it has not yet heard.
43. If it finds that there is occasion to do so, the trial
court may order that a witness be brought to its hearing by the
police (Articles 282 para. 1 and 315 CCP).
44. If at the trial the trial court finds it necessary to
have any factual question examined by the investigating judge,
it must suspend the hearing and refer the question to the
investigating judge along with the case file. The investigation
carried out by the investigating judge in these cases is deemed
to be a preliminary judicial investigation and is subject to the
same rules (Article 316 CCP).
45. Appeal proceedings against the conviction or sentence at
first instance involve a complete rehearing of the case. Both
the prosecution and the defence may ask for witnesses already
heard at first instance to be heard again; they may also produce
new evidence and request the hearing of witnesses not heard at
first instance (Article 414 CCP). The defence enjoys the same
rights as it does at first instance (Article 415 CCP).
B. Case-law relating to anonymous witnesses
46. In its judgment of 2 July 1990, Nederlandse
Jurisprudentie (Netherlands Law Reports, "NJ") 1990, no. 692, the
Supreme Court considered that it had to be assumed in light of
the European Court's Kostovski judgment that the use of
statements by anonymous witnesses was subject to stricter
requirements than those defined in its case-law until then. It
defined these stricter requirements in the following rule: such
a statement must have been taken down by a judge who (a) is aware
of the identity of the witness, and (b) has expressed, in the
official record of the hearing of such a witness, his reasoned
opinion as to the reliability of the witness and as to the
reasons for the wish of the witness to remain anonymous, and (c)
has provided the defence with some opportunity to put questions
or have questions put to the witness. This rule is subject to
exceptions; thus, according to the same judgment, the statement
of an anonymous witness may be used in evidence if (a) the
defence have not at any stage of the proceedings asked to be
allowed to question the witness concerned, and (b) the conviction
is based to a significant extent on other evidence not derived
from anonymous sources, and (c) the trial court makes it clear
that it has made use of the statement of the anonymous witness
with caution and circumspection.
C. Law reform
47. The Act of 11 November 1993, Staatsblad (Official
Gazette) 1993, no. 603, has added to the CCP a number of detailed
provisions relating to the "protection of witnesses". It entered
into force on 1 February 1994. The additions include the
following.
Article 226a now provides that the identity of a witness
may remain secret if there is reason to believe that the
disclosure of his identity may threaten his life, health, safety,
family life or socio-economic existence and if the witness has
made it clear that he does not wish to make any statement because
of this. The decision is made by the investigating judge, who
must first hear the prosecution, the defence and the witness
himself.
An appeal against the decision of the investigating judge
lies to the trial court (Article 226b).
The investigating judge may order that a threatened
witness be heard in the absence of the accused, or of counsel,
or of both, so as not to disclose the identity of the threatened
witness; in that event, the prosecution authorities may not
attend the questioning of the witness either. The investigating
judge must then allow the defence to put questions of its own to
the witness, either through the use of telecommunication or in
writing (Article 226d).
Article 264 now lays down that the prosecution may refuse
to summon a threatened witness.
If the trial court has ordered that a witness be heard
and that witness turns out to be under threat, he must be heard
in camera by the investigating judge (Article 280 para. 5).
The statement of an anonymous witness taken in accordance
with the above-mentioned provisions may only be used in evidence
against a person accused of crimes in respect of which his
detention on remand is permitted (Article 342 para. 2 (b)).
A new paragraph has been added to Article 344 to the
effect that a statement of a person whose identity is not
apparent may only be used in evidence if the conviction is based
to a significant degree on other evidence and if the defence has
not at any time during the trial sought to question that person
or have him questioned.
PROCEEDINGS BEFORE THE COMMISSION
48. Mr Doorson applied to the Commission on 27 June 1992. He
claimed that he had been a victim of violations of Article 6
paras. 1 and 3 (d) (art. 6-1, art. 6-3-d) of the Convention in
that he had been convicted on the evidence of witnesses who had
not been heard in his presence and whom he had not had the
opportunity to question, in that the Court of Appeal had accepted
the evidence of the anonymous witnesses on the basis of the
statement of an investigating judge who at a previous stage of
the proceedings had participated in a decision to prolong his
detention on remand, and in that the Court of Appeal had refused
to hear an expert brought forward by the defence but had agreed
to hear an expert brought forward by the prosecution. He also
alleged a lack of respect for his private life, in violation of
Article 8 (art. 8) of the Convention, in that his photograph had
been shown to third parties without any basis in law.
49. On 29 November 1993 the Commission declared the
application (no. 20524/92) admissible in so far as it concerned
Article 6 paras. 1 and 3 (d) (art. 6-1, art. 6-3-d) and
inadmissible for the remainder.
In its report of 11 October 1994 (Article 31) (art. 31),
it expressed the opinion, by fifteen votes to twelve, that there
had been no violation of those provisions (art. 6-1, art. 6-3-d).
The full text of the Commission's opinion and of the dissenting
opinion contained in the report is reproduced as an annex to this
judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the
printed version of this judgment (in Reports of Judgments and
Decisions - 1996-II), but a copy of the Commission's report is
obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
50. The applicant concluded his memorial by expressing the
opinion that the Commission ought to have declared his complaint
to be well-founded.
In their memorial, the Government expressed the opinion
that there had been no violation of Article 6 paras. 1 and 3 (d)
(art. 6-1, art. 6-3-d) of the Convention.
AS TO THE LAW
I. SCOPE OF THE CASE BEFORE THE COURT
51. In his memorial and again at the hearing, the applicant
complained that of the approximately 150 statements of persons
to whom the photographs of suspected drug dealers were shown,
only eight were included in the case file (see paragraphs 8 and
10 above); the other 142 were not made available to the defence.
He also raised various claims about the use made of the
statements of the anonymous witnesses Y.05, Y.06, Y.13 and Y.14,
about the procedure for confronting witnesses and informants with
photographs of suspected drug dealers and about the fact
(admitted by Y.16 himself - see paragraph 25 above) that the
police had rehearsed his statement with him while taking him to
see the investigating judge.
These are new complaints. They were not raised as such
in the proceedings before the Commission; nor were they
encompassed by the Commission's decision on admissibility. They
go beyond mere legal submissions put forward in support of the
complaints declared admissible. That being so, the Court has no
jurisdiction to entertain them (see the Erkner and Hofauer
v. Austria judgment of 23 April 1987, Series A no. 117, p. 61,
para. 63).
52. Before the Commission the applicant alleged that his case
had not been decided by an "impartial tribunal". He referred to
the fact that the anonymous witnesses Y.15 and Y.16 had been
heard by an investigating judge of the Regional Court, Judge Sm.,
who had also recorded her finding that Y.15 and Y.16 believed
their statements to be the truth (see paragraphs 25 and 32
above). The Court of Appeal had based its opinion that these
witnesses were reliable on that finding (see paragraph 34 above).
Judge Sm. had previously, as a member of the trial court hearing
the case at first instance, participated in a decision to prolong
the applicant's detention on remand (see paragraph 16 above).
None of the parties referred to this issue in the
proceedings before the Court, whether in their memorials or at
the hearing. The Court sees no reason to address the matter of
its own motion.
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 TAKEN TOGETHER
WITH ARTICLE 6 PARA. 3 (d) (art. 6-1+art. 6-3-d) OF THE
CONVENTION
53. The applicant alleged that the taking of, hearing of and
reliance on evidence from certain witnesses during the criminal
proceedings against him infringed the rights of the defence, in
violation of Article 6 paras. 1 and 3 (d) (art. 6-1, art. 6-3-d)
of the Convention, which provide as follows:
"1. In the determination ... of any criminal charge
against him, everyone is entitled to a fair ... hearing
... by an ... 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;
..."
Neither the Commission nor the Government endorsed this
view.
A. Arguments before the Court
1. The applicant
54. The applicant claimed in the first place that in
obtaining the statements of the anonymous witnesses Y.15 and Y.16
the rights of the defence had been infringed to such an extent
that the reliance on those statements by the Amsterdam Court of
Appeal was incompatible with the standards of a "fair" trial.
He emphasised, first of all, that during the
first-instance proceedings Y.15 and Y.16 were questioned by an
investigating judge, Judge M., in the absence of his counsel.
He claimed that this was in violation of an agreement between his
counsel and Judge M. (see paragraph 14 above).
Although he conceded that in the course of the appeal
proceedings Y.15 and Y.16 had been questioned by Investigating
Judge Sm. in the presence of his counsel and had identified him
from a photograph taken several years previously (see
paragraph 25 above), that was not a proper substitute for a
confrontation with him in person. Not knowing the identity of
the persons concerned, he could not himself cross-examine them
to test their credibility. Nor could the possibility of mistakes
be ruled out. It would, in his submission, have been possible
to examine the witnesses in his presence, protecting them, if
need be, by the use of disguise, voice-distorting equipment or
a two-way mirror.
In fact, he questioned the need for maintaining the
anonymity of Y.15 and Y.16 at all. Both had stated before the
investigating judge that they feared reprisals (see paragraph 25
above) but there was nothing to suggest that they were ever
subjected to, or for that matter threatened with, violence at the
hands of the applicant. Moreover, the basis of the investigating
judge's assessment of the need for anonymity was not made clear
to the defence.
He further submitted that it was inappropriate that the
trial court should have accepted unquestioningly the assessment
of the reliability of the evidence given by Y.15 and Y.16 to the
investigating judge (see paragraphs 32 and 34 above). In this
connection the applicant pointed out that both Y.15 and Y.16 were
drug addicts. Y.16, on his own admission, had been an addict for
no less than seventeen years. Statements by drug addicts were
notoriously unreliable, as appeared from, inter alia, the
statement made by the expert witness L. (see paragraph 31 above).
The investigating judge had not herself carried out the complete
investigation of the case, so that she could not assess the
credibility of the witnesses in the light of the complete case
file; furthermore, an important safeguard - namely, a complete
assessment by the full trial court, which consisted of three
judges of the Court of Appeal - had been lacking.
55. In the second place, the applicant complained about the
reliance on the evidence of the named witness R. Although R. had
been brought to the hearing of the Court of Appeal for
questioning, he had - in the applicant's submission - been
allowed to abscond under circumstances which engaged the Court
of Appeal's responsibility; that court had afterwards abandoned
its attempts to have R. brought before it anew and nonetheless
relied on the statement which he had made to the police (see
paragraphs 31, 33 and 34 above). Since he - the applicant - had
not been able to cross-examine R., his statement to the police
should not have been admitted as evidence.
56. In the third place, the applicant alleged that the Court
of Appeal had been wrong to rely on the statement made by the
named witness N. to the police. N. had stated on oath to both
the Regional Court during the first-instance proceedings and the
Court of Appeal that his statement to the police had been untrue
(see paragraphs 18 and 31 above). In the applicant's submission,
this meant at the very least that his statement to the police was
suspect.
57. Finally, he submitted that the Court of Appeal should not
have refused to hear a defence witness, the expert K. whom he had
brought along to the court's hearing, while agreeing to hear the
evidence of a prosecution witness, the police officer I. (see
paragraphs 31 and 33 above).
2. The Commission
58. The Commission pointed out that the named witness N. had
been heard by the trial courts both at first instance and on
appeal (see paragraphs 18 and 31 above). Both the prosecution
and the defence had had the opportunity to put questions to him
and the courts had been able to form an opinion as to the value
of his statements. In the circumstances, therefore, and also
given the nature of N.'s statement to the police - he had
identified the applicant's photograph as that of a drug dealer -
use of that statement in evidence could not affect the fairness
of the proceedings.
59. Both the Regional Court and the Court of Appeal had made
repeated attempts to hear the named witness R. in open court.
These, however, had proved unsuccessful (see paragraphs 31 and
33 above). It could not therefore, in the Commission's view, be
considered unfair to rely on R.'s statement to the police to some
extent. At the Court's hearing, the Commission's Delegate
expressed the opinion that although R.'s statement would not be
sufficient on its own to justify a conviction, it could be used
to corroborate other evidence.
60. With regard to the anonymous witnesses Y.15 and Y.16, the
Commission observed that their identity was known to the
investigating judge (see paragraph 25 above). There was, in its
view, no reason to doubt that their wish to remain anonymous was
well-founded. In addition, they had been heard in the presence
of the applicant's counsel who had had the opportunity to put
questions of his own (see paragraph 25 above). While it would
have been preferable to confront them with the applicant in
person, there were, in its opinion, valid reasons not to do so.
Moreover, various persons had independently identified the
applicant from a photograph and the value of this and other
evidence was extensively discussed in adversarial proceedings.
Viewed as a whole, therefore, the proceedings had not been
unfair.
61. Finally, it had been within the discretion of the Court
of Appeal to decide whether or not hearing the defence witness
K. could contribute to the proper administration of justice (see
paragraph 31 above).
3. The Government
62. The Government contended that it had not been necessary
to hear the witnesses Y.15 and Y.16 in open court as the hearing
of witnesses by the investigating judge offered sufficient
safeguards. The involvement of the investigating judge afforded
the suspect the guarantee that the investigation would be
impartial and objective. It was the duty of the investigating
judge to collect not only evidence that tended to incriminate the
suspect, but also evidence that might disculpate him. In
addition, the investigating judge had the power to hear witnesses
on oath, and the prosecution and the defence had the right to
attend and ask questions of their own or to submit questions in
writing (see paragraph 37 above and the Court's Kostovski
judgment cited therein, p. 14, para. 23).
They noted in addition that the applicant's counsel had
twice had the opportunity to question the witnesses Y.15 and Y.16
in the presence of an investigating judge. The first such
opportunity was on 30 May 1988, during the preliminary judicial
investigation; on that occasion the lawyer had left, for reasons
of his own, before these witnesses appeared (see paragraph 14
above). The second was during the appeal proceedings, on
14 February 1990 (see paragraph 25 above). On that occasion
counsel had been present and had in fact put direct questions to
the witnesses.
Given that counsel had in fact been able to question Y.15
and Y.16 face to face, the lack of any confrontation with the
applicant in person had not materially restricted the ability of
the defence to cast doubt on their credibility or that of their
statements or to counter their statements as it saw fit.
Moreover, the investigating judge, Judge Sm., had been
aware of the identity of the anonymous witnesses. She had also
examined their reasons for wishing to remain anonymous - namely,
fear of reprisals - and considered them well-founded. Her
decision had been upheld by the Court of Appeal, which had found
it established that potential witnesses in drug-using circles
were in fact frequently threatened by drug dealers (see
paragraph 28 above).
The Court of Appeal had been entitled to consider the
reliability of the statements of Y.15 and Y.16 sufficiently
corroborated by the findings of the investigating judge, as
officially recorded on 19 November 1990, and by the statement in
open court of the police officer I. that the witnesses in the
case had been under no constraint. In any case, the Court of
Appeal had noted in its judgment that it had made use of the
anonymous statements "with the necessary caution and
circumspection" (see paragraph 34 above).
They noted generally that the procedure followed had been
in accordance with the case-law of the Netherlands Supreme Court
in which rules had been laid down for the implementation in
domestic law of the Court's judgment in the Kostovski case (see
paragraph 46 above).
63. It had likewise been within the discretion of the Court
of Appeal to make use of the statement which the named witness
N. had made to the police, rather than the statements which he
had later made before the Regional Court and the Court of Appeal
retracting it. The defence had sufficient opportunity to
cross-examine N. and to challenge his evidence in open court (see
paragraphs 18 and 31 above). In any case, the selection and
assessment of evidence was the responsibility of the national
courts.
64. Given the freedom of the trial courts to assess the
available evidence, the Court of Appeal had also been entitled
to make use of the statement made by the named witness R. to the
police. In this connection they drew attention to the fact that
several attempts had been made to bring him before the court, all
of which had proved unsuccessful (see paragraphs 28 and 31
above).
65. In the view of the Government no issue could be taken
with the refusal of the Court of Appeal to hear the expert
witness K. (see paragraph 31 above). The defence had supplied
no information from which it appeared that his evidence would
have differed from, or added to, that of the expert L., who had
already been heard.
B. The Court's assessment
1. The Court's general approach
66. As the requirements of Article 6 para. 3 (art. 6-3) are
to be seen as particular aspects of the right to a fair trial
guaranteed by Article 6 para. 1 (art. 6-1), the Court will
examine the complaints under Article 6 paras. 1 and 3 (d)
(art. 6-1+art. 6-3-d) taken together (see, among many other
authorities, the Delta v. France judgment of 19 December 1990,
Series A no. 191-A, p. 15, para. 34).
67. The Court reiterates that the admissibility of evidence
is primarily a matter for regulation by national law and as a
general rule it is for the national courts to assess the evidence
before them. The Court's task under the Convention is not to
give a ruling as to whether statements of witnesses were properly
admitted as evidence, but rather to ascertain whether the
proceedings as a whole, including the way in which evidence was
taken, were fair (see, among other authorities, the
above-mentioned Kostovski judgment, p. 19, para. 39).
2. The anonymous witnesses Y.15 and Y.16
68. The Court agrees with the Commission's Delegate that no
issue arises in relation to the fact that Investigating Judge M.
heard Y.15 and Y.16 in the absence of the applicant's counsel in
the course of the preliminary judicial investigation, since in
the course of the subsequent appeal proceedings these two
witnesses were heard in counsel's presence (see paragraph 25
above).
69. As the Court has held on previous occasions, the
Convention does not preclude reliance, at the investigation
stage, on sources such as anonymous informants. The subsequent
use of their statements by the trial court to found a conviction
is however capable of raising issues under the Convention (see
the above-mentioned Kostovski judgment, p. 21, para. 44, and the
Windisch v. Austria judgment of 27 September 1990, Series A
no. 186, p. 11, para. 30).
As was already implicit in paragraphs 42 and 43 of the
above-mentioned Kostovski judgment (loc. cit., pp. 20-21), such
use is not under all circumstances incompatible with the
Convention.
70. It is true that Article 6 (art. 6) does not explicitly
require the interests of witnesses in general, and those of
victims called upon to testify in particular, to be taken into
consideration. However, their life, liberty or security of
person may be at stake, as may interests coming generally within
the ambit of Article 8 (art. 8) of the Convention. Such
interests of witnesses and victims are in principle protected by
other, substantive provisions of the Convention, which imply that
Contracting States should organise their criminal proceedings in
such a way that those interests are not unjustifiably imperilled.
Against this background, principles of fair trial also require
that in appropriate cases the interests of the defence are
balanced against those of witnesses or victims called upon to
testify.
71. As the Amsterdam Court of Appeal made clear, its decision
not to disclose the identity of Y.15 and Y.16 to the defence was
inspired by the need, as assessed by it, to obtain evidence from
them while at the same time protecting them against the
possibility of reprisals by the applicant (see paragraph 28
above). This is certainly a relevant reason to allow them
anonymity. It remains to be seen whether it was sufficient.
Although, as the applicant has stated, there has been no
suggestion that Y.15 and Y.16 were ever threatened by the
applicant himself, the decision to maintain their anonymity
cannot be regarded as unreasonable per se. Regard must be had
to the fact, as established by the domestic courts and not
contested by the applicant, that drug dealers frequently resorted
to threats or actual violence against persons who gave evidence
against them (see paragraph 28 above). Furthermore, the
statements made by the witnesses concerned to the investigating
judge show that one of them had apparently on a previous occasion
suffered violence at the hands of a drug dealer against whom he
had testified, while the other had been threatened (see
paragraph 25 above).
In sum, there was sufficient reason for maintaining the
anonymity of Y.15 and Y.16.
72. The maintenance of the anonymity of the witnesses Y.15
and Y.16 presented the defence with difficulties which criminal
proceedings should not normally involve. Nevertheless, no
violation of Article 6 para. 1 taken together with Article 6
para. 3 (d) (art. 6-1+art. 6-3-d) of the Convention can be found
if it is established that the handicaps under which the defence
laboured were sufficiently counterbalanced by the procedures
followed by the judicial authorities (see, mutatis mutandis, the
above-mentioned Kostovski judgment, p. 21, para. 43).
73. In the instant case the anonymous witnesses were
questioned at the appeals stage in the presence of counsel by an
investigating judge who was aware of their identity (see
paragraph 25 above), even if the defence was not. She noted, in
the official record of her findings dated 19 November 1990,
circumstances on the basis of which the Court of Appeal was able
to draw conclusions as to the reliability of their evidence (see
paragraphs 32 and 34 above). In this respect the present case
is to be distinguished from that of Kostovski (loc. cit., p. 21,
para. 43). Counsel was not only present, but he was put in a
position to ask the witnesses whatever questions he considered
to be in the interests of the defence except in so far as they
might lead to the disclosure of their identity, and these
questions were all answered (see paragraph 25 above). In this
respect also the present case differs from that of Kostovski
(loc. cit., p. 20, para. 42).
74. While it would clearly have been preferable for the
applicant to have attended the questioning of the witnesses, the
Court considers, on balance, that the Amsterdam Court of Appeal
was entitled to consider that the interests of the applicant were
in this respect outweighed by the need to ensure the safety of
the witnesses. More generally, the Convention does not preclude
identification - for the purposes of Article 6 para. 3 (d)
(art. 6-3-d) - of an accused with his counsel (see, mutatis
mutandis, the Kamasinski v. Austria judgment of 19 December 1989,
Series A no. 168, p. 40, para. 91).
75. In addition, although it is normally desirable that
witnesses should identify a person suspected of serious crimes
in person if there is any doubt about his identity, it should be
noted in the present case that Y.15 and Y.16 identified the
applicant from a photograph which he himself had acknowledged to
be of himself (see paragraph 12 above); moreover, both gave
descriptions of his appearance and dress (see paragraph 25
above).
It follows from the above considerations that in the
circumstances the "counterbalancing" procedure followed by the
judicial authorities in obtaining the evidence of witnesses Y.15
and Y.16 must be considered sufficient to have enabled the
defence to challenge the evidence of the anonymous witnesses and
attempt to cast doubt on the reliability of their statements,
which it did in open court by, amongst other things, drawing
attention to the fact that both were drug addicts (see
paragraph 33 above).
76. Finally, it should be recalled that even when
"counterbalancing" procedures are found to compensate
sufficiently the handicaps under which the defence labours, a
conviction should not be based either solely or to a decisive
extent on anonymous statements. That, however, is not the case
here: it is sufficiently clear that the national court did not
base its finding of guilt solely or to a decisive extent on the
evidence of Y.15 and Y.16 (see paragraph 34 above).
Furthermore, evidence obtained from witnesses under
conditions in which the rights of the defence cannot be secured
to the extent normally required by the Convention should be
treated with extreme care. The Court is satisfied that this was
done in the criminal proceedings leading to the applicant's
conviction, as is reflected in the express declaration by the
Court of Appeal that it had treated the statements of Y.15 and
Y.16 "with the necessary caution and circumspection" (see
paragraph 34 above).
3. The witness N.
77. The witness N. made a statement to the police inculpating
the applicant but retracted it when questioned on oath in open
court in the presence of the applicant, both before the Regional
Court and the Court of Appeal. The Court of Appeal nonetheless
decided to attach some credence to N.'s statement to the police.
78. As stated in paragraph 67 above, the Court's task under
the Convention is not to give a ruling as to whether statements
of witnesses were properly admitted as evidence; this is for the
domestic courts, the task of the European Court being to
ascertain whether the proceedings as a whole, including the way
in which evidence was taken, were fair. The Court cannot hold
in the abstract that evidence given by a witness in open court
and on oath should always be relied on in preference to other
statements made by the same witness in the course of criminal
proceedings, not even when the two are in conflict.
The Court, therefore, does not find that the decision
taken by the Court of Appeal with regard to the evidence given
by N., whether considered on its own or together with the other
matters complained of, rendered the applicant's trial unfair.
4. The witness R.
79. Repeated but unsuccessful attempts were made to bring the
named witness R. before the Regional Court, following which the
applicant withdrew his request to have him heard (see
paragraph 19 above). In the appeal proceedings R. was brought
before the court by force, but absconded before he could be
questioned (see paragraph 31 above). A subsequent attempt to
have him brought before the Court of Appeal was likewise
unsuccessful, after which no further attempt was made (see
paragraph 33 above).
80. Despite the Court of Appeal's efforts it was impossible
to secure R.'s attendance at the hearing. In the circumstances
it was open to the Court of Appeal to have regard to the
statement obtained by the police, especially since it could
consider that statement to be corroborated by other evidence
before it (see the Artner v. Austria judgment of 28 August 1992,
Series A no. 242-A, p. 10, para. 22).
Accordingly, no unfairness can be found in this respect
either.
5. The defence expert K. and the prosecution witness I.
81. The Court of Appeal refused to hear the expert K. while
agreeing to hear the police officer I. Both had been brought to
the hearing, K. by the defence and I. by the prosecution (see
paragraphs 31 and 33 above).
The Court of Appeal refused to hear K. for the reason
that as an expert rather than a witness he would not be able to
contribute to the elucidation of the facts of the case.
According to the defence, K. would have been able to testify
generally to the effect that statements made to the police by
drug addicts were often unreliable.
The evidence of the police officer I., on the other hand,
concerned the way in which the police went about obtaining
statements from drug addicts and ensuring that these were as
reliable as possible.
82. As was pointed out earlier (at paragraphs 67 and 78
above), decisions whether to allow evidence and what reliance to
place on admitted evidence are primarily the responsibility of
the domestic courts. The Court of Appeal could consider that the
evidence offered by K. would not have contributed to the
assessment which it was required to make, especially since in any
case a similar statement had already been made by the expert L.,
and it was open to the Court of Appeal to draw from I.'s evidence
the inferences which it did.
The Court therefore does not find that the fairness of
the criminal proceedings against the applicant was adversely
affected by the Court of Appeal's decision to hear I. but not K.
C. Conclusion
83. None of the alleged shortcomings considered on their own
lead the Court to conclude that the applicant did not receive a
fair trial. Moreover, it cannot find, even if the alleged
shortcomings are considered together, that the proceedings as a
whole were unfair.
In arriving at this conclusion the Court has taken into
account the fact that the domestic courts were entitled to
consider the various items of evidence before them as
corroborative of each other.
Accordingly, there has been no violation of Article 6
para. 1 taken together with Article 6 para. 3 (d)
(art. 6-1+art. 6-3-d) of the Convention.
FOR THESE REASONS, THE COURT
Holds, by seven votes to two, that there has been no
violation of Article 6 para. 1 taken together with
Article 6 para. 3 (d) (art. 6-1+art. 6-3-d) of the
Convention.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
26 March 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 55 para. 2 of Rules of Court B, the joint
dissenting opinion of Mr Ryssdal and Mr De Meyer is annexed to
this judgment.
Initialled: R. R.
Initialled: H. P.
JOINT DISSENTING OPINION OF JUDGES RYSSDAL AND DE MEYER
In this case, we agree in substance with the opinion of
Mr Danelius and the other eleven members of the Commission who
shared his view that there had been a breach of the applicant's
defence rights.
It is not only in drugs cases that problems may arise in
relation to the safety of witnesses. It is not permissible to
resolve such problems by departing from such a fundamental
principle as the one that witness evidence challenged by the
accused cannot be admitted against him if he has not had an
opportunity to examine or have examined, in his presence, the
witness in question.
In the instant case the applicant had this opportunity in
respect of the witness N., who withdrew his earlier statement.
The applicant did not have such an opportunity in relation to the
witness R., who "disappeared", or the witnesses Y.15 and Y.16,
who were heard only in the presence of his lawyer.
Moreover, Y.15 and Y.16 were anonymous witnesses whose
identity was only known to the investigating judge but not to the
applicant and his lawyer, nor to the Regional Court and the Court
of Appeal.