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Cite as: 2 BHRC 486, (1997) 25 EHRR 647, (1998) 25 EHRR 647, 25 EHRR 647, [1997] ECHR 22
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In the case of Van Mechelen and Others 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. Bernhardt, President,
Mr F. Matscher,
Mr C. Russo,
Mr N. Valticos,
Mr I. Foighel,
Mr B. Repik,
Mr K. Jungwiert,
Mr E. Levits,
Mr P. van Dijk,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 27 January and 18 March 1997,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 55/1996/674/861-864. 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 17 April 1996, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in
four applications (nos. 21363/93, 21364/93, 21427/93 and 22056/93)
against the Kingdom of the Netherlands lodged with the Commission under
Article 25 (art. 25) by Mr Hendrik van Mechelen and Mr Willem Venerius
on 27 November 1992, by Mr Johan Venerius on 8 December 1992 and by
Mr Antonius Amandus Pruijmboom on 24 November 1992. All
four applicants are Netherlands nationals.
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 (d) of the
Convention (art. 6-1, art. 6-3-d).
2. In response to the enquiry made in accordance with Rule 35
para. 3 (d) of Rules of Court B, the applicants designated the lawyers
who would represent them (Rule 31).
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. Bernhardt, the
Vice-President of the Court (Rule 21 para. 4 (b)). On 27 April 1996,
in the presence of the Registrar, the President of the Court,
Mr R. Ryssdal, drew by lot the names of the other seven members, namely
Mr F. Matscher, Mr C. Russo, Mr N. Valticos, Mr I. Foighel,
Mr B. Repik, Mr K. Jungwiert and Mr E. Levits (Article 43 in fine of
the Convention and Rule 21 para. 5) (art. 43). Subsequently
Mr P. van Dijk, the newly elected judge of Netherlands nationality,
replaced Mr Martens who had resigned (Rules 6 and 21 para. 3 (a)).
4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the
Netherlands Government ("the Government"), the applicants' lawyers 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 Government's memorial on 14 October 1996 and
the applicants' memorials and Article 50 claims (art. 50) between
22 and 29 October.
5. On 30 September 1996 the President of the Chamber rejected an
application by Rights International, a non-governmental organisation
based in New York, for leave to submit written comments (Rule 39
para. 2).
6. On 10 January 1997 a document which the Registrar had sought from
the Government at the request of the President of the Chamber was
received at the registry.
7. On 22 January 1997 the President of the Chamber decided to admit
to the case file certain additional documents submitted by the
applicants.
8. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
23 January 1997. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr R.A.A. Böcker, Ministry of Foreign Affairs,
Mr H.A.M. von Hebel, Ministry of Foreign Affairs, Agents,
Ms I.M. Abels, Ministry of Justice,
Ms N.H.N.I. Houben, Ministry of Justice, Advisers;
(b) for the Commission
Mr H.G. Schermers, Delegate;
(c) for the applicants
Mr G.G.J. Knoops, advocaat en procureur,
Mr J.M. Sjöcrona, advocaat en procureur,
Ms T. Spronken, advocaat en procureur, Counsel,
Ms M. Garé,
Ms S. van der Toorn, Assistants.
The Court heard addresses by Mr Schermers, Mr Knoops,
Mr Sjöcrona, Ms Spronken and Mr von Hebel.
AS TO THE FACTS
I. Particular circumstances of the case
A. Background to the case
9. The police received information to the effect that the applicants
were the perpetrators of several robberies, and that they operated from
two residential caravan sites. It was decided to detail a
police observation team (observatieteam, "OT") to keep these
caravan sites under observation as from 25 January 1989.
10. On 26 January 1989 at around 5.15 p.m. three motor cars, a
Mercedes estate car, a BMW and a Lancia, were seen to leave one of the
two caravan sites shortly after each other. Their registration numbers
were noted.
11. On 26 January 1989 at around 6 p.m. the post office of the town
of Oirschot was robbed. The window of the post office was broken down
by backing a Mercedes estate car equipped with a steel girder into it.
One of the robbers, wearing a black balaclava helmet and armed with a
pistol, forced the staff to surrender some 70,000 Netherlands guilders.
The robbers then set the Mercedes car alight and made off in a BMW.
Police cars alerted by radio followed the BMW. Police officers
saw the BMW drive onto a sand track leading into a nearby forest.
Later they saw a column of smoke coming out of the forest. The BMW was
subsequently found there, burnt out.
Four police officers in a police car saw a red car (later found
to be a Lancia) leave the forest via the same sand track used by the
BMW and gave chase. In the course of the chase the boot of the car was
opened from the inside and men squatting in the back opened fire at the
pursuing police car with a pistol and a sub-machine gun. A car
containing civilians was hit by a stray bullet but its occupants were
not hurt.
The Lancia made off at high speed and entered a side road. When
the police car caught up with it the Lancia was stationary. A man
standing in the road fired at the police car with a sub-machine gun.
The police car was hit and its occupants injured, after which the
gunman and the persons in the Lancia made their escape.
12. All three cars - the Mercedes, the BMW and the Lancia - were
later identified as the cars which had been seen leaving the
caravan site (see paragraph 10 above).
B. The criminal proceedings
1. Proceedings in the 's-Hertogenbosch Regional Court
13. The applicants and one other man, called Amandus Pruijmboom (not
to be confused with the applicant Antonius Amandus Pruijmboom), were
charged with attempted murder - or, in the alternative, attempted
manslaughter - and robbery with the threat of violence and summoned to
appear for trial before the 's-Hertogenbosch Regional Court
(arrondissementsrechtbank) on 19 May 1989.
Evidence proffered by the prosecution included statements made
to a named police officer by police officers identified only by a
number.
14. In interlocutory judgments of 2 June 1989 the Regional Court
decided that it was necessary to establish whether the police officers
identified only by numbers had investigative competence
(opsporingsbevoegdheid). To that end it referred the case to the
investigating judge (rechter-commissaris) and adjourned the case until
20 July.
The investigating judge established that the police officers in
question did in fact have investigative competence.
Counsel for Mr Willem Venerius argued, inter alia, that the
police officers identified only by a number were anonymous witnesses,
so that their statements did not constitute sufficient proof, in the
absence of corroborating evidence, to support a conviction. The
Regional Court rejected this argument, holding that since the
police officers in question had investigative competence, the
evidential value of their statements was not affected by their
anonymity.
The Regional Court convicted the accused of attempted
manslaughter and robbery with the threat of violence. The evidence
identifying the applicants as perpetrators of these crimes was
constituted by the statements made before the trial by the anonymous
police officers, none of whom gave evidence before either the
Regional Court or the investigating judge.
All five accused were sentenced to ten years' imprisonment.
2. Proceedings in the 's-Hertogenbosch Court of Appeal
15. The five convicted men appealed to the 's-Hertogenbosch
Court of Appeal (gerechtshof).
At the hearing before that court on 2 May 1990 the applicants'
lawyers made requests for several named and anonymous witnesses to be
heard. The Court of Appeal thereupon referred the case to the
investigating judge, firstly because it considered it necessary to find
out what objections the police officers themselves had against the
lifting of their anonymity and secondly because the number of persons
to be heard was such that it could not conveniently be done in open
court. The persons to be heard were four named police officers,
eleven anonymous police officers (identified to the defence and the
court only by a number) and two civilians.
16. The named and anonymous witnesses were questioned on
24 and 27 September and on 5-8 and 13 November 1990.
All of the anonymous witnesses were - or had at the relevant time
been - police officers invested with investigative competence.
The procedure followed for questioning them was that the
investigating judge, the witness and a registrar were together in one
room, and the defendants, their lawyers and the advocate-general in
another. The defendants, the lawyers and the advocate-general could
hear all the questions asked to the witnesses and their replies through
a sound link. The statements of the witnesses were repeated by the
investigating judge to the registrar, who took them down.
17. On 24 September 1990 witness 001 was interrogated. He was a
member of an observation team. It was his wish and that of his
superiors that he remain anonymous in the interests of the service; in
addition, his family had been threatened in the past. Witness 001
confirmed a statement which he had made earlier, to the effect that
when confronted with Mr van Mechelen through a two-way mirror he had
identified him as the man who had sat next to the driver of the Lancia.
Witness BRZ03 was interrogated the same day. His wish to remain
anonymous was primarily inspired by the wish to ensure the safety of
his family and friends; he had been threatened in the past. At the
time of the crimes in question he had been a member of an
arresting team. He had been a passenger in the front seat of the
police car used to pursue the Lancia and had been badly wounded in the
shooting.
Witness 006 was a member of an observation team. He wished to
remain anonymous to ensure the safety of his family and friends and his
colleagues; he knew of cases in which a police officer's family had
been threatened. He confirmed the correctness of a report which he had
drawn up together with witness 005.
Witness BRZ09 had been a member of an arresting team at the
relevant time. He wished to remain anonymous in the interests of the
service but also for the safety of his family. He confirmed an earlier
report to the effect that he had been a back-seat passenger in the
police car which had pursued the Lancia, and had been fired at.
18. On 27 September 1990 the investigating judge drew up an
official report of his findings with regard to the first four anonymous
witnesses. He considered them all reliable, although they had shown
great caution when asked questions which might affect their anonymity.
He also considered their reasons for wishing to remain anonymous
well-founded.
19. Also on 27 September 1990 the investigating judge interrogated,
in addition to two named police officers, the named witness Mr Engelen.
Mr Engelen was a civilian bystander who stated that he had seen a man
fire a gun. He had later identified Mr van Mechelen as that man when
confronted with him through a two-way mirror.
20. On 3 October 1990 the Court of Appeal resumed the hearing. The
lawyer defending Mr Willem Venerius asked for one anonymous
police officer - BRZ03 - to be heard in open court. The
Court of Appeal however decided not to continue its own examination of
the case until all witnesses had been questioned by the
investigating judge.
21. On 5 November the investigating judge resumed the interrogation
of the witnesses.
Witness BRZ10 stated that he was a member of an arresting team.
He had been the driver of the police car used in the attempt to pursue
the Lancia and force it to stop. He had recognised Mr Johan Venerius
as the driver of the Lancia.
Witness 004 stated that he had been a member of an observation
team at the relevant time. He wished to remain anonymous because he
feared for the safety of his family. In addition, he was involved in
the work of the criminal intelligence department
(Criminele Inlichtingen Dienst, "CID"). His superiors wanted him to
remain anonymous for that reason. He too had recognised
Mr Johan Venerius as the driver of the Lancia.
Witness 005 was also a member of an observation team. He had
been a passenger in a police car which had passed the Lancia and had
recognised Mr Johan Venerius as the driver.
22. Witness 003 had been a member of an observation team at the
relevant time. He wished to remain anonymous in the interests of the
service as well as for the safety of his family. He had been the
driver of an unmarked police car and had seen the BMW and the Lancia
drive past but had not recognised any of their occupants.
Witness 46204 had been a member of an arresting unit. He wished
to remain anonymous in the interests of the service as well as for the
safety of his family. He had seen the BMW both before and after the
robbery in Oirschot. The driver on both occasions had been the
applicant Pruijmboom, whom he had later recognised at a confrontation.
Witness 46203 had been a member of the same arresting unit. He
was "99% certain" that he had seen Mr van Mechelen enter the
caravan site about an hour before the three cars left from there.
Witness BRZ08 had left the police force but at the relevant time
had been a member of an arresting team. He wished to remain anonymous
for the safety of his family, three of his colleagues having been
threatened in the past. He had been the driver of the police car which
had pursued the Lancia and had been fired at. He had sustained
injuries, as had the other police officers in the car.
23. The various named police officers provided background information
relating to the investigation and the procedures followed but did not
positively identify any of the applicants as the perpetrators. Some
of them stated that they knew of colleagues who had been threatened in
other cases but none of them had yet been threatened in this case.
24. On 19 November 1990 the investigating judge drew up a report of
his findings concerning the questioning of the witnesses. This
document reads as follows:
"REGIONAL COURT OF 's-HERTOGENBOSCH
Investigating judge
with responsibility
for criminal cases
___________________
OFFICIAL RECORD OF FINDINGS
The cases against:
Willem Venerius,
Johan Venerius,
Hendrik van Mechelen,
Amandus Pruijmboom, and
Antonius Amandus Pruijmboom
were referred by the Court of Appeal at 's-Hertogenbosch to
myself, A.H.L. Roosmale Nepveu, investigating judge with
responsibility for criminal cases at the Regional Court of
's-Hertogenbosch. I, investigating judge, wish to place the
following on record in connection with the investigation
conducted by myself with the assistance of the registrar.
The Court of Appeal referred the cases against the said accused
persons to me in order for a total of twenty-one witnesses to be
heard. Eleven of them are designated only by a number in the
documents.
I, investigating judge, questioned twenty witnesses in the
presence of the registrar. I also, together with the registrar,
drew up a record of the hearing for each accused separately. The
statements of the witnesses are however similar in all cases,
since the hearings took place simultaneously in all five cases.
Thus in the statements the names of fellow accused and their
counsel appear as 'persons asking questions'.
The witnesses indicated were questioned on the dates given below:
24 September 1990 001
BRZ03
006
BRZ09
27 September 1990 F.P.W. Engelen
A.P.J.M. de Vet
G.J.M. Jansen
5 November 1990 BRZ10
004
005
6 November 1990 003
46204
46203
7 November 1990 BRZ08
H.P.C. Koene (adjourned)
8 November 1990 W.P.A. Meijers
P.F.M. Aarts
H.P.C. Koene (resumed)
13 November 1990 H.B. Corbijn
P.J.M. Swartjes
G.W.A.M. Ligtvoet.
...
The accused, their counsel and the advocate-general were always
invited to the hearings. Whenever they appeared they were also
given an opportunity to ask questions. They did so extensively.
The hearings took up a great deal of time. The shortest hearing
of an unidentified witness lasted nearly two hours (46203); the
longest about five hours (BRZ08). The hearings of witnesses
Jansen and Koene each lasted a good five hours. This information
may perhaps be of use in assessing the suggestion that was made
on 3 October 1990 to the Court of Appeal, that all the witnesses
should be heard by the Court in a single day.
Where a witness did not answer a question, this is also indicated
in the text of his statement.
The statements were recorded in very great detail and in fact
cover all the matters raised - also by the defence -, in a
factual and where necessary even literal transcript. Once the
text existed in draft form, those present were invariably given
the opportunity to make comments, request clarification and put
further questions. Where necessary the statement was then
amended, clarified and expanded - always, of course, within the
limits of what the witness really wanted to say. And even if ...
there are drawbacks to the manner in which the hearings of the
unidentified witnesses were carried out, it is my belief that the
advocate-general and the defence had sufficient opportunity to
question the witnesses thoroughly at the hearings. Those present
really did have the opportunity for hours on each occasion. If
they so desired, those present had several chances to put
questions to a witness. Unlike what normally happens at
court hearings, everyone was able to follow the entire
transcription of the statements and then still obtain
clarifications and additions. Questions were barred only on
substantive grounds (see the records for details), not by reason
of the time taken for the interrogations.
In the light of recent case-law in the matter of statements by
unidentified witnesses, I think it is right for me to make known
my findings regarding the statements of the unidentified
witnesses heard in this case. I, the investigating judge, and
the registrar, are the only persons who attended all the hearings
from start to finish.
I stand by my official record of findings dated 27 September 1990
where the witnesses referred to in it are concerned
[see paragraph 18 above]. I would now add the following:
All the 'numbered witnesses' made their identities known to me.
It was clear to me that all eleven were different persons.
Their statements indicated such a knowledge of the facts that I
am entirely convinced that I was talking to the witnesses
referred to by numbers in the documents. I have no reason to
doubt their reliability. Nor at any time did I have the
impression that I was being lied to. On the contrary, each and
every one of them was very much to the point. The persons facing
me wore serious expressions. The unidentified witnesses were
clearly quite aware of the serious nature of the oath or pledge
they had given and of the very great interests at stake,
especially for the accused persons involved. The calm, quiet
manner in which, for example, BRZ03 and BRZ08 related their
experiences in Leende (in which connection I expressly leave it
to the Court of Appeal to decide whether these accused persons
were the perpetrators) was impressive and certainly gave no
indication of malice towards the accused. All the witnesses
manifested a certain degree of wariness, which, in view of their
desire to remain anonymous and the sometimes rather forceful
manner of questioning on the part of [two of the defence lawyers]
in particular, did not bother me.
If all the statements are laid side by side, some differences of
detail can be observed. I do not think that these differences
are such as to warrant the conclusion that the witnesses may be
unreliable. Rather, in so far as I have observed any
differences, I would describe them rather as the 'extraneous
noise' which in my experience practically always affects
statements by witnesses. Of course it is ultimately for the
Court of Appeal to decide on the value of the statements.
The reasons for the witnesses wishing to remain anonymous in the
instant case are given in the records of the hearings. It seems
to me that I am now affording the Court an opportunity to reflect
on the value of those arguments. I think that the text of the
recent judgments of the Supreme Court of the Netherlands also
compels me, as the judge conducting the questioning, to state my
opinion on the reasons given by the witnesses for remaining
anonymous. I am also concerned to inform the Court of Appeal
that I am aware that the Court is called to take the final
decision in these matters. I consider the reasons behind the
desire to remain anonymous to be such as fully to justify
anonymity. I have had regard in this connection to the nature
of these cases and to the nature of the activities of the
anonymous witnesses concerned.
I take the liberty of observing - while expressly leaving aside
the question whether these accused persons are the perpetrators -
that the instant case tellingly illustrates the fact that there
are evidently people for whom human lives do not count when it
comes to evading responsibility for exceptionally serious crimes
which they may have committed.
I can understand that there are major objections to revealing the
names and appearance of members of arresting teams, observation
teams and arresting units to the public at large. By that I mean
that the obvious interest of society in having very serious
crimes solved should weigh in the balance. At the same time, I
am of the opinion that the conduct of the unidentified witnesses
(who are no longer anonymous to myself) who have appeared in this
case is the subject of proper judicial supervision. It is not
apparent to me as investigating judge that the 'numbered
witnesses' acted carelessly. Rather, in my opinion, the opposite
was true.
During the last hearing of the witness Koene, [two of the
defence lawyers] asked me to record that, in their view, the
witness answered not only the questions of the defence but also
questions by the investigating judge in a ponderous, deliberate
manner that was hard to follow. I have been asked to endorse
that opinion. I decline to do so. The witness Koene was wary
in his answers, which I find understandable in view of the
barrage of questions - which were not always formulated equally
clearly. It must not be forgotten that a witness who is being
questioned on oath about a multitude of events that occurred some
years previously should not be reproached for failing, in his
answers to those questions, to keep up with the tempo of the
rather forceful questioning to which [the two lawyers] in
particular subjected him on 8 November 1990, together and in
tandem. Furthermore, I can imagine that a witness may be
somewhat annoyed if he is repeatedly asked the same question,
especially if he has already replied under oath on the day
before. The witness Koene kept a cool head, and in so doing
demonstrated a certain quality. As far as I can judge at the
present time, I regard him as a reliable witness. Nor do I think
that he can be regarded as a reluctant witness, if only by reason
of his extensive statements in the records of 7 November and
8 November 1990.
The witness Koene informed me on 15 November 1990 that on
26 January 1989 the persons numbered BRZ05 and BRZ14 were in the
car with BRZ10. He gave me this information following a request
by the defence.
I think I ought not to omit to mention, with regard to the
witness Engelen, that throughout the hours of insistent
questioning he certainly did not strike me as untruthful. In my
judgment, Mr Engelen is a simple, friendly and very obliging man.
Perhaps I can illustrate the impression I had of him by recording
that, after the interrogation had gone on for a considerable
time, I thought it opportune to ask the unusual question whether
the witness could read. I do not exclude the possibility that
he is not entirely aware of the great importance of an exact and
consistent account of what he saw.
In the second paragraph on the first page of the statement by the
witness Engelen, I suggested to him that the confrontation had
occurred on 15 February 1989. The date should be 9 March 1989.
[One of the defence lawyers] pointed this out to me later and I
think he is right.
...
(signed) A.H.L. Roosmale Nepveu
19 November 1990"
25. The hearing before the Court of Appeal was resumed on
16, 17 and 18 January 1991.
On 16 January a named witness, Mr Engelen, was heard in
open court. He had stated to the police in March 1989, and to the
investigating judge in September 1990, that he recognised the applicant
Van Mechelen as the man who had fired a sub-machine gun at a police car
in the village of Leende. Before the Court of Appeal he stated that
on the latter occasion he had been allowed to re-read his earlier
statement, but that he was no longer sure whether he could still
recognise either the weapon or the man who had fired it. He also said
that he had not been threatened in connection with the case.
On 18 January the lawyer acting for the applicant Van Mechelen
brought forward two persons chosen for their excellent eyesight (both
having participated in the Olympic games as members of the
Netherlands rifle-shooting team), and who had participated in a
reconstruction of the shooting in light and weather conditions similar
to those obtaining at the time of the crime. These witnesses both
stated that they had been unable to distinguish the features of the
persons acting the parts of the perpetrators at the distances at which
it had been alleged that the accused had been seen by Mr Engelen. A
video recording had been made of the reconstruction, in the presence
of a notary who had kept the original videotape under seal.
The hearing was again resumed on 21 January 1991, and the video
of the reconstruction was shown.
26. The Court of Appeal convicted all four applicants in
four separate but similar judgments on 4 February 1991.
All four applicants were found guilty of attempted murder and
robbery with the threat of violence and sentenced to fourteen years'
imprisonment. The fifth suspect, Mr Amandus Pruijmboom, was acquitted.
The Court of Appeal's judgment in the case of the applicant
Van Mechelen contained the following:
"Considering with regard to the statements, used in evidence, of
the persons who remained anonymous, that these statements were
taken down by a judge, more particularly the investigating judge
responsible for criminal cases within the jurisdiction of the
's-Hertogenbosch Regional Court, who himself knows the identity
of the witnesses, who has heard these witnesses on oath, who in
his official record of his findings ... has given his reasoned
opinion of the reliability of the witnesses and their reasons for
wishing to remain anonymous, and who, moreover, has offered the
accused and the defence the opportunity to question these
witnesses, of which opportunity, as appears from the official
records of the interrogations, extensive use has been made.
The objections of the witnesses heard by the investigating judge
and identified only by a number to remain anonymous (sic) are
sufficient reason for the Court of Appeal to continue this
anonymity. The Court of Appeal refuses the request made by
counsel at the hearing to have these witnesses heard in open
court, even if this request should be understood to imply that
the witnesses might be disguised, since the possibility that the
witnesses may be recognised in open court cannot be excluded.
Of the arguments for continuing the anonymity of the witnesses,
the Court of Appeal considers particularly persuasive the
personal safety of these witnesses and their families, and it
makes no difference that these witnesses have not yet been
threatened. As already noted in the Court of Appeal's
interlocutory decision of 3 October 1990, the present case
concerns extremely serious crimes, the [attempted murder] having
been committed so as to evade recognition and arrest by the
police, the perpetrators having been prepared to sacrifice a
number of human lives. In these circumstances, the risk run by
the witnesses identified only by a number and their families if
their anonymity is lifted or insufficiently guaranteed is
decisive. In so far as anonymous witnesses have refused to
answer questions this was done in order not to disclose methods
of investigation or to maintain the anonymity of other
investigating officers involved in the case."
The Court of Appeal considered the statements of the anonymous
police officers to be corroborated by each other and by the evidence
available from non-anonymous sources. This other evidence included a
transcript of a telephone conversation between the wife of
Mr Johan Venerius and her mother intercepted two days after the date
of the crime, from which it appeared that Mr Johan Venerius had not
returned home in the meanwhile and his whereabouts were unknown, as
well as forensic reports relating to the cars and the weapons used for
the crime and the above-mentioned statements of the named civilians and
police officers. However, the Court of Appeal did not rely on the
statements of Mr Engelen.
3. Proceedings in the Supreme Court
27. The applicants filed appeals on points of law (cassatie) to the
Supreme Court (Hoge Raad).
In accordance with the advisory opinion of the advocate-general,
the Supreme Court dismissed the appeals in a series of judgments of
9 June 1992. It held that in the circumstances the evidence given by
the unnamed police officers was admissible, since on the one hand their
evidence was sufficiently corroborated by the evidence obtained from
named sources and on the other the procedure followed provided
sufficient compensation for the handicaps under which the defence had
laboured.
The Supreme Court's judgments concerning Mr Willem Venerius and
Mr van Mechelen were reported in Nederlandse Jurisprudentie
(Netherlands Law Reports, "NJ") 1992, nos. 772 and 773 respectively.
28. It has not been alleged that any named or anonymous witnesses
were at any time threatened by or on behalf of the applicants.
II. Relevant domestic law and practice
29. Except for the differences noted below (see paragraphs 39 and
following), relevant domestic law and practice at the time of the
criminal proceedings complained of were as set out in the Court's
Kostovski v. the Netherlands judgment of 20 November 1989 (Series A
no. 166). Reference is therefore made to that judgment, especially
pp. 13-17, paras. 22-32.
A. The Code of Criminal Procedure
1. Evidence in general
30. The finding that an accused has committed the act with which he
is charged must be based on "legal means of evidence"
(wettige bewijsmiddelen - Article 338 of the Code of Criminal Procedure
(Wetboek van Strafvordering - CCP)).
"Legal means of evidence" include inter alia statements of
witnesses relating to facts or circumstances which they themselves have
witnessed (Articles 339 para. 1 (3) and 342 para. 1 CCP) and written
documents (Article 339 para. 1 (5) and 344 para. 1 CCP).
Such evidence must normally be corroborated by other evidence
(Articles 342 para. 2, 344 para. 1 (5) CCP). However, an official
record made in the proper form by a police officer invested with
investigative competence can be admitted without corroboration
(Article 344 para. 2 CCP).
2. Witnesses
31. 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 33 below)
to renew the request to the trial court at the hearing.
32. 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).
33. 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).
34. 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 35 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.
35. 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.
36. 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).
37. 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).
38. 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
39. In its judgment of 9 January 1990, NJ 1990, no. 409, the
Supreme Court held that there was no general rule in Netherlands law
to the effect that statements by anonymous police officers could only
be admitted if the trial court had first established the existence of
clear indications that the officers were under threat.
40. In its judgment of 2 July 1990, 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. On the other hand, according to
the same judgment, a written document containing the statement of an
anonymous witness may be used in evidence if (a) the defence has 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
41. 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 prosecuting 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 written document containing 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.
42. The following passages are taken from the explanatory memorandum
of the bill which became the Act of 11 November 1993:
"The Bill is based on the assumption that only threatened
witnesses should be in a position to claim complete anonymity.
I realise that the usefulness of certain police officers
(e.g. undercover agents posing as drugs purchasers, members of
an arresting team or an observation team) will be reduced
thereby. However, the public interest in investigating serious
crime cannot alone justify guaranteeing complete anonymity. This
interest can in my opinion be sufficiently protected if the law
creates the possibility to refrain from asking the police officer
for certain identifying information and by granting the
interrogating judge the power to take all measures which are
reasonably required to prevent the disclosure of such identifying
information, such as making the police officer unrecognisable by
the use of make-up or disguise or preventing eye contact between
the accused and the police officer." (Explanatory Memorandum,
Lower House of Parliament 1991-92, 22 483, no. 3, p. 17).
PROCEEDINGS BEFORE THE COMMISSION
43. Mr van Mechelen and Mr Willem Venerius applied to the Commission
on 27 November 1992, Mr Johan Venerius on 8 December and Mr Pruijmboom
on 24 November. They relied on Article 6 paras. 1 and 3 (d) of the
Convention (art. 6-1, art. 6-3-d), complaining that their convictions
were based to a decisive extent on the evidence of anonymous witnesses,
in respect of whom the rights of the defence had been unacceptably
restricted.
44. The Commission declared the applications (nos. 21363/93,
21364/93, 21427/93 and 22056/93) admissible on 15 May 1995. In its
report of 27 February 1996 (Article 31) (art. 31) it expressed the
opinion that there had been no violation of Article 6
paras. 1 and 3 (d) of the Convention (art. 6-1, art. 6-3-d)
(twenty votes to eight). The full text of the Commission's opinion and
of the two dissenting opinions 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 the judgment (in Reports of Judgments and
Decisions 1997-III), but a copy of the Commission's report is
obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
45. The Government concluded their memorial by expressing the opinion
that the applicants had had a "fair trial" within the meaning of
Article 6 paras. 1 and 3 (d) of the Convention (art. 6-1, art. 6-3-d).
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARAS. 1 AND 3 (d) OF THE
CONVENTION (art. 6-1, art. 6-3-d)
46. The applicants complained that their conviction had been based
essentially on the evidence of police officers whose identity was not
disclosed to them and who were not heard either in public or in their
presence. They alleged a violation of Article 6 paras. 1 and 3 (d)
(art. 6-1, art. 6-3-d), according to which:
"1. In the determination of ... any criminal charge against him,
everyone is entitled to a fair and public hearing ... Judgment
shall be pronounced publicly but the press and public may be
excluded from all or part of the trial in the interest of morals,
public order or national security in a democratic society, where
the interests of juveniles or the protection of the private life
of the parties so require, or to the extent strictly necessary
in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice.
...
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 Government nor the Commission shared this view.
A. Arguments before the Court
47. The applicants questioned the need to maintain the anonymity of
the police officers at all. There had in their contention not been any
danger for them or their families. This was borne out by the fact that
Mr Engelen, the one named witness who in the earlier stages of the
proceedings had made statements incriminating one of the applicants,
had not been granted anonymity and it had not been suggested that he
had at any time been threatened.
Moreover, the interrogation of the witnesses should in their
contention not have taken place before the investigating judge. It
would in their view have been feasible to have the police officers
questioned in open court, wearing disguise if need be.
In addition, the applicants considered that they had not had
sufficient opportunity to challenge and question the police officers.
They drew attention to the conditions under which the interrogation of
the anonymous witnesses had taken place.
The anonymous police officers had been confined in a room with
the investigating judge, separated from the applicants and their
lawyers; it had not been possible for the applicants or their lawyers
to discover whether there had been any other person in that room or
what was going on there.
Not all the questions asked by the defence had been answered.
Questions not answered had included, for instance, where the
police officer being interrogated had been at the time he made his
observation, whether he wore spectacles, and whether the observation
of the caravan sites had involved the use of optical aids or a
directional microphone.
Finally, the applicants claimed that their conviction had been
based "to a decisive extent" on the evidence given by anonymous
witnesses. The only evidence relied on by the Court of Appeal
positively identifying the applicants had been that given by anonymous
police officers.
48. The Government and the Commission both considered that there had
been no violation of Article 6 paras. 1 and 3 (d) (art. 6-1,
art. 6-3-d).
They both considered that the safety of the police officers
themselves and their families, and the need not to impair their
usefulness in other similar operations, provided sufficient
justification for maintaining their anonymity.
The procedure followed had been that established by the
Netherlands Supreme Court in its judgment of 2 July 1990
(see paragraph 40 above) in the wake of the European Court's judgment
in the Kostovski case (judgment of 20 November 1989, Series A no. 166).
This procedure, so they argued, had been accepted by the Court in its
Doorson judgment (Doorson v. the Netherlands, 26 March 1996, Reports
of Judgments and Decisions 1996-II).
In accordance with this procedure, the statements of the
anonymous police officers had been taken down (a) by a judge, who
(b) had himself ascertained the identity of the police officers
concerned, (c) had given a written opinion of their reliability and
credibility in his official report, (d) had given a reasoned opinion
of their reasons to remain anonymous and found them sufficient, and
(e) had given the defence sufficient opportunity to question them or
have questions put to them. The official report of the
investigating judge, which was very detailed, bore this out.
There had in addition been evidence from non-anonymous sources,
namely a recorded telephone conversation, statements of named
police officers and certain technical evidence, which tended to
corroborate the statements of the anonymous police officers. The
conviction of the applicants did therefore not rest solely on the
latter statements.
B. The Court's assessment
1. Applicable principles
49. 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) taken together (art. 6-1+6-3-d)
(see, among many other authorities, the above-mentioned
Doorson judgment, pp. 469-70, para. 66).
50. 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 Doorson judgment, p. 470, para. 67).
51. In addition, all the evidence must normally be produced at a
public hearing, in the presence of the accused, with a view to
adversarial argument. There are exceptions to this principle, but they
must not infringe the rights of the defence; as a general rule,
paragraphs 1 and 3 (d) of Article 6 (art. 6-1, art. 6-3-d) require that
the defendant be given an adequate and proper opportunity to challenge
and question a witness against him, either when he makes his statements
or at a later stage (see the Lüdi v. Switzerland judgment of
15 June 1992, Series A no. 238, p. 21, para. 49).
52. As the Court had occasion to state in its Doorson judgment
(ibid., p. 470, para. 69), the use of statements made by anonymous
witnesses to found a conviction is not under all circumstances
incompatible with the Convention.
53. In that same judgment the Court noted the following:
"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 of the Convention (art. 8). 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." (see the above-mentioned Doorson judgment, p. 470,
para. 70)
54. However, if the anonymity of prosecution witnesses is maintained,
the defence will be faced with difficulties which criminal proceedings
should not normally involve. Accordingly, the Court has recognised
that in such cases Article 6 para. 1 taken together with Article 6
para. 3 (d) of the Convention (art. 6-1+6-3-d) requires that the
handicaps under which the defence labours be sufficiently
counterbalanced by the procedures followed by the judicial authorities
(ibid., p. 471, para. 72).
55. Finally, it should be recalled that a conviction should not be
based either solely or to a decisive extent on anonymous statements
(ibid., p. 472, para. 76).
2. Application of the above principles
56. In the Court's opinion, the balancing of the interests of the
defence against arguments in favour of maintaining the anonymity of
witnesses raises special problems if the witnesses in question are
members of the police force of the State. Although their interests -
and indeed those of their families - also deserve protection under the
Convention, it must be recognised that their position is to some extent
different from that of a disinterested witness or a victim. They owe
a general duty of obedience to the State's executive authorities and
usually have links with the prosecution; for these reasons alone their
use as anonymous witnesses should be resorted to only in exceptional
circumstances. In addition, it is in the nature of things that their
duties, particularly in the case of arresting officers, may involve
giving evidence in open court.
57. On the other hand, the Court has recognised in principle that,
provided that the rights of the defence are respected, it may be
legitimate for the police authorities to wish to preserve the anonymity
of an agent deployed in undercover activities, for his own or his
family's protection and so as not to impair his usefulness for future
operations (see the above-mentioned Lüdi judgment, p. 21, para. 49).
58. Having regard to the place that the right to a fair
administration of justice holds in a democratic society, any measures
restricting the rights of the defence should be strictly necessary.
If a less restrictive measure can suffice then that measure should be
applied.
59. In the present case, the police officers in question were in a
separate room with the investigating judge, from which the accused and
even their counsel were excluded. All communication was via a
sound link. The defence was thus not only unaware of the identity of
the police witnesses but were also prevented from observing their
demeanour under direct questioning, and thus from testing their
reliability (see the above-mentioned Kostovski judgment, p. 20,
para. 42 in fine).
60. It has not been explained to the Court's satisfaction why it was
necessary to resort to such extreme limitations on the right of the
accused to have the evidence against them given in their presence, or
why less far-reaching measures were not considered.
In the absence of any further information, the Court cannot find
that the operational needs of the police provide sufficient
justification. It should be noted that the explanatory memorandum of
the bill which became the Act of 11 November 1993 (see paragraph 42
above) refers in this connection to the possibilities of using make-up
or disguise and the prevention of eye contact.
61. Nor is the Court persuaded that the Court of Appeal made
sufficient effort to assess the threat of reprisals against the
police officers or their families. It does not appear from that
court's judgment that it sought to address the question whether the
applicants would have been in a position to carry out any such threats
or to incite others to do so on their behalf. Its decision was based
exclusively on the seriousness of the crimes committed
(see paragraph 26 above).
In this connection, it is to be noted that Mr Engelen, a
civilian witness who in the early stages of the proceedings had made
statements identifying one of the applicants as one of the
perpetrators, did not enjoy the protection of anonymity and it has not
been claimed that he was at any time threatened.
62. It is true - as noted by the Government and the Commission
(see paragraph 48 above) - that the anonymous police officers were
interrogated before an investigating judge, who had himself ascertained
their identity and had, in a very detailed official report of his
findings, stated his opinion on their reliability and credibility as
well as their reasons for remaining anonymous.
However these measures cannot be considered a proper substitute
for the possibility of the defence to question the witnesses in their
presence and make their own judgment as to their demeanour and
reliability. It thus cannot be said that the handicaps under which the
defence laboured were counterbalanced by the above procedures.
63. Moreover, the only evidence relied on by the Court of Appeal
which provided positive identification of the applicants as the
perpetrators of the crimes were the statements of the anonymous police
officers. That being so the conviction of the applicants was based "to
a decisive extent" on these anonymous statements.
64. In the Court's view, the present case falls to be distinguished
from that of Doorson: in the latter case it was decided on the basis
of information contained in the case file itself that the witnesses
Y.15 and Y.16 - who were both civilians, and who knew the accused
personally - had sufficient reason to believe that he might resort to
violence, and they were heard in the presence of counsel (see the
above-mentioned Doorson judgment, pp. 454-55, para. 25, pp. 455-56,
para. 28, and pp. 470-71, paras. 71 and 73).
In addition, in the latter case other evidence providing positive
identification of the accused as the perpetrator of the crimes charged
was available from sources unrelated to the anonymous witnesses (ibid.,
pp. 458-59, para. 34, and p. 472, para. 76).
65. Against this background the Court cannot find that the
proceedings taken as a whole were fair.
C. Conclusion
66. There has been a violation of Article 6 para. 1 taken together
with Article 6 para. 3 (d) (art. 6-1+6-3-d).
II. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
67. Article 50 of the Convention (art. 50) provides as follows:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the
injured party."
A. Damage
68. The applicants argued that if the 's-Hertogenbosch
Court of Appeal had not relied on the statements of the anonymous
police officers, there would have been no case against them and they
would have been acquitted. They each claimed non-pecuniary damage to
an amount of 250 Netherlands guilders (NLG) for each day of detention.
The Government considered the applicants' claims for damage
"disproportionately high".
The Delegate of the Commission did not comment.
69. The Court considers that in the circumstances this aspect of the
case is not yet ready for decision. It is accordingly necessary to
reserve it, due regard being had to the possibility of agreements being
reached between the respondent State and the applicants.
B. Costs and expenses
70. The applicants made no claims in respect of costs and expenses
incurred in the domestic criminal proceedings.
As regards the costs and expenses incurred in the proceedings
before the European Commission and Court of Human Rights, the
applicants' claims were as follows:
Mr van Mechelen and Mr Willem Venerius (represented by
Ms Spronken): NLG 16,598.07 including value-added tax;
Mr Johan Venerius (represented by Mr Sjöcrona): NLG 30,446.43
including value-added tax;
Mr Pruijmboom (represented by Mr Knoops): NLG 11,905 including
value-added tax.
The Government and the Delegate of the Commission did not comment
on these claims.
71. The Court notes that Mr van Mechelen, Mr Johan Venerius and
Mr Willem Venerius were granted legal aid by the
Convention institutions.
72. The Court is satisfied that the costs and expenses claimed were
actually and necessarily incurred by the applicants in their attempts
to obtain redress for the violation found. It also finds the sums
claimed by the applicants Van Mechelen, Willem Venerius and Pruijmboom
reasonable as to quantum.
On the other hand, the claim of Mr Johan Venerius is
disproportionate when compared with the claims of the other applicants.
No explanation has been given for this discrepancy.
73. The Court awards Mr Pruijmboom the sum claimed.
To Mr van Mechelen and Mr Willem Venerius jointly it awards the
sums claimed, less the amount paid to them by the Council of Europe by
way of legal aid, namely 11,412 French francs (FRF).
Deciding on an equitable basis, the Court awards
Mr Johan Venerius NLG 20,000 including value-added tax, less the amount
paid to him by the Council of Europe by way of legal aid, namely
FRF 11,436.
C. Default interest
74. According to the information available to the Court, the
statutory rate of interest applicable in the Netherlands at the date
of adoption of the present judgment is 5% per annum.
FOR THESE REASONS, THE COURT
1. Holds by six votes to three that there has been a violation of
Article 6 para. 1 of the Convention taken together with Article 6
para. 3 (d) (art. 6-1+6-3-d);
2. Holds unanimously that the respondent State is to pay, within
three months, in respect of costs and expenses,
(a) to the applicants Van Mechelen and Willem Venerius jointly,
16,598 (sixteen thousand five hundred and ninety-eight)
Netherlands guilders and 7 (seven) cents, less
11,412 (eleven thousand four hundred and twelve) French francs
to be converted into Netherlands guilders at the rate of exchange
applicable on the date of delivery of the present judgment;
(b) to the applicant Johan Venerius,
20,000 (twenty thousand) Netherlands guilders, less 11,436
(eleven thousand four hundred and thirty-six) French francs to
be converted into Netherlands guilders at the rate of exchange
applicable on the date of delivery of the present judgment;
(c) to the applicant Pruijmboom, 11,905 (eleven thousand
nine hundred and five) Netherlands guilders;
(d) that simple interest at an annual rate of 5% shall be payable
from the expiry of the above-mentioned three months until
settlement;
3. Rejects unanimously the remainder of the claim of the applicant
Johan Venerius for reimbursement of costs and expenses;
4. Holds unanimously that the question of the application of
Article 50 of the Convention (art. 50) in respect of the
applicants' claims for damages is not ready for decision; and
consequently,
(a) reserves the said question;
(b) invites the Government and the applicants to submit, within
the forthcoming three months, their written observations on the
matter and, in particular, to notify the Court of any agreement
they may reach;
(c) reserves the further procedure and delegates to the President
of the Chamber the power to fix the same if need be.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 23 April 1997.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 55 para. 2 of Rules of Court B, the following
separate opinions are annexed to this judgment:
(a) dissenting opinion of Mr Matscher and Mr Valticos;
(b) dissenting opinion of Mr van Dijk.
Initialled: R. B.
Initialled: H. P.
DISSENTING OPINION OF JUDGES MATSCHER AND VALTICOS
(Translation)
This is a borderline case. On the one hand, the conditions in
which the trial took place and the witnesses were examined were
certainly not entirely satisfactory and no doubt they could have been
improved, although it has to be acknowledged that efforts had been made
in Netherlands law to adapt the procedure for hearing anonymous
witnesses to the requirements of Article 6 of the Convention (art. 6)
as set out in the judgment of Kostovski v. the Netherlands
(20 November 1989, Series A no. 166). On the other hand, this was a
case of armed robbery and it is understandable that the witnesses -
even though they were police officers - should be in fear of reprisals
from trigger-happy criminals. Were a similar situation to arise in the
future, it would certainly be desirable for even more attention to be
paid to the requirements of Article 6 of the Convention (art. 6) when
measures were taken.
In the instant case, however, having regard to all the
circumstances, we are unable to find a violation of Article 6 of the
Convention (art. 6) and concur on the whole with the opinion of
Judge van Dijk.
DISSENTING OPINION OF JUDGE VAN DIJK
1. To my regret I am unable to agree with the conclusion of the
majority that there has been a violation of Article 6 para. 1 in
conjunction with Article 6 para. 3 (d) of the Convention
(art. 6-1+6-3-d). Nor can I follow the majority as regards the essence
of the reasoning supporting that conclusion.
2. Although the Court's case-law has not yet been fully developed
as to the conditions subject to which a conviction in
criminal proceedings may be based partly on statements of anonymous
witnesses, the Court has drawn certain lines. I am of the opinion that
the present judgment is neither within these lines nor a logical
continuation thereof, while on the other hand the facts of the case are
not specific to such a degree as to justify distinguishing the present
case from, especially, the Doorson case (Doorson v. the Netherlands
judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II,
in which the Netherlands were found not to have acted in violation of
Article 6 para. 1 taken together with Article 6 para. 3 (d) of the
Convention (art. 6-1+6-3-d)). Even though the Court is not bound by
precedent, legal certainty and legal equality require that the Court's
case-law be both consistent and transparent as well as reasonably
predictable in so far as the facts of the case are comparable to those
of earlier cases.
3. Since "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" (see the previously
cited Doorson judgment, p. 470, para. 67), the applicable
national legislation and case-law and the practice followed by the
domestic courts are to some extent relevant also for the Court.
The Netherlands Supreme Court revised its case-law concerning the
conditions under which a conviction may be based on statements of
anonymous witnesses in view of the judgment of the Court in the
Kostovski case (see paragraph 40 of the present judgment). Moreover,
taking that revised case-law as a starting-point and basing itself,
inter alia, on an analysis of the Court's case-law on the admissibility
of statements of anonymous witnesses in criminal proceedings and the
implications of the Court's case-law for the relevant domestic law and
legal practice in the Netherlands, the Netherlands Government proposed,
and the legislature adopted, several amendments to the
Code of Criminal Procedure (see paragraph 42 of the judgment, and the
explanatory memorandum to the Act of 1993 cited there).
The Act of 1993 was not yet in force when the judgments of the
domestic courts in the present case were given. However, had it been
in force, the procedure followed by the Court of Appeal would have been
in conformity with the rules thereby introduced. It is true that the
reasons listed in the Act for keeping the identity of a witness secret
do not include the desirability, for tactical reasons, of not
disclosing the identity of a police officer in order not to impair his
future effectiveness. The explanatory memorandum of the Act states in
so many words that in the opinion of the Government the public interest
in investigating serious crimes cannot alone justify guaranteeing
complete anonymity (see paragraphs 41 and 42 of the present judgment).
However, the Court of Appeal did not base its acceptance of the wish
of the witnesses to remain anonymous on this reason, but on the fear
of the witnesses for their lives and safety and those of their families
(see paragraph 26 of the present judgment), which is a ground provided
for in Article 226a of the Code of Criminal Procedure.
The foregoing does not, of course, guarantee per se that the
revised case-law of the Supreme Court and/or the relevant provisions
of the amended Code of Criminal Procedure will in all circumstances be
found to be in conformity with the Convention. However, as noted
above, in this matter the domestic case-law and legislation have a
relevance of their own. Moreover, in the present case, in view of the
legal background of the relevant Netherlands case-law and the drafting
history of the new legislation, in both of which Strasbourg case-law
was expressly taken into account, there would seem to be good cause for
a presumption of conformity, at least in so far as the issues dealt
with have also been considered in the Strasbourg case-law.
4. Consideration of the various issues involved ultimately led me
to the conclusion that Article 6 paras. 1 and 3 (d) (art. 6-1,
art. 6-3-d) have not been violated in the present case. It might have
been preferable for the Court of Appeal or the investigating judge to
have interrogated the witnesses in the presence of counsel and the
Procurator General, the accused being able to follow the proceedings
in a separate room. I cannot discover from the case file that was
before the Court whether this possibility was considered at all. Be
that as it may, taking all the facts and circumstances into account,
I am of the opinion that the right of the defence to examine the
witnesses was not limited to such an extent that the defence was not
given an adequate and proper opportunity to challenge and question the
witnesses, as required by Article 6 paras. 1 and 3 (d) (art. 6-1,
art. 6-3-d) (see the Lüdi v. Switzerland judgment of 15 June 1992,
Series A no. 238, p. 21, para. 47). I therefore consider the trials
to have been fair, taking into account also the compensating elements
of the procedure decided on by the Court of Appeal and followed by the
investigating judge. In reaching this conclusion I would stress the
following aspects:
(a) The anonymous witnesses were not interrogated only by a
prosecuting authority, but also by an independent and impartial judge
who, judging from his official report of his findings to the
Court of Appeal, took great care to compensate the defence for the
handicap resulting from the lack of a face-to-face confrontation. The
applicants and their counsel were able to hear the interrogation by the
investigating judge and to ask questions of their own. In these
respects, as was also observed by the Commission, the present case
differs from the cases of Kostovski (Kostovski v. the Netherlands
judgment of 20 November 1989, Series A no. 166, p. 20, para. 42),
Windisch (Windisch v. Austria judgment of 27 September 1990, Series A
no. 186, p. 10, para. 27), Lüdi (loc. cit., p. 21, para. 49), and Saïdi
(Saïdi v. France judgment of 20 September 1993, Series A no. 261-C,
pp. 56-57, para. 44). The practice in cases such as the present of
having witnesses heard by an investigating judge instead of by the
trial court itself was accepted by the Court in its Doorson judgment
as being in conformity with the Convention (loc. cit., p. 471,
para. 73).
(b) The Court of Appeal has given reasons for delegating the hearing
of the witnesses to the investigating judge. The weight which the
minority of the Commission laid on the fact that the Court of Appeal,
being the trial court, did not avail itself of the possibility to
assess for itself the reliability of the witnesses, is in my opinion
not conclusive; there is no good reason why the court could not rely
for this on the assessment of the equally independent and impartial
investigating judge. In that respect, it is also of relevance that the
interrogations before the investigating judge did not take place in a
pre-trial phase but during a suspension of the trial before the
Court of Appeal and pursuant to an order of the Court of Appeal; they
formed part of the trial. In the Kostovski case, where the Court
emphasised the importance of the possibility for the trial judge to
observe the witness, only one of the witnesses was heard by a judge,
who was, however, unaware of the identity of the person concerned
(loc. cit., p. 21, para. 43).
(c) The statements made before the investigating judge were
statements by witnesses who had been identified by the
investigating judge as having been, at the relevant moment, sworn
police officers who were authorised to perform prosecuting duties
invested with investigative competence and were under oath in relation
to any statement made in that context (see the Lüdi judgment previously
cited p. 21, para. 49).
(d) The investigating judge, who had observed the witnesses during
the interrogations, gave a reasoned opinion as to their reliability;
this was also intended to compensate the defence for being deprived of
the visual information which would have permitted them to test the
witnesses' reliability (see the Windisch judgment previously cited,
pp. 10-11, paras. 28-29).
(e) The investigating judge gave his reasoned opinion as to whether
the wish of the police officers to remain anonymous was justified;
these reasons were also found to be justified by the Court of Appeal
on the grounds set out in its judgment. Their shared opinion that the
accusations and events were such that fear of violent repercussions was
not unsubstantiated cannot be considered unreasonable. Article 6
(art. 6) does not guarantee an unlimited right to question witnesses.
It is necessary not only to recognise the discretion of the competent
domestic court in maintaining conformity with the exigencies of the
proper administration of justice, but also to balance the interests of
the defence under Article 6 (art. 6) against the interests of witnesses
protected by other substantive provisions of the Convention (see the
Doorson judgment previously cited, p. 470, para. 70). Although in the
Lüdi judgment (loc. cit., p. 21, para. 49) the Court considered the
interest of the police authorities in preserving the anonymity of their
agents "legitimate", greater weight should be given in this case, as
was done by the Court of Appeal, to the agents' interest in the
protection of their lives and safety and those of their families
(Articles 2, 3, 5 and 8 of the Convention) (art. 2, art. 3, art. 5,
art. 8).
(f) The defence were given ample opportunity to hear and question the
witnesses, and to comment on the recording of their answers, and in
fact made extensive use of that opportunity; the technical deficiencies
complained of were inconvenient and might perhaps have been avoided,
but, given especially the extensive time reserved for the hearings and
the detailed way in which the statements were recorded, these
deficiencies were not such as to hamper the defence to a significant
extent.
(g) The Court of Appeal did not exclude beforehand the possibility
that additional questions might be put to witnesses at the trial, but
was of the opinion that the defence had insufficiently substantiated
their wish to do so. Moreover, the defence were offered the
possibility to challenge the statements and their use as evidence in
open court before the Court of Appeal.
(h) The convictions were not based solely upon the statements of
anonymous witnesses. Although these were undoubtedly the core of the
evidence, there were also statements by identified witnesses, there was
some technical evidence and there was the recording of the
telephone conversation. In this respect, too, the Court should
recognise that "as a general rule it is for the national courts to
assess the evidence before them".
In the Doorson judgment, in which the criterion of "decisive
extent" was developed and applied (loc. cit., p. 472, para. 76), the
Court found that this criterion had been met in a situation where the
conviction was based, in addition to statements of anonymous witnesses,
on a statement made by an identified witness to the police but
retracted during the trial and a statement by an identified witness who
disappeared before the defence had had the opportunity to question him
(loc. cit., p. 472, para. 76, in conjunction with pp. 458-59,
para. 34).
In view of all these aspects of the case I come to the conclusion
that the trial which led to the applicants' conviction was "fair" in
the sense of Article 6 of the Convention (art. 6) as construed in the
Court's previous case-law.
Having stated my conclusion I wish, with due respect, to make the
following observations with regard to the reasoning on which the
majority bases its conclusion.
5. Like the majority, and in accordance with the case-law of the
Court, I take as my starting-point that evidence must normally be
produced at a public hearing. Therefore, I find in the abstract that
interrogation of the police officers at the trial before the
Court of Appeal, in disguise if necessary to protect their anonymity,
would have been preferable. However, I also take note of the opinion
of the Court of Appeal that this would have been too risky because
disclosure of the identity of the witnesses could not have been
excluded. I would have preferred it if the Court of Appeal had given
concrete arguments for that opinion. On the other hand, I lack the
expertise - as, I assume, do my colleagues in the Court - to judge
whether its fear was justified or not. Then again, one may well wonder
whether the defence would have been in a better position to observe the
witnesses' demeanour and test their reliability had they appeared in
disguise, given the fact that an effective disguise may also
substantially disguise the sound and intonation of the voice and the
body language of the person concerned. A national court may in general
be considered to be in a better position to judge such a complex and
factual issue than is our Court, which should substitute its judgment
for that of the national court only if the latter's judgment is
unreasonable. From the wording of the Doorson judgment it is clear
that in that case the Court recognised this primary responsibility of
the national court.
6. The fact that police officers were fired at in pursuit does not
necessarily mean that at a later stage, during or after the trial,
their lives and safety and/or those of their families were in danger.
However, on both points the national authorities - in this case the
national courts - should be left some latitude to balance the interests
of the defence against those of the witnesses (see the Doorson judgment
previously cited, p. 470, para. 71, where a reasonableness test was
applied). In my opinion the Court of Appeal has not overstepped the
mark in finding that the risk of disclosure of the identity of the
witnesses was present and that their fear for their lives and safety
or those of their families was justified in view of the seriousness of
the crimes committed and the violence used.
I disagree with the majority that the Court of Appeal failed to
make any real effort to assess the threat of reprisals. The
Court of Appeal had at its disposal the report of findings of the
investigating judge, in which the latter referred not only to the
statements made on this subject by the police officers concerned -
which were in some cases supported by previous experience
(paragraphs 17 and 21 of the judgment) - but also gave his own
evaluation, based upon the seriousness of the crimes and the violence
used by the perpetrators. Given these reasoned opinions of both the
investigating judge and the Court of Appeal, the latter of which was
reviewed by the Supreme Court, the Government were not called upon to
give an explanation of their own, as held by the majority
(see paragraph 60 of the judgment); nor in my opinion would the
Government have been in a position to do so.
In the Doorson judgment (loc. cit., pp. 470-71, para. 71) the
Court found that an actual threat against the witnesses was not
required for the decision to maintain their anonymity to be reasonable,
and that previous experience might be relevant. In the present case
it should also be taken into consideration that some of the witnesses
had been wounded while pursuing the robbers. Even if one were to take
the position that a certain risk is implicit in the profession of
police officer, that should not mean that the latter has to take
unnecessary risks and it certainly does not mean that the lives and
safety of his family deserve any less protection than that of other
persons. The "general duty of obedience to the State's executive
authorities" (see paragraph 56 of the judgment) owed by policemen
cannot imply that their lives and safety and those of their families
are any less worthy of protection. Therefore I cannot agree with the
majority that, for the sole reason that in the present case members of
the police force were involved, the case has to be distinguished from
that of Doorson as far as the balancing of the interests of the defence
against those of witnesses is concerned.
The fact that Mr Engelen, who had originally made a highly
incriminating statement, was not granted anonymity by the police and
nevertheless did not suffer any harm at the hands of the applicants
cannot be decisive in this context. The police may have made a mistake
in his case by revealing his identity, but in any case later events do
not automatically and retrospectively invalidate a reasonable
assessment of a risk. One can hardly blame a witness who expresses
serious fears for not waiting until something serious happens to him
or any other witness; the only criterion for the national court to
consider is the reasonableness of the fear.
7. I fail to see why policemen should be under a special duty to
give evidence in open court (see paragraph 56 of the judgment) since
this is a general civic duty prescribed by law. And even if one may
agree that the use of policemen as anonymous witnesses "should be
resorted to only in exceptional circumstances" (ibid.), one may argue
on the other hand that their anonymity should meet with fewer
objections from the point of view of the defence, because their
statements are statements by sworn professionals, whose identity and
investigative competence can easily be checked by the
investigating judge.
8. The majority also deal with the question whether "operational
needs" provided sufficient justification for preserving the anonymity
of the police officers. Reference is made in that context to the
explanatory memorandum of the Act of 11 November 1993 in which the
Netherlands Government indicate that in their opinion that interest can
be sufficiently protected by less far-reaching restrictions on the
rights of the defence. However, in my opinion that issue is of only
minor importance in the present case, since the Court of Appeal stated
in its judgment that, of the arguments advanced by the witnesses for
claiming anonymity, it considered the argument concerning the personal
safety of these witnesses and their families to be "decisive"
(see paragraph 26 of the judgment).
9. It cannot be denied - and indeed it has not been denied - that
the possibilities for the defence to interrogate the witnesses were not
without limitations. Nor are they always without limitations in normal
situations, where the identity of the witnesses is known to the
defence. The fact that certain questions were not answered by
witnesses and that this was accepted by the investigating judge may be
open to criticism but this would in all probability also have occurred
had the witnesses been interrogated in open court in some form of
disguise. It may therefore be questioned whether it was necessary and
proportionate to refuse to answer certain questions put by the defence
in order to protect the anonymity of the witnesses and the secrecy of
the police tactics. However, this question has to be answered
primarily by the competent domestic court, and indeed it was answered
in the affirmative by the investigating judge, and after his decision
was challenged by the defence before the Court of Appeal, by the latter
as well. On the whole, in my opinion, neither the limitations
necessitated by the situation nor those accepted by the
investigating judge were such as to warrant the finding that there was
no "adequate and proper opportunity to question the witnesses" as
required by the Court in its Kostovski judgment (loc. cit., p. 20,
para. 41). The handicaps under which the defence laboured were,
therefore, sufficiently counterbalanced by the procedures followed by
the judicial authorities (see the Kostovski judgment previously cited,
p. 21, para. 43, and the Doorson judgment previously cited, p. 472,
para. 76).
10. Finally, although the statements of the anonymous witnesses were
an essential part of the evidence, it cannot be said that the
convictions were based solely on these statements. Whether they were
based on these statements "to a decisive extent", as the majority holds
(paragraph 63 of the judgment), is hard to say. I share the opinion
expressed by the Delegate of the Commission at the Court's hearing that
this criterion, laid down in the Doorson judgment (loc. cit., p. 472,
para. 76), is difficult to apply, because if the testimony of anonymous
witnesses is used by the court as part of the evidence, that will
always be because the court considers it a "decisive" part of that
evidence, making the proof complete or at least sufficient. Here
again, the Court's finding that "as a general rule it is for the
national courts to assess the evidence before them" (paragraph 50 of
the present judgment) should prevail. Moreover, as already mentioned
(see paragraph 3 (h) above), in this respect the facts of the case
would not seem to differ substantially from those of the Doorson case.