AS TO THE ADMISSIBILITY OF
by Joost VAN VONDEL
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 23 March 2006 as a Chamber composed of:
Mr B.M. Zupančič,
Mr J. Hedigan,
Mrs M. Tsatsa-Nikolovska,
Mr V. Zagrebelsky,
Mr E. Myjer,
Mr David Thór Björgvinsson,
Mrs I. Ziemele, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 28 November 2003,
Having deliberated, decides as follows:
The applicant, Joost van Vondel, is a Netherlands national who was born in 1954 and lives in Leeds (United Kingdom). Between 1 January 1989 and 1 August 1994, he worked as a “runner”1 for the Kennemerland Regional Criminal Intelligence Service (Regionale Criminele Inlichtingendienst – “RCID”). He was represented before the Court by Mr G. Spong, a lawyer practising in Amsterdam.
A. The circumstances of the case
The facts of the case, as submitted by the applicant and derived from public documents, may be summarised as follows.
1. General background
(a) The evolution of criminal investigation services in the Netherlands
The development of crime in the Netherlands in the early seventies necessitated closer co-operation at regional and national level between criminal investigation authorities, as well as the preventive, as opposed to reactive, gathering and storing of information about criminal activities.
To this end, criminal investigation departments of certain larger municipal police forces (gemeentepolitie) and in districts of the national police force (rijkspolitie) became more active in gathering information for the purposes of fighting crime. They did so by deploying methods such as observation, exploration of the criminal world and active coaching (“running”) of informers. These methods of investigation developed into specialist activities, mostly pursued by a “Criminal Intelligence Service” (Criminele Inlichtingen Dienst – “CID”) within each distinct police force. As a result, these various CIDs lacked uniformity in their structure and mission.
In order to remedy the problem a CID Regulation (CID Regeling) – setting out the tasks and activities of CIDs – and CID Privacy Rules (CID-Privacyreglement) – setting out the rules governing the storage, processing and provision of information – were issued on 29 May 1986. The 1986 CID Regulation provided for a CID in each of the 148 municipal police forces, each of the 17 districts of the national police force, the national river police force (rijkspolitie te water) and the national police aviation service (dienst luchtvaart rijkspolitie). The mission of these CIDs was to gather, record and provide criminal intelligence at local level, that is to say, concerning persons residing or active within their respective areas of jurisdiction.
Of these 167 CIDs, 23 were further designated as a Regional Criminal Intelligence Service (Regionale Criminele Inlichtingendienst – “RCID”), which – apart from their “local area intelligence” mission – also had an additional “regional area intelligence” mission and the tasks of connecting, co ordinating, analysing and assisting. The Central Criminal Investigation Information Service (Centrale Recherche Informatiedienst – “CRI”) was assigned the task of maintaining a national CID (Landelijke Criminele Inlichtingendienst – “LCID”), responsible for recording criminal intelligence of national or international significance, keeping a CID-subject index (containing entries on all persons forming the subject of CID attention and activities), recording CID actions involving more than one region, and recording interregional information, as well as analysing, advising and assisting.
As a result of the 1993 reorganisation of the Netherlands police into 25 regional police forces and a National Police Agency (Korps Landelijke Politiediensten), the distinction between local and regional CIDs ceased to exist. However, the task of local CIDs, namely the gathering of intelligence by locally operating units within the districts, remained unaffected.
In the early 1990s serious concerns arose about certain special methods of criminal investigation used in the fight against organised crime, especially those used by the Noord-Holland/Utrecht Interregional Criminal Investigation Team (Interregionaal Recherche Team – “IRT”). The mission of the IRT, which had been established in December 1988, was to combat organised crime through concerted activities of different regional police forces. The methods of criminal investigation used by the IRT gave rise to serious criticism, in particular certain practices such as the payment of considerable sums of money to informers, controlled deliveries of large narcotics shipments with the result that the narcotics reached the market, and the use of infiltrators. The use of the so-called "Delta method" was one of the reasons which eventually led to the disbandment of the Noord-Holland/Utrecht IRT.
This “Delta method” consisted of using informers, under the direction of the police and the prosecution department, which provided criminal organisations with facilities. These informers were used by the police in order to gather information about the functioning of a criminal organisation. The informers, including persons working in the transport industry, had contacts in one form or another with members of criminal organisations. They would inform the police of the expected arrival of a container in which drugs were concealed. The police would ensure that this container was not checked by the customs authorities and that it had proper import documents and clearance. The police would then proceed to check the contents and weigh the drugs found. These drugs would subsequently be transported by the informer to the location indicated by the criminal organisation. Such drugs could then either be seized by the police or deliberately left unhindered in order to protect the informer, and thus allow an increase in his prestige in the criminal organisation or the trust placed in him. In the latter case the drugs were allowed to reach the market. However, in some cases the police lost track of the drugs as not all deliveries could be placed under observation. The informers were paid for their activities by the criminal organisations and did not have to surrender this income to the police. The aim of the Delta method was to gain an insight into the distribution network and the persons in charge of a criminal organisation.
(b) The parliamentary inquiry into criminal investigation methods
On 26 January 1994 the Minister of Justice (Minister van Justitie) and the Minister of the Interior (Minister van Binnenlandse Zaken) informed the Lower House of Parliament (Tweede Kamer der Staten-Generaal) of the disbandment in December 1993 of the Noord-Holland/Utrecht IRT.
Following a debate on 7 April 1994 in the Lower House on the IRT’s disbandment, the Lower House adopted a motion to conduct a parliamentary inquiry (parlementaire enquête) into the criminal investigation methods used in the Netherlands and the control exercised over such methods.
After the adoption in the Lower House on 25 May 1994 of another motion in connection with these controversial investigation methods, both the Minister of the Interior and the Minister of Justice resigned.
A preliminary report drawn up on 21 October 1994 by a working party composed of five Lower House parliamentarians recommended that a formal parliamentary inquiry be conducted. This recommendation was accepted by the Lower House on 16 November 1994. On 6 December 1994 the parliamentary commission of inquiry on criminal investigation methods (parlementaire enquêtecommissie opsporingsmethoden – “PEC”) was instituted. It was composed of nine Lower House parliamentarians and was given the task of inquiring into:
the nature, seriousness and scope of serious organised crime;
the factual application, lawfulness, justification and effectiveness of methods of criminal investigation; and
the organisation, functioning and supervision of criminal investigation.
The PEC conducted an extensive inquiry, which lasted for about one year. Between January and May 1995 documents were collected and examined and preliminary interviews with more than 300 persons were held. The PEC had subsequent informal, confidential “private conversations” (besloten gesprekken) with a total of 139 persons – of which verbatim records were drawn up – in order to broaden its understanding of the issues involved, to select the persons and experts to be heard in public, and to prepare these public hearings. On the basis of these documents, interviews and conversations, the PEC made a selection of persons whom it wished to hear. Those interviews and “private conversations”, which were all held on a voluntary basis, were of a confidential nature and the PEC gave an undertaking that, unless consent was given by the person concerned, it would not use any direct citations.
Between 6 September and 9 November 1995, the PEC held 93 public hearings during which 88 persons gave evidence, including the applicant who was heard twice. These public hearings were directly broadcast on national television. It did not conduct any witness or expert hearings in camera.
The PEC presented its final report containing its findings and recommendations on 1 February 1996. It concluded that there was a crisis in the field of criminal investigation which comprised three main elements; namely the absence of adequate legal norms for investigating methods used in respect of organised crime, a criminal investigation system that was not functioning properly in that it involved too many separate organisations with little or no co-ordination of their activities, resulting in unclear decision-making as regards competences and responsibilities, and problems with power structures in that the prosecution department did not always have or exercise sufficient authority over the police.
The PEC report has had a great impact on the organisation of criminal investigation in the Netherlands and has formed the basis of a number of changes to the Netherlands Code of Criminal Procedure, including the Preliminary Judicial Investigations (Review) Act (Wet herziening gerechtelijk vooronderzoek) and the Special Investigative Powers Act (Wet bijzondere opsporingsbevoegdheden) which entered into force on 1 February 2000, amending the legal rules on powers and coercive measures in criminal investigations.
(c) The fact-finding inquiry by the “Fort-team”
In April 1995, with the permission of the Minister of Justice and under the responsibility and direction of the public prosecution service (Openbaar Ministerie), a special team of the National Criminal Investigation Department (Rijksrecherche), the so-called “Fort-team”, started a broad fact-finding inquiry into the manner in which the Kennemerland Regional Criminal Intelligence Service (Regionale Criminele Inlichtingendienst – “RCID”) operated between 1990 and 1995, in particular its use of special investigation methods which were not dissimilar to those having been used by the Noord-Holland/Utrecht IRT. The mission of the Fort-team was as follows: “To carry out, as thoroughly as possible, a fact-finding inquiry into the activities, functioning and working methods of the Kennemerland RCID from 1990 to date. In so doing, particular attention must be paid to the use of special investigation methods. In addition, the responsibilities of both the police and the public prosecution service for the RCID and RCID operations must be mapped out. The inquiry is to result in a report containing findings and recommendations.”
It was agreed with the Minister of Justice and the Minister of the Interior that the Chair and Vice-Chair of the PEC would be kept informed from the outset of this inquiry of the findings of the Fort-team. It was to be a fact-finding exercise, primarily aimed at drawing lessons from the facts found.
The functioning of the Kennemerland RCID during the period under investigation by the Fort-team had already been the subject of a number of previous inquiries by the Kennemerland regional police force and by the National Criminal Investigation Department. The results of the previous inquiries were incorporated into those of the Fort-team inquiry, which covered a multitude of aspects related to the practical functioning of the Kennemerland RCID, including its involvement in a number of specific activities, such as a “fruit-juice channel” – a controlled-delivery channel involving the transport of narcotics concealed in fruit-juice concentrates.
In the course of its inquiry, 250 persons gave evidence, 40 of whom more than once. The persons heard included higher officials of the police and public prosecution department, police officers involved in criminal investigations, police informers and other civilians. The applicant and his former superior Mr Langendoen also gave evidence to the Fort-team. All persons heard by the Fort-team were given an undertaking that their statements would not be used, without their consent, in any criminal investigation.
According to the final report issued by the Fort-team on 29 March 1996, it had had contacts – from the start of its inquiry –with Mr R., a Belgian fruit-juice producer who during the relevant period had acted as an informer for the Kennemerland RCID and who had been “run” by the applicant. Mr R. had contacted the CRI in April 1995 and had declared that, since the end of 1991, he had been in contact with the applicant and subsequently with the latter’s colleague Mr Langendoen. From the end of 1991 Mr R. had provided the applicant with information about the production of fruit-juice concentrates in Morocco and their transport to the Netherlands. After Mr R. had set up a fruit-juice factory in Belgium in 1992, he had met Mr Langendoen, whom he initially knew under a pseudonym. At the request of the applicant and Mr Langendoen, Mr R. had set up the fruit-juice factory Delta Rio in Ecuador. Although the applicant and Mr Langendoen had invested millions of Netherlands guilders in both the Belgian and Delta Rio factories, they decided in September 1994 that the Delta Rio factory was to be closed down and sold. Mr R., who did not understand this decision, started to distrust the applicant and Mr Langendoen and decided to inform the CRI about the matter. The CRI subsequently brought Mr R. into contact with the National Criminal Investigation Department.
The final report of the Fort-team further states that, during its inquiry, the statements given by Mr R. had, as far as possible, been verified by the use of observations, audio devices and documents and that inquiries had been made as to whether and, if so, why the applicant and Mr Langendoen had financially supported the factory in Belgium and had the Delta Rio factory in Ecuador set up.
Although reports by the National Criminal Investigation Department are generally not public, the report of the Fort-team was rendered public given the attention this inquiry, against the background of the PEC inquiry, had attracted. Its main conclusions comprised, inter alia, the following elements:
- the Kennemerland RCID was to be characterised as a disorganised service, in which no direction was given and where no substantive control whatsoever was exercised;
- in the Kennemerland RCID, basic rules on the “running” of informers and infiltrators had been breached frequently and on a large scale;
- the police force command had seriously fallen short in the exercise of its responsibility over the RCID in that the commander, his deputy and the head of the criminal investigation division were not or hardly aware of the particulars of RCID activities;
- the scope of the CID work had for a long time been seriously underestimated by the Haarlem public prosecution department;
- between 1991 and 1995 the RCID chief Langendoen and his (ex )collaborator (the applicant) had, with a high degree of probability, spent over five million Netherlands guilders from an undocumented source, thus giving rise to the impression that the money had criminal origins;
- the spending of this money had not been subjected to any form of control;
- the RCID chief Langendoen had consequently disregarded his duty to inform and give explanations to his superiors and the public prosecution department on essential points, and he had intentionally misinformed his superiors as well as the National Criminal Investigation Department;
- since at least 1991 the Kennemerland RCID had used the method of controlled drug deliveries;
- the relevant police commanders and public prosecutors had only controlled the application of this method by the Kennemerland RCID to a limited extent;
- Mr Langendoen and the applicant had set up a CID operation in Ecuador wholly independently (without informing their superiors or the public prosecution department) and in this so-called “fruit-juice channel” all rules applicable to CID activities had been breached;
- the most plausible explanation for the “fruit-juice channel” was the wish to set up an infrastructure for controlled narcotics shipments and it had remained unclear what purpose this channel still served after the IRT had been disbanded and for what purposes major investments were still being made;
- the statements given by Mr Langendoen and the applicant before the PEC about the funds invested in the “fruit-juice channel” were, on important points, in contradiction with the findings made in the inquiry of the National Criminal Investigation Department;
- the conducting of CID operations abroad (Morocco, Ecuador, the United Kingdom, Belgium), without informing the foreign authorities, had violated the sovereignty of these countries, making it subservient to domestic investigation interests;
- it had not appeared that killings in the criminal world could be attributed to the Kennemerland RCID‘s practice of “running” informers or to the targeting of such informers;
- after the IRT’s disbandment, on several occasions serious threats against Mr Langendoen had formed the topic of conversation, but it had appeared after investigation that there was nothing concrete behind these threats; yet it was noteworthy that these threats coincided with moments when Mr Langendoen was called to account explicitly for far-reaching CID activities;
- moreover, after having left the police force, the applicant had maintained contacts with at least four informers and had – in cooperation with former colleagues – transported drugs through police-controlled channels and accepted money of criminal origin; and
- no explanation had been found for a number of actions by Mr Langendoen and the applicant and they themselves had never given a reasonable explanation; the question whether they had been active, within the limits of the rule of law, in fighting crime or, whether, intentionally or unintentionally, they had participated in that same criminal activity could not be answered.
2. The proceedings in which the applicant was involved
On 9 October 1995, immediately after Mr Langendoen’s appearance, the applicant gave evidence under oath at a public hearing before the PEC. On 30 October 1995, the PEC had a “private conversation” with Mr R., who was referred to in the verbatim record of this conversation as “Juice-man” (“Sapman”). On 2 November 1995, directly after Mr Langendoen’s second appearance, the PEC also took evidence from the applicant in public for a second time.
Although, in the course of its inquiry, the Fort-team had requested the applicant to give a statement on a number of occasions, he did so only once, namely shortly before his second PEC hearing, and briefly in the context of the inquiry into the “fruit-juice channel”, and refused further cooperation.
On 31 January 1996 the PEC transmitted to the chief public prosecutor of The Hague a formal record of perjury (proces-verbaal van meineed) in relation to the applicant and his former superior Mr Langendoen concerning various parts of their statements before the PEC, namely those parts concerning the question of payments to Mr R.
On an unspecified date, the applicant was ordered to appear before the Regional Court (arrondissementsrechtbank) of The Hague to stand trial on charges of repeated perjury before the PEC and of repeatedly, that is to say, on different occasions between 25 April 1996 and 11 June 1996, having sought to intimidate Mr R. when the applicant knew or had serious reason to assume that a statement from him would be sought in the context of the PEC inquiry.
In its judgment of 8 April 1998, following hearings on 24 and 25 March 1998, the Regional Court convicted the applicant as charged and sentenced him to six months’ imprisonment. Both the applicant and the prosecution lodged an appeal with the Court of Appeal (gerechtshof) of The Hague.
In a judgment of 5 March 2002, following nine hearings between 14 November 2000 and 19 February 2002 and in the course of which Mr R. had given evidence to the Court of Appeal on 17 January 2001, the Court of Appeal quashed the judgment of 8 April 1998, convicted the applicant of repeated perjury before the PEC (in respect of three parts of the statements he had made at hearings before the PEC) and of repeatedly having sought to intimidate the (potential) witness Mr R. It acquitted the applicant of the remaining charges and sentenced him to three months’ imprisonment, suspended pending a two-year probationary period.
The Court of Appeal rejected the applicant’s argument that his statements before the PEC had not been made freely and, consequently, had been obtained in violation of the principle of nemo tenetur (the right not to be compelled to provide self-incriminating evidence and thus to contribute to one’s own conviction). It further rejected his argument that the prosecution should be declared inadmissible on account of unlawful actions on the part of the PEC. The Court of Appeal did not find it established that the PEC had had unlawful access to information originating from the Fort-team inquiry or that the PEC had acted unlawfully towards Mr R. in making available the verbatim record of its “private conversation” with Mr R. In so far as the defence made allegations of unlawful acts on the part of the public prosecutor, the Court of Appeal noted that the public prosecutor, before bringing criminal proceedings against the applicant, had sought and obtained permission from Mr R. to use his statements to the Fort-team in evidence and that, in the charges brought against the applicant which – contrary to the PEC’s formal record of perjury – were contained in a public document, the identity of Mr R. was not disclosed as only his initials were used. It attached no decisive value to the fact that the public prosecutor had failed to obtain Mr R.’s prior permission to use in evidence the verbatim record of his “private conversation” with the PEC, as the content of this conversation – in comparison with the numerous other statements given by Mr R. – hardly contained any new facts.
As regards the inquiry by the Fort-team, the Court of Appeal noted that the tasks of the National Criminal Investigation Department included carrying out inquiries into the manner in which police officers used their statutory powers, and that, in accordance with Article 19 § 3 of the 1993 Police Act (Politiewet) in conjunction with section 2 of the Order on the functions of special-duty police officers (Taakbeschikking bijzondere ambtenaren van politie) of 25 March 1994 (Official Gazette – Staatscourant – 1994, no. 64), the prosecutor-general (Procureur-Generaal) can instruct the National Criminal Investigation Department to carry out an inquiry, which may concern acts of an individual police officer or the functioning of a particular police force unit. After an extensive analysis of the mission of the Fort-team and the manner in which its inquiry had evolved, the Court of Appeal found no reasons for holding that this inquiry should be regarded as a covert criminal investigation or that, in the course of this inquiry, the applicant should have been regarded as a criminal suspect in connection with the “fruit-juice channel”.
The Court of Appeal also rejected the applicant’s argument that the recording of his (telephone) conversations with Mr R. had infringed his rights under Article 8 of the Convention. It found it established that, in the course of nine hearing sessions between 2 June 1995 and 7 March 1996, Mr R. had made statements to the Fort-team about the “fruit-juice channel”, that four face-to-face conversations (between April and August 1995) and four telephone conversations (between July and August 1995) between the applicant and Mr R. had been recorded by Mr R., that he had done so on a voluntary basis and with the aid of devices provided by the Fort-team as his allegations were initially disbelieved and that, only in respect of one particular conversation, Mr R. had received specific instructions as to what information should be obtained from the applicant, namely an admission of payments by him to Mr R.
The Court of Appeal held that, according to domestic case-law, the mere tape-recording of a (telephone) conversation without the permission (or knowledge) of the conversation partner did not, in itself, entail a violation of that conversation partner’s right to respect for privacy; for that to be the case, additional circumstances were required. In the instant case, these additional circumstances were that a number of conversations had been recorded, including the applicant’s contributions to those conversations. In addition, the (telephone) conversations had been conducted by the applicant as the former “runner” of a (former) police informer about matters having occurred during the period in which the applicant “ran” Mr R. as informer and the winding-up of that relationship. As these conversations – in any event on the part of the applicant – were of an exclusively professional nature and content, the Court of Appeal held that, in view of domestic case-law on this point, this allowed no other conclusion than that the applicant’s private life did not come into play in respect of the recorded (telephone) conversations at issue. It further held that Mr R.’s recourse to a recording device – and Mr R. had been entirely free to decide whether or not to activate it as well as to make the recordings available to the Fort-team – had mainly been prompted by Mr R.’s need to substantiate his account of the “fruit-juice channel” in order to be believed. The Court of Appeal therefore considered that it could not be said that there had been interference on the part of the authorities in respect of the recording. It only accepted the existence of such interference in breach of Article 8 § 1 in respect of the one recorded conversation for which Mr R. had received explicit instructions, to the extent that this conversation related to matters falling within the applicant’s sphere of privacy.
In the opinion of the Court of Appeal, these findings were not altered by the fact that the Fort-team, for its part, had an interest in recording the conversations for the purposes of verifying information relevant to its fact finding inquiry, provided by Mr R., about the involvement in the “fruit juice channel” of staff attached to the Kennemerland RCID, the unit concerned by the Fort-team inquiry. The court found it relatively obvious that this verification, in view of the accounts of the inquiry in subsequent reports, had taken place in the form of tape-recordings and the preparation of transcripts and, in this connection, recalled its finding that the inquiry was not to be regarded as a (covert) criminal investigation.
It concluded as follows:
“As to the tape-recordings, the recorded conversations took place between a former runner of the Kennemerland RCID and a (former) informer about matters relating exclusively to that relationship. The defence has been provided with the opportunity to question [Mr R.] as well as the criminal investigation officers who were involved. The authenticity of the recordings has not been disputed by the defence. Furthermore, the tape-recordings do not constitute the sole evidence on which a conviction of [the applicant] could be based.
The unlawfulness of the interference on the part of the authorities is founded solely on the absence of a ‘statutory authority for the interference’, because the Netherlands have not provided for a statutory regulation of a fact-finding inquiry. And that sole observation, taking into account that the interference on the part of the National Criminal Investigation Service consisted merely of the ‘rehearsing’ of a future conversation desired by Mr R., cannot lead to excluding as evidence the tape-recording concerned.”
The applicant’s subsequent appeal in cassation, in which he raised a total of 15 grievances, was rejected by the Supreme Court (Hoge Raad) on 8 July 2003. In so far as the applicant, relying on Article 6 of the Convention, complained that the Court of Appeal had unjustly rejected his argument that his statements before the PEC had not been made freely and had, consequently, been obtained in violation of the principle of nemo tenetur, the Supreme Court held:
“5.3.1. It is implicit in Article 6 of the Convention, on which the [applicant] relies, that when there is a ‘criminal charge’ within the meaning of this provision against a suspect, the latter has the right ‘to remain silent’ and ‘not to incriminate himself’. This entails that under certain circumstances the use in criminal proceedings of statements by a suspect, obtained from him at a moment when there was not (yet) a criminal charge but which were given in response to questions in respect of which he was under a statutory obligation to reply, may be in violation of the provisions of Article 6 of the Convention (see European Court of Human Rights, Saunders v. the United Kingdom, judgment of 17 December 1996).
5.3.2. The present case concerns a suspect in respect of whom it has been found established that he, before the PEC in the context of a parliamentary inquiry, intentionally and under oath made a false statement. The applicable procedure for such an inquiry is provided for in the Parliamentary Inquiries Act (Wet op de Parlementaire Enquête). Pursuant to this Act, witnesses are obliged to comply with a summons from the PEC and they are obliged to answer the questions put to them. The PEC can hear witnesses under oath. A failure to appear or the refusal to answer questions put by the PEC can result in criminal proceedings being brought against the witness concerned. It is provided in Article 24 of the Parliamentary Inquiries Act that statements made before or upon instructions of the PEC cannot be used in evidence, either against the person who has given them or against a third party, except in case of perjury.
The Parliamentary Inquiries Act does not provide for a right to refuse to give evidence (verschoningsrecht) for the witness who by answering a question exposes himself to prosecution in criminal proceedings.
5.4. [The applicant’s present cassation complaint] is based on the argument that the (perjured) statement given by the [applicant] as a witness before the PEC was made under duress and that, consequently, the rights under Article 6 of the Convention as referred to in 5.3.1. above have been breached. To the extent that, in this context, the point of departure is that a witness to be heard before the PEC in a [parliamentary] inquiry procedure is entitled to the guarantees under Article 6 of the Convention, it misjudges that this procedure does not fall within the scope of Article 6 as it does not entail a ‘determination of a criminal charge’.
In so far as [the applicant argues that] Article 6 of the Convention opposes the use in evidence in the instant criminal proceedings of the (perjured) statement given by [the applicant] before the PEC, this also fails. This Convention provision seeks – in so far as relevant here – to guard a suspect from a conviction based on statements made by him under duress about his involvement in any criminal offence and not to protect a suspect who, as in the instant case, before there was a ‘criminal charge’, intentionally gave an untruthful statement and thereby committed a criminal offence.
5.5. It follows from the above that the Court [of Appeal] correctly rejected this argument ...”
The Supreme Court dismissed the applicant’s complaint under Article 8 in respect of the recording by Mr R. of their (telephone) conversations. The Supreme Court held:
“The complaint does not provide grounds for overturning the ruling of the Court of Appeal (kan niet tot cassatie leiden). Having regard to Article 81 of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie), no further reasoning is called for, since the complaint does not give rise to a need for a determination of legal issues in the interest of legal unity or legal development.”
B. Relevant domestic law and practice
Pursuant to Article 3 § 2 of the 1850 Parliamentary Inquiries Act (Wet op de Parlementaire Enquête – “the Act”), all persons residing in the Netherlands are obliged to comply with a summons to appear before a parliamentary commission of inquiry in order to be heard as a witness or expert. In case a person fails to comply with a summons to appear, the commission may issue an order for the person concerned to be brought before it (bevel tot medebrenging) within the meaning of Article 13 of the Act. The commission may require such witnesses to take the oath or make a solemn affirmation that they will state the whole truth and nothing but the truth (Article 8 §§ 1 and 2 of the Act). Such a witness is further entitled to be assisted by a lawyer when being heard by a parliamentary commission of inquiry (Article 8(a) § 1 of the Act), although the commission may, for serious reasons, decide to hear a witness without such assistance (Article 8(a) § 2 of the Act).
Pursuant to Articles 10, 15 and 16 of the Act, failure to appear before the commission or a refusal to answer questions may give rise to criminal proceedings for the offence defined in Article 192 of the Criminal Code (Wetboek van Strafrecht). A failure to comply with a request by a parliamentary commission of inquiry to make documents available constitutes an offence under Article 192(a) of the Criminal Code. A parliamentary commission of inquiry can further seek a judicial commitment order (gijzeling) against a witness or expert who refuses to comply with his or her obligations under the Act (Article 17 of the Act).
Although in principle witnesses and experts are heard in public by a parliamentary commission of inquiry, it may decide for serious reasons to conduct the hearing or a part thereof in camera (Article 18(a) §§ 1-2 of the Act). In such a situation, the members and substitute members of the parliamentary commission of inquiry are bound to secrecy in respect of what has come to their knowledge during such a hearing in camera (Article 18(a) § 3 of the Act).
Unlike the situation in criminal proceedings, persons heard by a parliamentary commission of inquiry do not have the right to remain silent. The only persons who enjoy the privilege of non-disclosure before a parliamentary commission of inquiry are those who – by virtue of their office, their profession or their position – are bound to secrecy, but only in relation to matters the knowledge of which has been entrusted to them in that capacity (Article 19 of the Act) or in case disclosure of secret information would entail disproportionate damage to the exercise of the profession of the person concerned or to the interest of his or her company or the company for which he or she works or has worked (Article 18 of the Act).
Article 24 of the Act provides that, with the exception of the situation referred to in Article 25, statements given to a parliamentary commission of inquiry can never be used in evidence in judicial proceedings against the person having given such statements or against any third party. This reflects the principle that the purpose of a parliamentary inquiry is to find out the truth about facts and events having taken place in the past and not to determine personal liabilities under civil or criminal law.
Article 25 of the Act provides, inter alia, that perjury (meineed) on the part of a witness heard by a parliamentary commission of inquiry attracts the penalties provided for in the Criminal Code for giving false testimony in civil proceedings. It further provides that the written record of the hearing concerned constitutes legal evidence.
The applicant complained that the procedure before the PEC infringed Article 6 of the Convention as it did not allow persons appearing as witnesses before that Commission to rely on the privilege against self-incrimination or the right to silence. According to the applicant, the absence of a right to refuse to give evidence in hearings before the PEC had denied him a fundamental right protecting him from committing perjury or from exposing himself to the danger of being prosecuted in criminal proceedings. Consequently, his obligation to give information to the PEC, exercising its powers under the Parliamentary Inquiries Act, and his subsequent prosecution and conviction of perjury, had amounted to a violation of Article 6.
The applicant further complained under Article 8 of the Convention of the recording of his telephone conversations and conversations during private meetings with Mr R., who had been provided by the National Criminal Investigation Department (Rijksrecherche) with recording devices and had been given suggestions about the substance of the conversations to be held, such that he would find ways of making the applicant admit that he had provided money to Mr R., as this would demonstrate that the applicant, during the period in which he worked as a criminal investigation official, had used unacceptable methods of investigation.
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. ...”
The Court is required to determine at the outset whether the impugned proceedings before the PEC fall within the scope of Article 6, that is to say whether they entailed a determination of the applicant’s “civil rights and obligations” or “a criminal charge” against him within the meaning of Article 6 § 1 of the Convention.
The Court notes that the applicant was called as a witness in parliamentary inquiry proceedings, the aim of which was to investigate criminal investigation methods used in the Netherlands in cases concerning organised crime and the supervision of such methods. According to the Court’s case-law, the concept of “civil rights and obligations” under Article 6 § 1 of the Convention is “autonomous” and cannot be interpreted solely by reference to the domestic law of the respondent State (see Ferrazzini v. Italy [GC], no. 44759/98, § 24, ECHR 2001 VII). The Court further reiterates that there may exist obligations vis-à-vis the State or its subordinate authorities which, for the purpose of Article 6 § 1, are to be considered as belonging exclusively to the realm of public law and are accordingly not covered by the notion of ‘civil rights and obligations’. This will be the case, in particular, where an obligation is part of normal civic duties in a democratic society (see Editions Périscope v. France, judgment of 26 March 1992, Series A no. 234 B, p. 66, § 40).
The Court finds that the obligation at issue, namely to appear and give truthful evidence before a parliamentary commission of inquiry – which is of crucial importance for the adequate operation of a parliamentary scrutiny mechanism in a democratic society – is to be regarded as forming part of such normal civic duties. Consequently, the proceedings before the PEC in the instant case cannot be regarded as falling within the scope of Article 6 under its civil head.
As to the question whether these proceedings entailed a determination of a “criminal charge”, the Court has found no reason for holding that the inquiry conducted by the PEC in any way amounted to a disguised form of criminal proceedings directed against the applicant. It concerned a broad inquiry into controversial methods of criminal investigation used in cases concerning organised crime and, moreover, Article 24 of the Parliamentary Inquiries Act explicitly prohibits the use of statements made before the PEC as evidence in criminal proceedings. This is not altered by the fact that subsequent criminal proceedings were brought against the applicant, as that is irrelevant to the question whether the proceedings before the PEC, as such, determined a criminal charge (see I.P. v. Austria, no. 17072/90, Commission decision of 29 June 1992). The Court therefore finds that the proceedings before the PEC also fall outside the scope of Article 6 under its criminal head (see Montera v. Italy (dec.), no. 64713/01, 9 July 2002).
It follows that this part of the application must be rejected for being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4 of the Convention.
To the extent that the applicant seeks to complain of the subsequent impact of his having testified before the PEC, namely the institution of criminal proceedings on, inter alia, charges of perjury before the PEC, the Court reiterates its established case-law to the effect that, although not specifically mentioned in Article 6 of the Convention, the rights invoked by the applicant – the right to silence and the right not to incriminate oneself – are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without recourse to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right in question is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention (see Weh v. Austria, no. 38544/97, § 39, 8 April 2004).
The right not to incriminate oneself is primarily concerned with respect for the will of an accused person to remain silent in the context of criminal proceedings and with the use made of compulsorily obtained information in criminal prosecutions. However, not every measure taken with a view to encouraging individuals to give the authorities information must be regarded as improper compulsion. It does not per se prohibit the use of compulsory powers to require persons to provide information about, for instance, their financial assets even though a penalty may be attached to a failure to do so (see Allen v. the United Kingdom (dec.), no. 76574/01, ECHR 2002 VIII) or, in the context of the present case, compulsory powers to require persons to provide information to a parliamentary commission of inquiry, as it would be difficult to envisage such a commission functioning effectively without such powers.
Noting the prohibition set out in Article 24 of the Parliamentary Inquiries Act, the Court cannot find that, to the extent that the applicant’s evidence before the PEC might have been of a self-incriminating nature or might have incriminated others, such disclosure would have exposed him or any other person to a risk of criminal prosecution on the basis of such evidence.
In so far as relevant for the present case, the applicant was charged with and convicted of having committed perjury before the PEC. In other words, he lied or perjured himself through giving untruthful information to the PEC. This was not an example of forced self-incrimination before the PEC relating to an offence which he had previously committed; it was the offence itself. It may be that the applicant lied in order to prevent revealing conduct which, in his perception, might possibly be criminal and lead to prosecution. However, the right to silence and not to incriminate oneself cannot be interpreted as giving a general immunity to actions motivated by the desire to evade investigation. Thus, the present case is not one concerned with the use of compulsorily obtained information in subsequent criminal proceedings. Consequently, the Court does not find that the facts of this case disclose any infringement of the right to silence or privilege against self-incrimination or that there has been any unfairness contrary to Article 6 § 1 of the Convention in respect of the criminal proceedings brought against the applicant.
It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
“1. Everyone has the right to respect for his private ... life ... and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Court is of the opinion that this complaint must be brought to the notice of the Netherlands Government in accordance with Rule 54 § 2 (b) of the Rules of Court, inviting the Government to submit written observations on the admissibility and merits of this complaint.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint under Article 8 concerning the recording of his conversations with Mr R.;
Declares the remainder of the application inadmissible.
Vincent Berger Boštjan M. Zupančič
1 “Runners” are police officers who serve as coach and contact person for civilians acting as police informers or having infiltrated criminal organisations.