European Court of Human Rights

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32271/04
by Bart POPPE
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 21 October 2008 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura-Sandström,
Corneliu Bîrsan,
Alvina Gyulumyan,
Ineta Ziemele,
Ann Power, judges,
Pieter van Dijk, ad hoc judge,

and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 1 September 2004,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the fact that Mr E. Myjer, the judge elected in respect of the Netherlands, withdrew from sitting in the case (Rule 28) and that the respondent Government accordingly appointed Mr P. van Dijk to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1),

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Bart Poppe, is a Netherlands national who was born in 1966 and lives in Amsterdam. He is represented before the Court by Mr A.A. Franken, a lawyer practising in Amsterdam. The respondent Government are represented by their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry for Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

A. Circumstances of the case

1. The first-instance proceedings

In April 2000 the applicant was arrested on suspicion of various drug-related offences. He was subsequently charged – as co-actor (medepleger) in a group of eight persons – with trafficking “hard” drugs, preparation of the offence of drug trafficking, handling, and participation in a criminal organisation. In addition, he was separately charged with the unlawful possession of a firearm.

The applicant's trial was due to start before the Haarlem Regional Court (arrondissementsrechtbank) on 1 March 2001. By that time, the applicant had become aware that a number of co-accused had already been tried and convicted by the same tribunal. In the proceedings against his co-accused C1, C2, C3 and C4 the Regional Court had included the same president, X, and senior judge (oudste rechter), Y, who were to sit on the bench that dealt with his case. Prior to the hearing, counsel for the applicant wrote a letter to the president of the trial chamber, requesting him and the senior judge to stand down because of their involvement in the trials of those co-accused. X and Y did not stand down, and on the day of the hearing a formal challenge application (wrakingsverzoek) was lodged on behalf of the applicant. The Challenge Chamber (wrakingskamer) dismissed the application, considering that the mere fact that two members of the trial chamber had convicted a number of co-accused of offences relating to the offences with which the applicant had been charged, did not as such entail that those members were biased in the criminal proceedings against the applicant. According to the Challenge Chamber, the arguments adduced by counsel for the applicant did not admit of the conclusion that the judges concerned had already formed an opinion on any role which the applicant might have played in the commission of those offences, and neither did they reveal any extraordinary circumstances indicating bias against the applicant on the part of those judges or indicating that the applicant's fear of bias was objectively justified.

On 15 March 2001, the Regional Court found the applicant guilty of the charges against him, except for the charge of handling of which he was acquitted. Taking into account that the applicant had not played a prominent role but rather a facilitating one within the organisation, the Regional Court sentenced him to three years' imprisonment.

2. The proceedings in appeal

The applicant lodged an appeal with the Amsterdam Court of Appeal (gerechtshof). In the course of these proceedings, the complete judgments rendered by the Haarlem Regional Court in the cases against the co-accused C3 and C4 became available – only abridged versions, not containing the evidence relied on by the Regional Court, having been available at the time of the applicant's trial by the Regional Court. The applicant referred to these complete judgments in support of his argument that the Regional Court had lacked impartiality due to the fact that X and Y had participated in the trials against the co-accused. The Regional Court's judgment concerning co-accused C3 included the following considerations:

“D was the pivot (spil) of the organisation in the Netherlands, whose aim it was to import and export 'hard' drugs. C, [the applicant] and W were D's confidants in this context, with the latter making use of the facilities and/or services with which these three could provide him...

As far as the export of amphetamine is concerned, D was also the organiser of this and C3 the financier. C2 supplied the drugs, while K, [the applicant] and H carried out the actual work.”

The judgment concerning co-accused C4 included the following:

“The duo D-C4 constituted the pivot of the organisation. ... C and [the applicant] were confidants of D, with the latter making use of the facilities and/or services with which these two could provide him.”

In the course of a hearing held on 23 April 2002, the Court of Appeal rejected the applicant's plea for the case to be referred back to the Regional Court. Examining whether the applicant's fear of a lack of impartiality of judges X and Y could be objectively justified, it held:

“Unlike what has been adduced by counsel, no such objective justification can be found in the earlier considerations of the Regional Court. Those earlier considerations do not, after all, entail that the examination in the present case of the reproach made of [the applicant] in respect of participation in the same criminal organisation and of involvement in the import and export of 'hard' drugs, in particular amphetamine, was anticipated. It is the normal, statutory task of the judge ... only to rule on the basis of the indictment and further to the trial of the accused, excluding from his consideration his decisions reached in other cases of other accused.

Special circumstances constituting a compelling indication to find that a fear held by [the applicant] may be objectively justified are not contained in counsel's arguments or in the circumstances that have otherwise appeared. The finding relating to [the applicant] as expressed in the earlier judgments is not so specific and/or has not been motivated in such a way as to lead to a different conclusion. ...

It is also relevant that there is no indication that the Regional Court has in any way felt itself bound by the findings of the previous judgments when dealing with and deciding on the case of [the applicant]. In particular it has not been argued, and the Court of Appeal fails to see, that the Regional Court has based its judgment in any way on any decision taken in those earlier judgments. On the contrary, it appears from the case file that the Regional Court examined [the applicant's] case in its entirety, without even one of the questions which the Regional Court had to answer being considered as having been dealt with in the earlier judgments. This is in particular also the case in respect of the questions whether [the applicant] participated in the criminal organisation referred to in the indictment and whether he was involved in the import and export of 'hard' drugs and in particular of amphetamine.”

The Court of Appeal held a hearing on the merits of the case on 26 November 2002. Asked to state the reasons why he had lodged his appeal, the applicant replied that he had not been wrongly convicted but considered the sentence excessive.

On 10 December 2002 the Court of Appeal gave judgment. It quashed the judgment of the Regional Court and convicted the applicant of being a co-actor in the offences of drug trafficking and participation in a criminal organisation. The conviction was based on the applicant's confessions before police and in open court and on other evidence, namely transcripts of recorded telephone conversations, official reports of police observation and of the interception in transit of quantities of illegal narcotics, and statements of co-accused. The applicant was again sentenced to three years' imprisonment.

In the meantime, on 17 September 2001, a differently composed bench of the same Court of Appeal, in the criminal proceedings against the applicant's co-accused C3, accepted that C3 had an objectively justified fear of bias on the part of the first-instance court. That first-instance court – the Haarlem Regional Court – had held in its judgments relating to three co-accused that C3 “[had] maintained the contacts abroad and also provided the necessary finances.”

3. The proceedings in appeal on points of law

The applicant lodged an appeal on points of law with the Supreme Court (Hoge Raad). He submitted that the decision of the Court of Appeal to dismiss his arguments relating to the lack of impartiality of the Regional Court and the refusal to refer his case back to the Regional Court was contrary to Article 6 of the Convention. He further contended that he had been deprived of the opportunity to have his case considered by an impartial tribunal in first instance, which made the trial as a whole unfair.

On 18 May 2004 the Supreme Court upheld the appeal on points of law because the length of proceedings had exceeded a reasonable time. It therefore quashed the judgment of the Court of Appeal, but only in respect of the sentence, which was reduced by two months to two years and ten months. The Supreme Court rejected the applicant's arguments relating to the alleged bias on the part of judges X and Y.

B. Relevant domestic law

An appeal can only be lodged against the first-instance judgment in its entirety, although cases joined at first instance can be disjoined at the appeal stage (Article 407 of the Code of Criminal Procedure). The appeal proceedings 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). The defence enjoys the same rights as it does at first instance (Article 415).

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention that he did not have a fair trial in that, in the criminal proceedings against him, two judges of the Regional Court were not impartial as they had previously dealt with cases concerning a number of co-accused of the applicant and had, in the judgments concerning those co-accused, set out that, and in what way, the applicant was involved in the criminal offences at issue. He submitted that his case ought to have been remitted to the Regional Court for retrial like that of his co-accused C3.

THE LAW

The applicant claimed to have been a victim of a violation of Article 6 § 1 of the Convention in that he had been tried at first instance by a tribunal that was not “impartial”.

In relevant part, Article 6 § 1 provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

1. Argument before the Court

The Government submitted that although the Regional Court judgments given against the applicant's co-accused C3 and C4 named the applicant as an associate, he was mentioned only a few times and no detailed description was given of the extent or nature of the applicant's involvement in the crimes committed. In these circumstances, there was no reason to hold that the participation in the applicant's trial of two of the Regional Court judges who had previously tried the two co-accused justified doubts as to the impartiality of the Regional Court when it tried the applicant. They also relied on considerations of judicial efficiency, suggesting that if the Court were to make it impossible for judges to try members of criminal organisations together then the workload of the courts would be multiplied.

The applicant argued that the references to him and his involvement in the crimes contained in the judgments convicting C3 and C4 were both sufficiently numerous and sufficiently specific to constitute objective justification for his fears of bias. He relied on, in particular, Ferrantelli and Santangelo v. Italy, judgment of 7 August 1996, Reports of Judgments and Decisions 1996 III. Invoking De Cubber v. Belgium, judgment of 26 October 1984, Series A no. 86, p. 19, § 33, he argued that the Court of Appeal had failed to remedy the situation of which he complained because it had not quashed the first-instance judgment on that ground; the only appropriate form of redress, in his submission, would have been for the case to be remitted to the Regional Court for retrial like the case of his co-accused C3.

2. The Court's decision

The Court considers, in the light of the parties' submissions, that the present case raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

In the circumstances of the present case the Court finds it appropriate to discontinue the application of Article 29 § 3 of the Convention.

For these reasons, the Court, by a majority,

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares the application admissible, without prejudging the merits.

Santiago Quesada Josep Casadevall
Registrar President