CASE OF POPPE v. THE NETHERLANDS
(Application no. 32271/04)
24 March 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Poppe v. the Netherlands,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Ann Power, judges,
Pieter van Dijk, ad hoc judge,
and Stanley Naismith, Deputy Section Registrar,
Having deliberated in private on 3 March 2009,
Delivers the following judgment, which was adopted on that date:
I. CIRCUMSTANCES OF THE CASE
A. The first-instance proceedings
B. The proceedings in appeal
“D was the linchpin (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 linchpin 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.”
“Contrary to 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 become apparent. The finding relating to [the applicant] as expressed in the earlier judgments is not so specific and/or has not been reasoned 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.”
C. The proceedings in appeal on points of law
II. RELEVANT DOMESTIC LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
Article 6 § 1 of the Convention, in the relevant part, 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.”
The Government disputed the applicant's allegations.
1. Argument before the Court
2. The Court's assessment
FOR THESE REASONS, THE COURT
Holds by six votes to one that there has been no violation of Article 6 § 1 of the Convention.
Done in English, and notified in writing on 24 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep Casadevall
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Gyulumyan is annexed to this judgment.
DISSENTING OPINION OF JUDGE GYULUMYAN
I regret that I am unable to subscribe to the majority's opinion that there has been no violation of Article 6 §1 of the Convention in this case.
As the majority rightly observe in respect of judges' impartiality, even appearances may be of a certain importance, in other words, “justice must not only be done, it must also be seen to be done” (see Dorozhko and Pozharskiy v. Estonia, nos. 14659/04 and 16855/04, § 52, 24 April 2008; Micallef v. Malta, no. 17056/06, § 75, 15 January 2008; and De Cubber v. Belgium, 26 October 1984, § 26, Series A no. 86).
I consider that there was at least an appearance of a lack of impartiality on the part of the judges X and Y, who took part in the applicant's first-instance trial and had previously delivered judgments against the applicant's co-accused C3 and C4 in which the applicant was named as a person involved in the crimes concerned.
I accept the approach of the majority in examining the judgments handed down by the Regional Court to the applicant's co-accused C3 and C4, but I cannot agree with the finding that in both judgments “the names of the applicant and others are mentioned in passing” and that “there is no specific qualification of the involvement of the applicant or of acts committed by him, criminal or otherwise”.
The Regional Court's judgments concerning the applicant's co-accused C3 and C4 contained numerous references to the acts committed by the applicant, particularly the judgment in the case of C3 which included the following statement:
“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.”
I believe that referring to the applicant's carrying out the actual work in a criminal organisation is a specific description, even a qualification, of the involvement of the applicant and of the acts committed by him.
These circumstances are sufficient to hold the applicant's fears as to the lack of impartiality of the judges concerned to be objectively justified.
The re-hearing of the applicant's case on appeal did not cure the problem because the Court of Appeal did not recognise the procedural violation and make reparation for it (see De Cubber v. Belgium, cited above, § 33).
To complete the picture, I should add that in the same circumstances a differently composed bench of the same Court of Appeal accepted that the applicant's co-accused C3 had an objectively justified fear of bias on the part of the first-instance court. The fact that the Court of Appeal reached a different conclusion in a case similar to his could reasonably give rise to feelings of injustice on the part of the applicant.