THIRD SECTION

DECISION

Application no. 37617/10
Euclides CABRAL
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 28 June 2016 as a Chamber composed of:

Luis López Guerra, President,
Helena Jäderblom,
Johannes Silvis,
Dmitry Dedov,
Branko Lubarda,
Alena Poláčková,
Georgios A. Serghides, judges,

and Stephen Phillips, Section Registrar,

Having regard to the above application lodged on 25 June 2010,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Euclides Cabral, is a Netherlands national, who was born in 1987 and lives in Rotterdam. He is represented before the Court by Mr S.R. Bordewijk, a lawyer practising in Schiedam.

A. The circumstances of the case

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

1. Factual background

3. The applicant was charged with having, with an accomplice called V., robbed three supermarkets and with having, with two accomplices, mugged someone in the street outside a discotheque.

4. V. made statements to the police admitting his own participation in the supermarket robberies and implicating the applicant in all four crimes.

2. Proceedings before the Regional Court

5. The applicant was tried before the Rotterdam Regional Court (rechtbank). V. was summoned as a witness by the defence.

6. Being himself suspected of having taken part in the three supermarket robberies, V. had the right to refuse to give evidence, of which right he availed himself. Not being suspected of having taken part in the street mugging, V. could not refuse to give evidence about that crime; he made a statement to the effect that he had not personally witnessed the robbery but had heard from bystanders that it had been committed by a group that did not include the applicant.

7. V.’s statement disculpating the applicant of the street mugging was not believed by the public prosecutor (officier van justitie) and the court. V. was subsequently charged with perjury (meineed).

8. On 30 August 2006 the Regional Court gave judgment convicting the applicant of all four crimes. It sentenced him to four years’ imprisonment and ordered the execution of a suspended two-week sentence of juvenile detention (jeugddetentie) imposed on a previous occasion when the applicant was still a minor.

3. Proceedings before the Court of Appeal

9. The applicant lodged an appeal (hoger beroep) with the Court of Appeal (gerechtshof) of The Hague.

10. V. was again summoned as a witness by the defence. As relevant to the case before the Court, he kept silence on all four charges, including the street mugging in relation to which he was by this time being prosecuted for perjury.

11. The Court of Appeal gave judgment on 4 March 2008 convicting the applicant of all four charges. It sentenced the applicant to six years’ imprisonment and, as the Regional Court had done, ordered the execution of the two-week suspended sentence of juvenile detention. The evidence on which the convictions were based may be summarised as follows:

Charge No. 1 (a supermarket robbery on W. Street in Rotterdam, committed on 16 December 2005):The applicant’s admission that he had used, at the relevant time, a mobile telephone with a particular number;The supermarket manager’s report to the police that his supermarket had been robbed;V.’s confession to the police, in which the applicant was named;A statement made to the police by a security guard to the effect that the robbers (or one of them) had threatened him with a firearm;A statement made to the police by a cashier who had been forced at gunpoint to open her cash register, from which one of the robbers had snatched money and other goods;A statement to the police by an acquaintance of the applicant (one C.), naming the applicant and V. as the robbers;A report by a police investigator stating that the user of a telecommunication device with the number admitted to by the applicant (see item no. 1 above) had been in the vicinity of W. Street shortly before the robbery.

Charge No. 2 (a street mugging outside a discotheque in Rotterdam, committed on 21 January 2006):Statements made by the applicant, both to the police and at the hearing, to the effect that he had been present in the discotheque into the small hours on 21 January 2006, that he had parked his car outside, and that he had two gold teeth;A statement made to the police by the victim of the mugging, to the effect that three men – one of whom had two gold teeth—had robbed him at gunpoint of money, some jewellery and a watch outside that discotheque;A statement made to the police by V. to the effect that he had witnessed three men, the applicant among them, robbing a person;A police report stating that the mugging had been reported by three persons, one of them its victim and another a witness who had taken down the registration number of the getaway car. The car registration number corresponded to the applicant’s car.

Charge No. 3 (a supermarket robbery on P. Square, Rotterdam, committed on 8 December 2005):The supermarket manager’s report to the police that his supermarket had been robbed;A statement made to the police by a cashier who had been forced at gunpoint to hand over money from her cash register by two armed men wearing balaclava helmets for disguise;A police report dated the day after the robbery stating that the supermarket manager had handed him a grey balaclava helmet found nearby. The balaclava helmet was very similar in appearance to that worn by one of the armed robbers, which could be seen on security camera footage recording the robbery. The balaclava helmet had been secured for DNA testing;Police reports identifying a match between DNA contained in traces of saliva found on the balaclava helmet and the DNA of the applicant;V.’s confession to the police, in which the applicant was named;A statement made by the applicant at the appeal hearing to the effect that he had sometimes worn a grey balaclava helmet underneath a crash helmet.

Charge No. 4 (a supermarket robbery on L.H. Road, Rotterdam, committed on 19 January 2006):The supermarket manager’s report to the police that his supermarket had been robbed;A statement made to the police by a cashier who had been forced at gunpoint to open her cash register, from which one of the robbers had snatched money and other goods;V.’s confession to the police, in which the applicant was named.

4. Proceedings before the Supreme Court

12. The applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad). As relevant to the case before the Court, he complained under Article 6 § 3 (d) of the Convention of the use made by the Court of Appeal of V.’s statements to the police to ground his convictions even though V. had refused to answer the questions of the defence under cross-examination.

13. The Advocate General (advocaat-generaal) submitted an advisory opinion (conclusie) analysing the case-law of the Court, in particular the Chamber judgment Al-Khawaja and Tahery v. the United Kingdom, nos. 26766/05 and 22228/06, 20 January 2009, and expressing the view that V.’s evidence was “sole or decisive” in respect of Charge No. 4 but not in respect of Charges Nos. 1, 2 and 3, for which sufficient other evidence was available.

14. On 5 January 2010 the Supreme Court gave judgment dismissing the applicant’s appeal on points of law. Referring to its own case-law (its judgment of 6 June 2006, ECLI:NL:HR:2006:AV1633, Netherlands Law Reports (Nederlandse Jurisprudentie, “NJ”) 2006, no