BAEGEN v. THE NETHERLANDS



              EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 16696/90

                  Wilhelmus Elisabert Baegen

                            against

                       the Netherlands

                   REPORT OF THE COMMISSION

                 (adopted on 20 October 1994)

                       TABLE OF CONTENTS

                                                          Page

I.   INTRODUCTION

     (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

     A.   The application

          (paras. 2-4). . . . . . . . . . . . . . . . . . . .1

     B.   The proceedings

          (paras. 5-11) . . . . . . . . . . . . . . . . . . .1

     C.   The present Report

          (paras. 12-16). . . . . . . . . . . . . . . . . . .2

II.  ESTABLISHMENT OF THE FACTS

     (paras. 17-61) . . . . . . . . . . . . . . . . . . . . .3

     A.   The particular circumstances of the case

          (paras. 17-44). . . . . . . . . . . . . . . . . . .3

     B.   Relevant domestic law

          (paras. 45-61). . . . . . . . . . . . . . . . . . .7

III. OPINION OF THE COMMISSION

     (paras. 62-82) . . . . . . . . . . . . . . . . . . . . 10

     A.   Complaint declared admissible

          (para. 62). . . . . . . . . . . . . . . . . . . . 10

     B.   Point at issue

          (para. 63). . . . . . . . . . . . . . . . . . . . 10

     C.   As regards Article 6 of the Convention

          (paras. 64-81). . . . . . . . . . . . . . . . . . 10

          CONCLUSION

          (para. 82). . . . . . . . . . . . . . . . . . . . 13

CONCURRING OPINION OF Mr. H. DANELIUS JOINED BY

MM. F. ERMACORA, G.B. REFFI AND B. CONFORTI . . . . . . . . 14

DISSENTING OPINION OF Mr. C.A. NØRGAARD JOINED BY MM. A. WEITZEL,

A.S. GÖZÜBÜYÜK, J.-C. SOYER, F. MARTINEZ, C.L. ROZAKIS,

Mrs. J. LIDDY, MM. J. MUCHA, E. KONSTANTINOV AND D. SVÁBY . 15

DISSENTING OPINION OF Mr. E. BUSUTTIL JOINED BY

Mr. L. LOUCAIDES. . . . . . . . . . . . . . . . . . . . . . 16

APPENDIX I   : HISTORY OF THE PROCEEDINGS . . . . . . . . . 18

APPENDIX II  : DECISION OF THE COMMISSION AS TO THE

               ADMISSIBILITY OF THE APPLICATION . . . . . . 19

I.INTRODUCTION

1.   The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before

the Commission.

A.   The application

2.   The applicant is a Dutch citizen, born in 1957. He resides

at Utrecht, the Netherlands. He was initially represented before

the Commission by Mr. A.J.W. Woudstra, who was succeeded by

Mr. W.K. Anema, both lawyers in Utrecht.

3.   The application is directed against the Netherlands. The

respondent Government were represented by their Agent,

Mr. H.A.M. von Hebel of the Netherlands Ministry of Foreign

Affairs.

4.   The case concerns the alleged unfairness of criminal

proceedings against the applicant. The applicant complains, in

particular, that he could not examine in person the main witness

- the victim - who wished to remain anonymous. The applicant

invokes Article 6 paras. 1 and 3 (d) of the Convention.

B.   The proceedings

5.   The application was introduced on 6 April 1990 and

registered on 11 June 1990.

6.   On 13 January 1993, the Commission decided, pursuant to Rule

48 para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite them to

submit written observations on its admissibility and merits.

7.   The Government's observations were submitted on

16 April 1993.  The applicant replied on 30 July 1993 after an

extension of the time-limit.

8.   On 29 November 1993, the Commission declared the application

admissible.

9.   The text of the Commission's decision on admissibility was

sent to the parties on 20 December 1993. They were invited to

answer additional questions put by the Commission and to submit

any further observations.

10.  The applicant's replies to the Commission's additional

questions were submitted on 1 March 1994, after an extension of

the time-limit fixed for this purpose. The Government's replies

were submitted on 2 March 1994, after an extension of the

time limit. The Government submitted further observations by

letter of 10 May 1994.

11.  After declaring the case admissible, the Commission, acting

in accordance with Article 28 para. 1 (b) of the Convention, also

placed itself at the disposal of the parties with a view to

securing a friendly settlement. In the light of the parties'

reactions, the Commission now finds that there is no basis on

which such a settlement can be effected.

C.   The present Report

12.  The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations

and votes, the following members being present :

     MM.  C.A. NØRGAARD, President

          S. TRECHSEL

          A. WEITZEL

          F. ERMACORA

          E. BUSUTTIL

          G. JÖRUNDSSON

          A.S. GÖZÜBÜYÜK

          J.-C. SOYER

          H.G. SCHERMERS

          H. DANELIUS

     Mrs. G.H. THUNE

     MM.  F. MARTINEZ

          C.L. ROZAKIS

     Mrs. J. LIDDY

     MM.  L. LOUCAIDES

          J.-C. GEUS

          M.P. PELLONPÄÄ

          G.B. REFFI

          M.A. NOWICKI

          I. CABRAL BARRETO

          B. CONFORTI

          N. BRATZA

          J. MUCHA

          E. KONSTANTINOV

          D. SVÁBY

          G. RESS

13.  The text of this Report was adopted on 20 October 1994 by

the Commission and is now transmitted to the Committee of

Ministers of the Council of Europe, in accordance with Article

31 para. 2 of the Convention.

14.  The purpose of the Report, pursuant to Article 31 of the

Convention, is :

     (i)  to establish the facts, and

     (ii) to state an opinion as to whether the facts found

          disclose a breach by the State concerned of its

          obligations under the Convention.

15.  A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I, and the

Commission's decision on the admissibility of the application as

Appendix II.

16.  The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.  ESTABLISHMENT OF THE FACTS

A.   The particular circumstances of the case

17.  On 1 February 1986, Ms. X. reported to the Utrecht Municipal

Police (gemeentepolitie) that two men had raped her in a station

wagon when bringing her home from the nightclub H., where the

three had met. When she arrived home at approximately 05.30 a.m.,

her mother immediately called the police who came to Ms. X.'s

home. Ms. X. stated that the men had told her not to report the

rape to the police and not to speak about it to anyone, and that

they would know where to find her in case she did. For fear of

reprisals Ms. X. requested to remain anonymous.

18.  Ms. X. gave two statements to the police on 1 February 1986:

the first at 05.50 a.m., and the second at 07.15 a.m. Both

statements were reported in procès-verbaux. Ms. X. stated that

she had met the two men, who were unknown to her, in nightclub

H. when the two men joined the group of people she was talking

to, that at approximately 04.15 a.m. the two men offered to take

her home, which offer she accepted. She further stated that she

could not sit in the back of the car since that space was

occupied with utensils, and had to sit in front with the two men.

She stated that she had been raped after an initial attempt to

escape, during which attempt she fell and lost a shoe, and that

afterwards she did not dare to offer any resistance.

19.  The police officers who had the first contact with Ms. X.

reported in their procès-verbal that after they had arrived at

Ms. X.'s home, they found Ms. X. crying and very upset.

20.  On 1 February 1986, the police recorded a statement from

Ms. X.'s mother who related what her daughter had told her about

the previous night. The mother also told the police that when

Ms. X. had come home around 05.30 a.m., she had been crying and

had been very upset and that her clothes had been covered with

mud. The mother stated further that, together with a friend, she

had found her daughter's shoe on the spot where her daughter had

said she had lost it.

21.  Both Ms. X. and her mother wished to remain anonymous, but

their particulars were known to the police. The applicant alleges

that his lawyer discovered the identity of Ms. X. by coincidence

through a conversation with a colleague, who had a client

suspected of rape as well. The applicant alleges that in both

cases the (alleged) victim was Ms. X. The exact date of this

discovery is not known but lies between 24 September 1986 and

17 December 1986 (cf. para. 38 below).

22.  Also on 1 February 1986, a medical examination of Ms. X. was

carried out and some of her clothes were taken in for

examination. Traces of semen were found on Ms. X.'s underpants

and panty-liner, which would enable a determination of the blood

type of the presumed rapist.

23.  On 10 February 1986, the applicant was arrested and detained

in police custody on suspicion of having raped Ms. X. On the same

day, he was shown to Ms. X. through a two-way mirror. She

identified him as the man who had raped her. When questioned by

the police on 10, 11, 12 and 13 February 1986, the applicant

claimed to be innocent. He stated, inter alia, that on

1 February 1986 he had gone to the nightclub H. alone and had

left the place alone. He denied having seen K., a friend of his,

in the nightclub that night.

24.  On 12 February 1986, Ms. X. made another statement to the

police. She reiterated her accusation against the applicant but

stated she did not remember whether or not the second man had

also raped her.

25.  Also on 12 February 1986, the applicant and Ms. X. had a

face to face confrontation before the police. Ms. X. identified

the applicant again as being one of the two rapists. She said

that she recognised not only his appearance but also his voice.

The applicant later stated to the police that he had never seen

Ms. X. before.

26.  On 13 February 1986, the applicant was released.

27.  On 14 February 1986, the police examined a third witness,

Y., who also wished to remain anonymous for fear of reprisals.

The particulars of this witness were known to the police.

Y. stated to the police that on 1 February 1986 (s)he was in the

cloakroom of the nightclub H. at approximately 04.00 a.m., and

that (s)he saw that the applicant, whom (s)he knew by name, and

another man, whom (s)he later found out was named K., took a

woman with them when they left the nightclub. Y. also stated that

(s)he heard the applicant say to K.: "We'll take her with us and

afterwards we'll throw her out somewhere" ("We nemen haar mee en

dan gooien wij haar daarna wel er ergens uit."), or words to that

effect. Y. stated that (s)he had the impression that Ms. X. was

drunk or at least very tipsy. The police showed photographs to

Y. from which (s)he identified Ms. X., the applicant and K.

28.  On 23 February 1986, K. was arrested and detained in police

custody as co-suspect in the rape of Ms. X. The next day K. was

shown to Ms. X. through a two-way mirror. Ms. X. stated that K.

resembled the second man but that she was not sure whether K. was

the second man. The police questioned K. on 24 and

25 February 1986. Following an initial denial, he stated on

25 February that on 1 February 1986 he and the applicant went to

nightclub H. together, that they started talking with some other

people, among whom Ms. X., and that after some time the applicant

said to him that they would leave and that Ms. X. would go with

them. K. further stated that the three of them got into the

applicant's station wagon, that Ms. X. sat in the front seat of

the car, and that there was fishing equipment on the back seat.

K. denied having raped Ms. X. He confirmed that the applicant and

Ms. X. had had intercourse in the car in his presence, but stated

that Ms. X. had acted of her own free will. K. was released on

26 February 1986.

29.  On 25 March 1986, the police asked the applicant whether he

wanted to undergo a blood and saliva test. The applicant refused

to submit to such tests.

30.  On 12 May 1986, the public prosecutor (officier van

justitie) requested the opening of a preliminary judicial

investigation (gerechtelijk vooronderzoek).

31.  In this context, the investigating judge (Rechter-

Commissaris) heard Y. under oath on 16 July 1986. The

investigating judge was unaware of Y.'s identity. Y. confirmed

the statement made to the police on 14 February 1986. The

investigating judge recorded in the procès-verbal of this hearing

that the witness wanted to remain anonymous for fear of reprisals

and that this fear was well-founded. The procès-verbal of this

hearing was sent to the applicant's lawyer.

32.  On 24 July 1986, the applicant was heard by the

investigating judge. He maintained that he had nothing to do with

the rape he was accused of, that he had gone to the nightclub H.

alone and had left alone, and that he had offered no one a ride.

33.  On 4 August 1986, the investigating judge heard K., who

repeated his statement made to the police. He added that his

mother knew Ms. X.'s mother, who had told K.'s mother that she

had been angry that her daughter had returned home so late. He

stated that he thought Ms. X. had made up the story about being

raped in order to have an excuse for her late homecoming.

34.  In a letter of 25 August 1986 to the investigating judge,

the applicant's lawyer objected to the possibility that his

client might be convicted on the basis of statements made by Y.,

whose wish for anonymity for fear of reprisals was unfounded. At

the same time, he submitted a list of questions to be put to Y.

by the investigating judge.

35.  On 28 August 1986, the investigating judge heard Ms. X.

under oath, as there were reasons to assume that she would not

appear at a court session for fear of reprisals, which the

investigating judge considered well-founded. The investigating

judge was not aware of Ms. X.'s identity. Ms. X. confirmed her

statements to the police. On 28 August 1986, the procès-verbal

of the questioning of Ms. X. was sent to the applicant's lawyer,

who was invited to submit any additional questions to be put to

Ms. X. The applicant's lawyer acknowledged the receipt of the

procès-verbal by letter of 1 September 1986, but did not submit

such questions.

36.  At the request of the applicant's lawyer, the investigating

judge, following an initial refusal, heard Y. again on

14 October 1986. The investigating judge was still not aware of

Y.'s identity. On that occasion, Y. replied to the written

questions of the applicant's lawyer. Of the seven questions the

applicant's lawyer had formulated, five were answered, while a

sixth one had already been answered by Y. at the hearing on

16 July 1986. One question was not answered because it would have

revealed Y.'s identity.

37.  After the preliminary judicial investigation had been

closed, the public prosecutor notified the applicant on

14 November 1986 that he would continue the prosecution

(kennisgeving van verdere vervolging) and commit the applicant

for trial.

38.  By letter of 17 December 1986, the applicant's lawyer

informed the public prosecutor that, should his client be

committed for trial, he intended to submit to the Regional Court

(Arrondissementsrechtbank) the case-file concerning a certain

Mr. E., who was suspected of having raped a person on

24 September 1986, who - according to the applicant's lawyer -

was Ms. X. In that case-file, the identity of the victim was

disclosed. The applicant's lawyer further wrote that, should the

public prosecutor have any objections to the submission of the

case-file of Mr. E. to the Regional Court, he would request the

reopening of the preliminary judicial investigation, in order to

hear a number of witnesses.

39.  On 31 August 1987, the applicant was summoned to appear

before the Regional Court of Utrecht on 2 October 1987. Before

the Regional Court he denied all charges. At no point in the

proceedings before the Regional Court the applicant or his lawyer

requested to hear any witnesses. On 16 October 1987, the Regional

Court convicted the applicant of rape and sentenced him to

12 months' imprisonment.

40.  On 20 October 1987, the applicant filed an appeal with the

Court of Appeal (Gerechtshof) of Amsterdam. On 2 September 1988

the applicant's lawyer submitted the case-file concerning

Mr. E. to the Court of Appeal.

41.  The Court of Appeal heard the case on 6 September 1988. The

applicant maintained his innocence. In his pleadings the

applicant's lawyer requested the Court of Appeal to suspend its

hearing or to refer the case back to the investigating judge in

order to have Ms. X. re-examined. Referring to the case-file on

the criminal proceedings against Mr. E., he challenged the

reliability of Ms. X.'s statements. The applicant's lawyer

considered that in the case of Mr. E. it clearly appeared from

several statements by witnesses that Ms. X. was known for

approaching men in a sexually explicit manner.

42.  In its judgment of 20 September 1988, the Court of Appeal

quashed the judgment of the Regional Court for technical reasons,

convicted the applicant of rape, and sentenced him to 12 months'

imprisonment. It rejected the request of the applicant's lawyer

to suspend the hearing or to refer the case back to the

investigating judge in order to have Ms. X. re-examined,

considering that it had been sufficiently informed. The court

based its conviction on the following means of evidence:

-    the two statements Ms. X. made to the police on

     1 February 1986;

-    the statement Ms. X. made to the police on 12 February 1986

     following her face-to-face confrontation with the

     applicant;

-    the statement Ms. X. made to the investigating judge on

     28 August 1986;

-    the statement co-accused K. made to the police on

     25 February 1986;

-    the statement Ms. X.'s mother made to the police on

     1 February 1986;

-    the reports of the police officers who had questioned

     Ms. X. on 1 and 12 February 1986.

43.  In its judgment the court stated, inter alia:

     "Het hof heeft de verklaringen van de anonieme getuige

     met behoedzaamheid gebezigd en op hun betrouwbaarheid

     getoetst aan de hand van de overige bewijsmiddelen."

     "The court has used the statements of the anonymous

     witness with cautioun and has assessed their

     reliability in the light of the other means of

     evidence."

44.  The applicant's appeal in cassation of 20 September 1988 was

rejected by the Supreme Court (Hoge Raad) on 10 October 1989. It

held that the anonymity of Ms. X. did not make her statements

unreliable and that her anonymity - as the victim of the offence

of which the applicant had been found guilty - was no obstacle

to the admissibility of her statements as evidence.

B.   Relevant domestic law

45.  Section 168 of the Dutch Code of Criminal Procedure (Wetboek

van Strafvordering, hereinafter referred to as "CCP") states that

each Regional Court has one or more investigating judges to whom

criminal cases are entrusted. They are nominated from amongst the

members of the Regional Court.

46.  It is open to the public prosecutor, under Section 181 CCP,

to request what is called - in order to distinguish it from the

subsequent investigation at the trial - a preliminary judicial

investigation (gerechtelijk vooronderzoek).

47.  It is the task of the investigating judge to conduct such

an investigation. The investigating judge must act impartially,

by also collecting evidence which might exculpate the accused.

The investigating judge will hear the accused, witnesses, and

experts as soon as possible and as often as is required (Section

185 CCP). Both the public prosecutor and defence counsel are, in

principle, entitled to be present at those hearings (Sections 185

para. 2 and 186 CCP) and, if they are absent, to give notice of

questions they wish to have asked. Procès-verbaux are drawn up

of all the activities of the investigating judge.

48.  The preliminary judicial investigation provides a basis for

a decision by the prosecution authorities with regard to the

further prosecution of an accused, and also serves to clarify

matters which cannot properly be investigated at the trial. The

investigating judge will close the preliminary judicial

investigation when it is completed. Both the accused and the

public prosecutor will be informed about the closure of the

preliminary judicial investigation (Section 237 CCP). They can

request the investigating judge to reopen it (Section 238 CCP).

49.  If the public prosecutor finds that the results of the

preliminary judicial investigation justify further prosecution,

he will notify the accused (kennisgeving van verdere vervolging)

and commit the accused for trial.

50.  As regards the evidence in criminal proceedings, Section 338

CCP provides that the finding that the accused has committed the

act with which he is charged may be made by a judge only if he

has been so convinced through the investigation at the trial, by

the contents of "legal means of evidence" (wettige

bewijsmiddelen). The latter consist, according to Section 339

CCP, exclusively of (i) the judge's own observations; (ii)

statements made by the accused; (iii) statements made by a

witness; (iv) statements made by an expert; and (v) written

documents.

51.  Evidence in the third category is defined in Section 342

CCP, which reads:

     "1.  A statement by a witness is understood to be his

     statement, made in the investigation at the trial, about

     facts or circumstances which he himself has seen or

     experienced.

     2.   The judge cannot accept as proven that the accused has

     committed the act with which he is charged, solely on basis

     of the statement of one witness."

52.  Evidence in the fifth category is defined in Section 344

CCP, which, as far as is relevant, reads:

     "1.  Written documents are understood to be:

          1° ...;

          2° official reports and other documents, drawn up in

          the lawful form by bodies and persons who have the

          proper authority and containing their statement about

          facts or circumstances which they themselves have seen

          or experienced;

          3° ...;

          4° ...;

          5° all other documents; but these are valid only in

             conjunction with the content of other means of

             evidence.

     2.   (...)."

53.  In the great majority of criminal cases in the Netherlands,

witnesses are not heard at the trial, but by the police and/or

the investigating judge. This is to a considerable extent due to

a leading judgment of the Supreme Court of 20 December 1926

(Nederlandse Jurisprudentie 1927, nr. 85). According to this

judgment it is permissible to use as "legal means of evidence"

statements made by a witness not at the trial but before a police

officer or the investigating judge, provided they are recorded

in an official report which is read out in court.

54.  Although the investigating judge must ask the witness for

his particulars (Section 190 CCP) and the witness must answer

this question (Section 221 CCP), whilst this answer is recorded

in a procès-verbal, the Supreme Court has accepted procès-verbaux

containing statements by anonymous witnesses as legal means of

evidence (cf. Hoge Raad, judgment of 25 September 1984,

Nederlandse Jurisprudentie 1985, no. 426; Hoge Raad, judgment of

12 November 1985, Nederlandse Jurisprudentie 1986, no. 409).

55.  As regards the calling of witnesses, the accused can -

according to Section 263 CCP - at the latest three days before

the court hearing, request that the public prosecutor summon a

witness before the court. As a rule, the public prosecutor

summons the witness, but - according to Section 263 para. 4 CCP -

he can refuse to do so if it must be reasonably assumed that the

accused cannot be harmed in his defence if the witness is not

heard before the 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 reasons for this

decision and must inform the accused immediately in writing about

his refusal. He must furthermore inform the accused that at the

court hearing the accused can repeat his request to summon this

witness.

56.  Section 280 CCP provides that when the public prosecutor has

failed or refused to summon a witness at the request of the

accused, the accused can ask the court to summon that witness.

In that case the court orders that the witness be summoned,

unless it finds that the non-appearance of this witness cannot

reasonably damage the defence of the accused. ("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" - Section 280 para. 4

CCP).

57.  Under Section 315 CCP the court has the power to summon

witnesses of its own accord, if the court finds it necessary to

question a witness who has not yet been heard in court ("Indien

aan de rechtbank de noodzakelijkheid blijkt van het verhoor van

op de terechtzitting nog niet gehoorde getuigen [...]").

58.  Section 414 CCP provides that in proceedings before the

Court of Appeal, the Procurator-General (Procureur-Generaal) and

the accused can summon witnesses and that Section 263 paras. 2-4

CCP applies by analogy.

59.  Pursuant to Section 415 CCP, Sections 280 and 315 apply by

analogy to the proceedings before the Court of Appeal.

60.  When the accused has not requested the public prosecutor or

the Procurator-General to summon a witness before the court in

accordance with Sections 263 or 414 CCP, the accused can, at the

court session itself, request the court to hear a witness. In

that case the court decides on the request on the basis of the

criteria contained in Section 315 CCP (para. 57 above).

61.  After its decision in the present case, and following the

judgment of the European Court of Human Rights in the Kostovski

case (judgment of 20 November 1989, Series A no. 166), the

Supreme Court defined the conditions under which statements of

an anonymous witness may be used in evidence. According to these

conditions such a statement must have been taken by a judge who

is aware of the identity of the witness; in the procès-verbal of

the hearing of such a witness, the judge must have expressed his

opinion as to the reliability of the witness and as to the

reasons for the wish of the witness to remain anonymous; and the

judge must provide the defence with the opportunity to put

questions or have questions put to this witness (Hoge Raad,

judgment of 2 July 1990, NJ 1990, no. 692). The Supreme Court

stated that these conditions are not absolute, and that under

certain circumstances a statement of an anonymous witness that

does not meet all the criteria can be used in evidence.

III. OPINION OF THE COMMISSION

A.   Complaint declared admissible

62.  The Commission has declared admissible the applicant's

complaint under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d)

of the Convention that he did not have a fair trial in that he

was convicted on the basis of declarations of an anonymous

witness, whom neither he nor his lawyer had the opportunity to

question directly.

B.   Point at issue

63.  The point at issue is accordingly whether there has been a

violation of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of

the Convention.

C.   As regards Article 6 of the Convention

64.  Article 6 paras. 1 and 3 of the Convention, insofar as

relevant, reads:

     "1. In the determination (...) of any criminal charge

     against him, everyone is entitled to a fair (...) hearing

     (...) by a (...) tribunal (...).

     (...)

     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.

     (...)."

65.  The applicant complains that he did not have a fair trial

in that he was convicted on the basis of declarations made by an

anonymous witness, Ms. X. He submits that neither he nor his

lawyer had an opportunity to question Ms. X., whose credibility

was questionable and whose statements he had disputed all the

time. He submits that the judges who convicted him were prevented

from observing Ms. X.'s demeanour during questioning and thus

from forming their own opinion of her reliability.

66.  The Government refer to the Supreme Court's - posterior -

case-law concerning anonymous witnesses (para. 61 above). They

submit that, if the defence has not asked for the witness to be

examined, if the finding of guilt is based to a significant

extent on other evidence from non-anonymous sources and if the

court shows that it has used the anonymous statement with due

care and restraint, exceptions can be made from the conditions

laid down in that case-law.

67.  The Government further submit that the investigating judge

heard Ms. X. under oath and indicated in the procès-verbaux of

the investigation that she (the judge) considered Ms. X's fear

of reprisals, on account of which she wished to remain anonymous,

to be well-founded.

68.  The Government argue that the applicant failed to avail

himself of the opportunity to have the investigating judge put

questions in writing to Ms. X. as he did with respect to the

third anonymous witness. During the hearing before the Utrecht

Regional Court, the applicant did not ask for Ms. X. to be

examined. He only did so in his pleadings before the Court of

Appeal. Moreover, the applicant's conviction was not based solely

on the statements of Ms. X. The statement of the applicant's

co-ccused K. constituted a significant element of evidence.

69.  Finally, the Government observe that the Court of Appeal,

in its judgment of 20 September 1988, declared that "[it had]

used the statements of the anonymous witness with caution and

[had] assessed their reliability in the light of the other means

of evidence".

70.  As the guarantees in para. 3 (d) of Article 6 (Art. 6-1, 6-

3-d) are specific aspects of the right to a fair trial set forth

in para. 1 of this article, the Commission will consider the

complaints under the two provisions taken together (cf. Eur.

Court H.R., Asch judgment of 26 April 1991, Series A No. 203, p.

10, para. 25).

71.  The Commission recalls that the admissibility of evidence

is primarily governed by the rules of domestic law, and that, as

a rule, it is for the national courts to assess the evidence

before them. The task of the Convention organs is to ascertain

whether the proceedings in their entirety, including the way in

which evidence was taken, were fair (cf. Asch judgment, ibid.,

p. 10, para. 26; and Eur. Court H.R. Edwards judgment of

16 December 1992, Series A No. 247-B, pp. 34-35, para. 34).

72.  All evidence must normally be produced in the presence of

the accused at a public hearing with a view to adversarial

argument. However, the use in evidence of statements obtained at

the stage of the police inquiry and the judicial investigation

is not in itself inconsistent with paragraphs 3 (d) and 1 of

Article 6 (Art. 6-1, 6-3-d), provided that the rights of the

defence have been respected. As a rule, these rights require that

the defendant be given an adequate and proper opportunity to

challenge and question a witness against him either when he was

making his statements or at a later stage of the proceedings

(Eur. Court H.R., Saïdi judgment of 20 September 1993, Series A

No. 261-C, p. 56, para. 43).

73.  As to the notion of "witness", the Commission recalls that

although Ms. X. did not testify at a hearing, she should, for the

purposes of Article 6 para. 3 (d) (Art. 6-1, 6-3-d) of the

Convention, be regarded as a witness - a term to be given its

autonomous interpretation - because her statements, as taken down

by the police and investigating judge, were used in evidence by

the domestic courts (Asch judgment, ibid., p. 10, para. 25).

74.  The Commission further recalls that Article 6 does not grant

the accused an unlimited right to secure the appearance of

witnesses in court. It is normally for the national courts to

decide whether it is necessary or advisable to hear a witness

(cf. No. 8231/78, Dec. 6.3.82, D.R. 28, p. 5, and Eur. Court

H.R., Bricmont judgment of 7 July 1989, Series A No. 158, p. 31,

para. 89).

75.  The Commission notes that the applicant's conviction was

based, inter alia, on Ms. X.'s statements. The applicant was

confronted with Ms. X. before the police but neither he nor his

lawyer had an opportunity to examine her directly.

76.  The Commission further notes that Ms. X. based her request

to remain anonymous on a fear of reprisals and that this fear was

considered well-founded by the investigating judge.

77.  The Commission has also regard to the special features of

criminal proceedings concerning rape and other sexual offences.

Such proceedings are often conceived of as an ordeal by the

victim, in particular when the latter is unwillingly confronted

with the defendant. In the assessment of the question whether or

not in such proceedings an accused received a fair trial account

must be taken of the right to respect for the victim's private

life. Therefore, the Commission accepts that in criminal

proceedings concerning sexual abuse certain measures may be taken

for the purpose of protecting the victim, provided that such

measures can be reconciled with an adequate and effective

exercise of the rights of the defence.

78.  The Commission observes that, during the preliminary

judicial investigation, the applicant failed to avail himself of

the offer of the investigating judge to put written questions to

Ms. X., that in the proceedings before the Regional Court he did

not request an examination of Ms. X. either before this court or

the investigating judge, and that the applicant did not request

the prosecution authorities to summon her as a witness for the

hearing of 6 September 1988 before the Court of Appeal. It was

only in the course of that last hearing that he requested the

court to order an examination of Ms. X.

79.  The Commission further observes that the applicant's

conviction did not rest solely on the statements of Ms. X. The

Court of Appeal also used in evidence statements of police

officers, the statement of Ms. X.'s mother, and the statement of

K. All those statements, more or less, corroborated the version

of events Ms. X. had given. They were not, however, consistent

with the applicant's statements on a number of points. In the

course of the proceedings before the trial courts, the applicant

never requested an examination of these persons.

80.  Furthermore, it does not appear that, in the course of the

criminal proceedings against him, the applicant had no

opportunity to challenge Ms. X.'s version of the events, could

not properly challenge her reliability, or could not challenge

the other evidence against him. Before the Court of Appeal, the

applicant's lawyer did in fact challenge Ms. X.'s reliability on

the basis of a file concerning criminal proceedings against E.

In this respect the Commission also notes that the applicant

refused to undergo a blood and saliva test, the result of which

could have supported his allegation that he never had had

intercourse with Ms. X.

81.  In these circumstances, the Commission is of the opinion

that the criminal proceedings against the applicant, considered

as a whole, cannot be regarded as unfair.

     CONCLUSION

82.  The Commission concludes, by fourteen votes to twelve, that

in the present case there has been no violation of Article 6

paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention.

Secretary to the Commission          President of the Commission

       (H.C. KRÜGER)                       (C.A. NØRGAARD)

                                                 (Or. English)

             CONCURRING OPINION OF Mr. H. DANELIUS

     JOINED BY MM. F. ERMACORA, G.B. REFFI AND B. CONFORTI

     Although with some hesitation, I voted in favour of the

conclusion  in para. 87 of the Report according to which there

had been no violation of Article 6 of the Convention in the

present case. However, I do not agree with all the arguments on

which the majority based this conclusion.

     For me, the essential element was that the applicant had

failed to request that Ms. X. be heard in his presence, or in the

presence of his lawyer, either before the investigating judge or

before the Regional Court and that he also did not request,

before the case was heard by the Court of Appeal, that she be

summoned to appear before that Court. It was only at a very late

stage, in the course of the hearing before the Court of Appeal,

that he expressed a wish to hear Ms. X. Consequently, he cannot

be considered to have availed himself of the possibilities which

might have existed to get a confrontation with Ms. X. and to put

questions to her during the court proceedings.

     In these circumstances, and having regard also to the fact

that there was some other relevant evidence supporting the charge

against the applicant, I concluded that the applicant had not

been denied a fair trial.

                                                 (Or. English)

            DISSENTING OPINION OF Mr. C.A. NØRGAARD

   JOINED BY MM. A. WEITZEL, A.S. GÖZÜBÜYÜK, J.-C. SOYER, F.

MARTINEZ, C.L. ROZAKIS, Mrs. J. LIDDY, MM. J. MUCHA, E.

KONSTANTINOV AND D. SVÁBY

     To my regret I cannot agree with the opinion of the majority

of the Commission that there has been no violation of Article 6

paras. 1 and 3 (d) of the Convention.

     With regard to the applicant's refusal to undergo a blood

and saliva test I note that the result of such a test could not

prove the charge of rape.

     Being aware - on the one hand - of the difficulties of

obtaining and producing evidence in cases concerning sexual

offences, and of the position of victims of such offences as

witnesses in criminal proceedings against the suspected offender,

and - on the other hand - recalling the prominent place of the

right to a fair administration of justice in a democratic

society, on balance, I cannot find that the handicaps under which

the defence laboured were outweighed by the procedures followed

by the Dutch judicial authorities.

     The proceedings did not, therefore, grant the applicant a

fair trial as guaranteed by Article 6 paras. 1 and 3 (d) of the

Convention.

                                                 (Or. English)

             DISSENTING OPINION OF Mr. E. BUSUTTIL

                  JOINED BY Mr. L. LOUCAIDES

     I am unable to share the opinion of the majority of the

Commission that there has been no violation of Article 6 paras. 1

and 3(d) of the Convention.

     This is a case where the applicant was convicted of rape and

sentenced to twelve months' imprisonment on the strength of

statements made by Ms. X., three to the police and one before the

investigating magistrate, the reports of the police officers who

had taken down her statements, the statement of Ms. X.'s mother

to the police and the statement of the co-accused to the police.

     In regard to this evidence, it must be noted that Ms. X.'s

mother repeated in her statement the information her daughter had

given her about the incident in question.  Similarly, the police

officers could only repeat what Ms. X. had told them.  The

co-accused stated that the applicant had intercourse with Ms. X.

in the car in his presence but that this had taken place with her

acquiescence.  In the result, therefore, the applicant was

convicted on the basis of Ms. X.'s own statements to the police

and the investigating magistrate and of what Ms. X. had recounted

to her mother.  No other evidence of rape was relied upon by the

Dutch courts.

     Thus, in the present case, two anonymous persons, Ms. X. and

her mother, had only been heard by the police officers in charge

of the case, who later gave evidence in court regarding their

statements, but were not examined by the trial courts.  The

examining magistrate did question Ms. X. but was not aware of her

identity, nor were the trial courts.  As for the applicant's

refusal to undergo blood and saliva tests, it is only necessary

to recall that it does not lie upon the accused to prove his

innocence but upon the prosecution to establish his guilt beyond

reasonable doubt.

     In principle, according to the case-law of the Convention

organs, all evidence must be produced in the presence of the

accused at a public hearing with a view to adversarial argument.

However, as the European Court has determined, there can be

exceptions to this rule provided that the rights of the defence

are respected.  Broadly speaking, these rights require that the

defence be given an adequate and proper opportunity to challenge

and question hostile witnesses, either when they were making

their statements or at some later stage of the proceedings.

     In the instant case, no such opportunity was afforded to the

applicant since at no stage of the proceedings could the

anonymous witnesses be questioned directly by him or on his

behalf.  In addition, the scope for indirect questioning was

considerably restricted by the decision taken to preserve their

anonymity.  In such a situation the handicaps confronting the

applicant were compounded in that, being unaware of the identity

of the witnesses, the defence was unable to demonstrate

prejudice, hostility or unreliability.  Moreover, the courts were

unable to observe the demeanour of the anonymous witnesses and

were thereby precluded from making their own assessment of their

credibility.

     As the European Court commented in Kostovski v. The

Netherlands (Judgment of 20 November 1989, Series A Vol. 166,

paras. 42-44), a case bearing a close affinity to this one, "the

dangers inherent in such a situation are obvious" (para. 42).

The Court added that "the right to a fair administration of

justice holds so prominent a place in a democratic society that

it cannot be sacrificed to expediency " (para. 44).

     In these circumstances, it cannot be said that the

limitations imposed on the defence were counterbalanced by the

procedures followed by the Dutch judicial authorities.  Indeed,

in my view, the constraints on the rights of the defence were

such as to be irreconcilable with the guarantees embodied in

Article 6.

     I conclude, therefore, that there was a violation of

Article 6 paras. 1 and 3(d) of the Convention in this case.

                          APPENDIX I

                  HISTORY OF THE PROCEEDINGS

Date                     Item

_________________________________________________________________

6 April 1990             Introduction of the application

11 June 1990             Registration of the application

Examination of admissibility

5 November 1990          Commission's decision to adjourn the case

13 January 1993          Commission's decision to communicate the

                         case to the respondent Government and to

                         invite them to submit observations on the

                         admissibility and  merits

15 January 1993          Commission's adoption of questions to be

                         put to the parties

16 April 1993            Government's observations

30 July 1993             Applicant's observations in reply

29 November 1993         Commission's decision to declare the

                         application admissible and to put

                         additional questions to the parties

9 December 1993          Commission's adoption of the text of the

                         decision on admissibility and the

                         additional questions

Examination of the merits

20 December 1993         Decision on admissibility and additional

                         questions transmitted to parties.

                         Invitation to parties to submit further

                         observations on the merits

1 March 1994             Applicant's observations

2 March 1994             Government's observations

9 April 1994             Commission's consideration of the state of

                         proceedings

10 May 1994              Government's further observations

9 April 1994             Commission's consideration of the state of

                         proceedings

11 October 1994          Commission's deliberations on the merits,

                         final vote and consideration of the text

                         of the Report

20 October 1994          Adoption of the Report

 

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