THIRD SECTION
DECISION
Application no. 41596/13
Johnny BREIJER
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 3 July 2018 as a Chamber composed of:
Helena Jäderblom, President,
Branko Lubarda,
Helen Keller,
Dmitry Dedov,
Alena Poláčková,
Georgios A. Serghides,
Jolien Schukking, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 17 June 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Johnny Breijer, is a Netherlands national, who was born in 1963 and lives in Amsterdam. He is represented before the Court by Mr W. Ausma, a lawyer practising in Utrecht. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and their Deputy Agent, Ms K. Adhin, both of the Ministry of Foreign Affairs.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The criminal investigation and proceedings at first instance
3. The applicant was suspected of drugs offences.
4. In the investigation preceding the court proceedings, one X stated on 1 December 2005, when questioned by police, that the applicant had picked up one kilogram of heroin from him, for which he would pay 12,000 or 12,500 euros (EUR). X had stated that the applicant had, however, brought back the heroin one or two days later.
5. X had been summoned to appear as a witness before the investigating judge (rechter-commissaris) on 16 October 2008. He appeared, but invoked a right of testimonial privilege (verschoningsrecht).
6. The public prosecutor (officier van justitie) summoned X to appear as a witness before the Regional Court on 7 November 2008. X again invoked a right of testimonial privilege, stating inter alia:
“I no longer want to testify, because I have been threatened. I invoke my right of testimonial privilege with regard to the question whether these threats came from the direction of the accused.”
7. By judgment of 21 November 2008 the Haarlem Regional Court (rechtbank) convicted the applicant under the Opium Act (Opiumwet) of having transported and delivered approximately one kilogram of heroin. The applicant was sentenced to one year’s imprisonment.
8. The Regional Court considered it to be proven that the applicant had collected a kilogram of heroin from X, which he had taken back to X two days later because it was of insufficient quality. The court based its decision inter alia on the statement made by X to the police. It held that that statement could be used in evidence considering that in it, X had also incriminated himself, that X had not withdrawn this statement and that it was corroborated by various other items of evidence, including police observations and an intercepted and recorded conversation between X and the applicant.
2. Proceedings on appeal
9. The applicant lodged an appeal against the judgment of the Regional Court.
10. During the hearing of the Amsterdam Court of Appeal (gerechtshof) of 16 March 2010 X appeared as a witness. The President of the Court of Appeal established that X had been finally convicted of involvement in the offence with which the applicant was charged and that, therefore, X was no longer entitled to testimonial privilege. Even so, X refused to testify. When questioned, X stated, inter alia:
“I am very afraid that I will get into trouble by making a statement. ... I worry a lot about what has happened in the past and about the statements I have made in the A. investigation [a large-scale police investigation into drugs offences which led to X being convicted]. Since I have been released from prison I am being threatened, apparently in order to prevent me from testifying again in this case and in other cases.”
11. The Court of Appeal subsequently ordered the continuation of the hearing in camera and in the absence of the applicant in order to question X about the nature of the alleged threats. X stated, inter alia:
“You ask me by whom I am being threatened. If I tell you that I will be in greater trouble still. I am prepared to say why and how I have been threatened. ... The second reason why I have been threatened is because I talk too much in court. They tell me to keep my mouth shut. ... You ask me whether I have been told that I should not talk in the case in which I am now appearing as a witness. Yes, I have been told that. I have received serious threats; I fear for the lives of my wife and children. ... I have been threatened by various persons. ... I have not been beaten up, but I have been threatened verbally. I have been approached by persons I do not know. ... You ask me whether, prior to today’s hearing, I have received threats relating concretely to the testimony which I am to give today. I do not wish to appear disrespectful but I really do not want to say anything about these things. ... The threats started two months after my arrest. ... In addition, when I was imprisoned unknown persons visited my brother. They told my brother that I should keep my mouth shut. In the last six months I was threatened twice by two unknown persons. ... Two months ago I heard that these men were looking for me again. ... You ask me whether I have been threatened by the accused. I will not say anything about that either. ... I do not want to say who has threatened me. ...”
12. Following deliberations in private (raadkamer), the applicant was re-admitted to the courtroom and he was informed of what had occurred. In reply to further questions from the President, X stated that he still did not want to testify in relation to the offence of which the applicant was suspected. He further replied inter alia as follows to questions put by counsel for the applicant:
“You ask me whether I have ever been threatened by [the applicant]. I have not said such a thing. I cannot tell you whether or not I have ever been threatened by [the applicant]. ...”
In reply to questions put by one of the judges, X replied:
“You ask me whether I spoke the truth when I made the statement of 1 December 2005. I cannot reply to [that question], having regard to the obstacles about which I spoke earlier.”
13. By judgment of 2 April 2010 the Court of Appeal convicted the applicant of having transported approximately one kilogram of heroin. It based its judgment on inter alia the following evidence:
(a) the applicant’s statement made at the hearing to the effect that he had visited X’s garage on 26 September 2005 and discussed heroin with X;
(b) the transcript of the statement made by X to the police on 1 December 2005, to the effect that the applicant had collected one kilogram of heroin from him, for which he was going to pay EUR 12,000 or 12,5000;
(c) the transcript of a conversation between the applicant and X, which had been recorded simultaneously with direct static visual observation, from which it appears that X leaves to fetch a kilogram of heroin to hand to the applicant and the applicant comments on its quantity and its colour;
(d) a series of recorded static images showing the meeting between X and the applicant;
(e) a forensic report identifying traces of materials found on X’s premises as containing heroin.
The Court of Appeal dismissed as lacking credibility the applicant’s statement that he had thought better of purchasing heroin from X once he was out of range of the sound recording device. On this point, its reasoning was the following:
“The Court of Appeal considers in the first place that [the applicant’s] version of events on 26 September 2005 is not supported by the content of the recorded conversation between the [applicant] and [X] in the garage (...). It cannot be found on the basis of that conversation that [X] proposed the sale of heroin to [the applicant]. Rather, it follows from this conversation that it was actually [the applicant] who asked [X] for heroin.
Nor has a credible case been made out, considering the content of that [recorded] conversation – in which the [applicant] himself asked for heroin – that during the brief lapse of time that passed during the last [recording] at 3.14 p.m. and the moment at which, according to the observing police officers (verbalisanten) [the applicant] got into his car (...), to wit, 3.16.17 p.m., changed his mind and informed [X] of his change of heart in the three seconds that passed between the moment he came outside with [X] and (i.e. 3.16.14 p.m.) and the moment he got into his car (as mentioned, 3.16.17).”
As regards the use in evidence of the statement made by X to the police on 1 December 2005, the Court of Appeal’s reasoning included the following:
“The Court of Appeal ... finds in the first place that, contrary to the argument made by counsel, proof of the [applicant’s] involvement in the crime charged does not rest primarily (in overwegende mate) on the said statement of [X]. After all, it follows from the [applicant’s] own statement at the appeal hearing of 16 March 2010 that [the applicant] was present in [X’s] garage on 26 March 2005 and that he discussed with [X] the subject (presumably the purchase) of heroin. [X’s] statement is thus anchored in the applicant’s own statement and also in [the audio recording and the static visual images]. There is therefore no ground to exclude [X’s statement] on the primary ground argued.
As to the alternative argument, the Court of Appeal takes the view that counsel’s position that [X’s] statement is unreliable lacks a sufficient basis in fact. For the remainder, no circumstances have come to the Court of Appeal’s notice that would justify doubts about the detailed and consistent statement made by [X] on 1 December 2005, which, as found above, corresponds with the content of the other evidence detailed above. In so finding the Court of Appeal takes into account the fact that [X] also incriminates himself in the statement aforementioned and also that [X] has confirmed this statement on 27 December 2007 to the police (...) and has not at any time unambiguously withdrawn it in the course of subsequent interrogation.”
and on the subject of further cross-examination of X:
“The Court of Appeal notes that, both before the investigating judge on 16 October 2008 and at the first instance hearing on 7 November 2008, [X] has invoked his right of testimonial privilege and refused to make further statements relating to the criminal proceedings against the accused because he claimed that he was being threatened. At the hearing on appeal [X] again declared that he was being threatened in relation to the incriminating statements he had made in case A. and with a view to statements possibly still to be made by him against suspects in case A. ... [X] has subsequently stated, in no uncertain terms and repeatedly, that he is not willing to testify about the role of named persons in the A. investigation, nor about the role of the accused [in the present proceedings]. ... Given that, on the one hand, the defence has had the opportunity to question X at the appeal hearing on 16 March 2010 and, on the other, that this witness has stated consistently from 16 October 2008 onwards that he is under pressure of threats and for that reason no longer willing to testify about the role of named persons in the A. investigation, even when he was no longer entitled to a right of testimonial privilege, as at the hearing of 16 March 2010, the Court of Appeal deems a renewed summoning of [X], who is to be regarded as an unwilling witness, pointless and, therefore, unnecessary. ...”
The Court of Appeal convicted the applicant of having deliberately transported a quantity of a material containing heroin and sentenced him to a partially suspended term of twelve months’ imprisonment.
3. Proceedings on appeal on points of law
14. On 7 February 2012 the applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad). He submitted four grounds of appeal (cassatiemiddelen) in which he raised inter alia the following complaints: firstly, that the Court of Appeal had mistakenly concluded that the statement given by X to the police was sufficiently supported by other evidence to prove that the applicant had transported the drugs; and secondly, that it had failed to present proper reasoning as to why it refused to summon X again as a witness, and if need be to commit him for failure to comply with a judicial order.
15. In his advisory opinion (conclusie), the Procurator General (Procureur Generaal) to the Supreme Court – referring to the Court’s judgment in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, ECHR 2011) – expressed the view that the Court of Appeal had rightly concluded that the evidence provided by X was not “sole or decisive”; in the light of the supporting evidence it could not be said that X’s statement was likely to be determinative of the outcome of the case. The Procurator General furthermore expressed the view that the Court of Appeal had omitted to determine whether there were objective grounds, supported by evidence, for the fear which X had expressed and concluded that this leg of the grounds of appeal should be upheld.
16. On 29 January 2013 the Supreme Court dismissed the applicant’s appeal on points of law and confirmed the judgment of the Court of Appeal. In its reasoning the Supreme Court held that, although the applicant had not been able to examine X (since the latter had refused to testify) and had therefore not been able fully to exercise his right under Article 6 § 3 (d), the Court of Appeal had been entitled to rely on the statement made by X since this statement was sufficiently supported by other evidence to prove that the applicant had transported the drugs, and since this other evidence related to those parts of X’s statement which the applicant disputed. It further held that the Court of Appeal had – considering the circumstances of the case – not been required to summon the witness again, as the applicant had had sufficient opportunity to question X. The Supreme Court finally held that the cassation proceedings had lasted too long, for which it compensated the applicant by reducing his prison sentence by three weeks.
B. Information submitted by the Government
17. In their observations on the admissibility and merits of the application, the Government stated the following:
“The [A.] investigation started in 2005 and focused on a criminal group led by [N.K.] and the international trafficking of large quantities of heroin. The [A.] investigation brought to light a large number of criminal offences: heroin and firearms were found, intensive trade was uncovered in the Netherlands and shipments were intercepted in several European countries. Witness X was a suspect in this investigation and the Amsterdam Court of Appeal ... eventually sentenced him to five years in prison for participating in a criminal organisation and for several minor offences under the Opium Act ... The applicant also became a suspect in this investigation after it was found that he had been present at the garage of witness X during the delivery of one kilogram of heroin by witness X.”
18. The applicant did not comment.
C. Relevant domestic law
19. Article 219 of the Code of Criminal Procedure (Wetboek van Strafvordering) provides, in so far as relevant, as follows:
“A witness shall be excused the duty to answer a question put to him if in so doing he would expose himself ... to the risk of criminal prosecution.”
COMPLAINT
20. The applicant complains of a violation of Article 6 §§ 1 and 3 (d) of the Convention in that he was unable to examine or have examined a witness against him whose evidence was used to secure his conviction. In this respect he further argues that his conviction was based to a decisive degree on the witness statement in issue.
THE LAW
Complaint under Article 6 §§ 1 and 3 (d)
21. The applicant alleged a violation of Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows:
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ...
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; ...”
The Government denied that there had been any such violation.
1. Argument before the Court
22. The Government submitted in the first place that the requirement that there be good reason for admitting the evidence of an absent witness (the Court understands this to include a witness who refuses to give evidence) should not be considered absolute, but should be treated with flexibility where appropriate. At all events, the question whether the fears of the witness X were well-founded had been considered by the Court of Appeal in considerable detail and found to be credible.
23. There had been no realistic alternative way to obtain X’s evidence. Hearing him as an anonymous witness would have been impossible, since his identity was already known to the persons he feared; committing him would not necessarily have induced him to testify either; and offering special protection was a costly measure not proportionate in the vast majority of cases.
24. The evidence given by X had been neither “sole” nor “decisive” in grounding the applicant’s conviction. It had been supported by the applicant’s own statement that he had been in X’s garage on 26 September 2005 and had discussed heroin with him; the recording of a conversation between X and another man (identified as the applicant) in his garage, in which X had stated that he was getting one kilogram and the man had said something about the colour and quantity of the substance; traces of heroin found in the garage; and information obtained by police surveillance. The Court of Appeal had dismissed as implausible the applicant’s statement that he had thought better of the transaction. The present case was distinguishable from Vidgen v. the Netherlands, no. 29353/06, 10 July 2012, in that the applicant’s criminal intent could be inferred from audio recordings and the statement made by the applicant himself.
25. There had been counterbalancing factors that had enabled the Court of Appeal to conclude that X’s statement incriminating the applicant was reliable. Thus, X’s statement to the police was supported by corroborating evidence; the investigating judge, the Regional Court and the Court of Appeal had seen and heard X in person. The Court of Appeal, noting firstly that X had confirmed his statement in a second police interview and secondly that X’s statement also incriminated X himself, had found X’s statement incriminating the applicant – which was never unambiguously retracted – to be consistent and credible. Moreover, X was an acquaintance of the applicant, which meant that the applicant could have cast doubt on his credibility; this the applicant had not done. Nor had the applicant come up with a credible alternative scenario.
26. The applicant countered that the only information relevant to any fears X might have had came from X’s own statements. There was no substantiation of these alleged fears from an objective source.
27. Only the evidence given by X provided direct and conclusive evidence that the applicant had actually committed the crime of which he was convicted. At most, the supporting evidence was proof of the applicant’s intention to purchase heroin. X’s evidence had therefore been “decisive”.
28. The counterbalancing factors suggested by the Government should be discounted because none of them related directly to those aspects of X’s statement which the applicant disputed.
2. The Court’s assessment
(a) Applicable principles
29. The Court reiterates that the guarantees in paragraph 3(d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of that Article which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Schatschaschwili v. Germany [GC], no. 9154/10, § 101, 15 December 2015, and Taxquet v. Belgium [GC], no. 926/05, § 84, 16 November 2010, with further references therein). In making this assessment the Court will look at the proceedings as a whole, having regard to the rights of the defence but also to the interests of the public and the victim(s) that crime is properly prosecuted (see Schatschaschwili, cited above, § 101, and Gäfgen v. Germany [GC], no. 22978/05, § 175, ECHR 2010) and, where necessary, to the rights of witnesses (see, amongst many authorities, Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, 15 December 2011). It is also notable in this context that the admissibility of evidence is a matter for regulation by national law and the national courts and that the Court’s only concern is to examine whether the proceedings have been conducted fairly (see Gäfgen, cited above, § 162, and the references therein; see also Seton v. the United Kingdom, no. 55287/10, § 57, 31 March 2016).
30. In Al-Khawaja and Tahery, cited above, §§ 119‑147 the Grand Chamber clarified the principles to be applied when a witness does not attend a public trial. These principles may be summarised as follows (see also Seton, § 58):
(i) the Court should first examine the preliminary question of whether there was a good reason for admitting the evidence of an absent witness, keeping in mind that witnesses should as a general rule give evidence during the trial and that all reasonable efforts should be made to secure their attendance;
(ii) typical reasons for non-attendance are, like in the case of Al‑Khawaja and Tahery (cited above), the death of the witness or the fear of retaliation. There are, however, other legitimate reasons why a witness may not attend trial;
(iii) when a witness has not been examined at any prior stage of the proceedings, allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort;
(iv) the admission as evidence of statements of absent witnesses results in a potential disadvantage for the defendant, who, in principle, in a criminal trial should have an effective opportunity to challenge the evidence against him. In particular, he should be able to test the truthfulness and reliability of the evidence given by the witnesses, by having them orally examined in his presence, either at the time the witness was making the statement or at some later stage of the proceedings;
(v) according to the “sole or decisive rule”, if the conviction of a defendant is solely or mainly based on evidence provided by witnesses whom the accused is unable to question at any stage of the proceedings, his defence rights are unduly restricted;
(vi) in this context, the word “decisive” should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence: the stronger the other incriminating evidence, the less likely that the evidence of the absent witness will be treated as decisive;
(vii) however, as Article 6 § 3 of the Convention should be interpreted in the context of an overall examination of the fairness of the proceedings, the sole or decisive rule should not be applied in an inflexible manner;
(viii) in particular, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time, where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance to the case.
31. Those principles have been further clarified in Schatschaschwili, cited above, §§ 111–131, in which the Grand Chamber confirmed that the absence of good reason for the non-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d). Furthermore, given that its concern was to ascertain whether the proceedings as a whole were fair, the Court should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence. The extent of the counterbalancing factors necessary in order for a trial to be considered fair would depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair (see also Seton, cited above, § 59).
(b) Application of the above principles
32. The Court notes at the outset that X was not an “absent” witness in the sense that he was not presented for cross-examination. Indeed, the defence was enabled to question him in open court, though to little effect. Rather, X refused to give evidence, citing a fear of reprisals. In the circumstances of the present case, however, the Court will apply the principles set out above.
33. As regards the preliminary question of whether there was a good reason to admit X’s evidence, the Court observes that the information available to it does not allow it to find that X was threatened, directly or indirectly, by the applicant himself. It is however impossible for the Court to ignore that X was found to be a member of a criminal organisation that engaged in the international trafficking of large quantities of heroin and moreover was involved with firearms (see paragraph 17 above). The Court notes that this background information, submitted by the Government, is not disputed by the applicant. Accordingly, the Court is prepared to accept not only that X had good reasons for not wishing to testify but also that attempts to compel him to do so would have offered few prospects of success. Taking into account the efforts made by the domestic courts to induce X by repeated persuasion to submit to cross-examination, the Court is disposed to answer the preliminary question in the affirmative.
34. Moving on to the next stage of the test set out in Al-Khawaja and Tahery, the Court notes that the evidence available in addition to X’s statement to the police included the applicant’s own admission that he had discussed heroin with X; static visual images obtained by direct visual observation of the transaction between X and the applicant; and a sound recording of the conversation that took place on that occasion (see paragraph 13 above). That being so, X’s statement was not the “sole” evidence used to ground the applicant’s conviction; nor was it “decisive” in the sense that it was likely to be determinative of the outcome of the case.
35. Finally, given the need under Article 6 to assess the fairness of the proceedings as a whole, the Court cannot but have regard to the detailed and limpid reasoning of the Court of Appeal in satisfying itself that the incriminating statement made by X to the police, while by no means “sole” or “decisive”, was in fact reliable in the light of the applicant’s own statement in open court and the weight of the corroborating evidence available (see paragraph 13 above), which reasoning moreover survived review by the Supreme Court (see paragraph 16 above). In these circumstances, and in so far as the evidence of X may be considered to have carried “significant weight” (see Schaschatschwili, cited above, § 116), the Court – reiterating that the assessment of “counterbalancing factors” is a relative one – is prepared to accept that any handicaps that may have beset the defence as a result of the admission of X’s evidence were sufficiently cancelled out. The Court also notes that the President of the Court of Appeal found that X was no longer entitled to privilege (see paragraph 10 above), and the applicant was in fact able to put questions to X. X’s demeanour under examination was a matter which the Court of Appeal could take into consideration. Taking into account the facts and circumstances of the case, the Court finds that it cannot be said that the criminal proceedings, looked at as a whole, were rendered unfair by the admission in evidence of X’s statement.
36. Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Done in English and notified in writing on 30 August 2018.
Stephen PhillipsHelena Jäderblom
RegistrarPresident
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