In the case of Baegen v. the Netherlands (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of Rules of Court B (2), as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr B. Walsh,
Mr R. Macdonald,
Mr J. De Meyer,
Mr S.K. Martens,
Mrs E. Palm,
Mr R. Pekkanen,
Mr A.B. Baka,
Mr P. Kuris,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 28 September and
24 October 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
1. The case is numbered 51/1994/498/580. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules of Court B, which came into force on 2 October 1994, apply
to all cases concerning the States bound by Protocol No. 9 ((P9).
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PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 8 December 1994, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 16696/90) against the Kingdom of the Netherlands
lodged with the Commission under Article 25 (art. 25) by a Netherlands
national, Mr Wilhelmus Elisabert Baegen, on 6 April 1990.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby the Netherlands recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 6 paras. 1 and 3 (d) (art. 6-1, art. 6-3-d)
of the Convention.
2. The Chamber to be constituted included ex officio
Mr S.K. Martens, the elected judge of Netherlands nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 27 January 1995, in
the presence of the Registrar, the President drew by lot the names of
the other seven members, namely Mr B. Walsh, Mr R. Macdonald,
Mr J. De Meyer, Mrs E. Palm, Mr R. Pekkanen, Mr A.B. Baka and
Mr P. Kuris (Article 43 in fine of the Convention and Rule 21 para. 4)
(art. 43).
3. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the Netherlands
Government ("the Government") and the Delegate of the Commission on the
organisation of the proceedings (Rules 39 para. 1 and 40). Pursuant
to the order made in consequence, the Registrar received the
Government's memorial on 28 July 1995.
4. On 11 July 1995 the Commission produced to the Court certain
documents from the file on the proceedings before it, as requested by
the Registrar on the President's instructions.
5. On 8 December 1994 the Registrar had sent to the applicant the
enquiry provided for in Rule 35 para. 3 (d). Despite repeated attempts
by the Registrar to obtain a response from the applicant, none was
received and on 26 July 1995 the applicant was informed by the
Registrar that the Court would proceed with the case on the assumption
that he had decided not to take part in the present proceedings.
6. By letter received on 18 August 1995 the Government requested the
Court to strike the case out of its list pursuant to Rule 51 para. 2.
7. On 28 September 1995 the Chamber decided to dispense with a
hearing in the case, having satisfied itself that the condition for
this derogation from its usual procedure had been met (Rules 27 and
40).
AS TO THE FACTS
I. Particular circumstances of the case
8. The applicant is a Netherlands national born in 1957 and resident
in Utrecht.
9. On the morning of 1 February 1986 a woman referred to hereinafter
as Ms X made a statement to the Utrecht municipal police to the effect
that she had been raped by two men.
10. Ms X opted to remain anonymous in the subsequent criminal
proceedings on the ground that she feared reprisals from the men who
had raped her.
Her home address, however, was mentioned in the police case file.
11. On the same day the responsible police officer made a request in
writing for a medical examination of Ms X A copy of this request,
which bears Ms X's full name, was among the documents submitted by the
applicant to the Commission.
Items of Ms X's underclothing were sent to a forensic laboratory
for examination.
12. The applicant was arrested on 10 February 1986. Ms X was
confronted with him through a two-way mirror. She stated that she
recognised the applicant as the first of the men involved in raping her
but did not remember whether she had also been raped by the second man.
She again identified the applicant as the rapist two days later
when she was confronted with him in person, saying that she recognised
not only his appearance but also his voice.
13. On 14 February 1986 the police examined a third witness, Y, who
like Ms X wished to remain anonymous for fear of reprisals.
14. On 24 February 1986 a second suspect was arrested. Although
initially he denied all knowledge of what had happened, he later stated
that the applicant and Ms X had had sexual intercourse and that Ms X
had consented thereto.
15. On 25 March the applicant was informed by the police that traces
of semen had been found in Ms X's underwear and that it had been
possible to identify the blood group and genetic type. When asked to
lend his co-operation to blood and saliva tests he refused.
16. In the context of a preliminary investigation, the witness Y was
heard on oath by an investigating judge (rechter-commissaris) of the
Utrecht Regional Court (arrondissementsrechtbank) on 16 July 1986.
Y repeated the statement he had made earlier to the police.
17. On 4 August 1986 the investigating judge heard the second
suspect, who also repeated the statement which he had made to the
police.
18. On 28 August 1986 the investigating judge heard Ms X on oath, as
there were reasons to assume that she would not appear in open court
for fear of reprisals, which fear the investigating judge considered
well-founded. The record of the interview states that Ms X's identity
was known to the Utrecht municipal police. Ms X confirmed her
statements to the police. On 28 August 1986 the record of the
interview with Ms X was sent to counsel for the applicant, who was
invited to submit any additional questions to be put to Ms X. Counsel
for the applicant acknowledged receipt of the record by letter of
1 September 1986, but did not submit any questions.
19. At the request of counsel for the applicant, the investigating
judge heard Y again on 14 October 1986. On that occasion, Y replied
to certain written questions submitted by counsel for the applicant.
20. 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 the charge. At no point in the proceedings before the
Regional Court did either the applicant or his lawyer request the
Regional Court to hear any witnesses.
On 16 October 1987 the Regional Court convicted the applicant of
rape and sentenced him to twelve months' imprisonment.
21. On 20 October 1987 the applicant filed an appeal to the Amsterdam
Court of Appeal (gerechtshof). On 2 September 1988 counsel for the
applicant submitted certain documents from the case file concerning a
certain E., who was suspected of having raped a person on
24 September 1986. In that case file the identity of the victim was
disclosed.
22. The Court of Appeal heard the case on 6 September 1988. The
applicant continued to protest his innocence. In his pleadings counsel
for the applicant requested the Court of Appeal to suspend its hearing
or else refer the case back to the investigating judge so that Ms X
might be subjected to further interrogation. Counsel referred to the
documents which he had submitted from the case file of criminal
proceedings against E. and claimed categorically that the alleged
victim in that case was the same person as Ms X. He submitted that in
the case of E. it clearly appeared from several statements by witnesses
that Ms X was known for approaching men in a sexually explicit manner.
23. 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 twelve months' imprisonment.
It rejected the request of counsel for the applicant 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.
24. An appeal on points of law filed by the applicant on
20 September 1988 was rejected by the Supreme Court (Hoge Raad) on
10 October 1989, one month and ten days before the European Court of
Human Rights delivered its judgment in the case of Kostovski v. the
Netherlands (judgment of 20 November 1989, Series A no. 166).
II. Relevant domestic law and practice
25. For a statement of the relevant domestic law and practice at the
time of the events complained of, reference is made to the Court's
above-mentioned Kostovski judgment.
PROCEEDINGS BEFORE THE COMMISSION
26. In his application (no. 16696/90) of 6 April 1990 to the
Commission the applicant complained that he had not had a fair trial
in that he had been convicted on the basis of statements made by an
anonymous witness whose desire to remain anonymous was in any event
unfounded. Moreover, he alleged that the rights of the defence had
been unduly restricted since, although he had consistently challenged
the reliability of the statements in question, neither he nor his
counsel had been able to question that witness directly. He relied on
Article 6 paras. 1 and 3 (d) (art. 6-1, art. 6-3-d) of the Convention,
which guarantee everyone charged with a criminal offence the right to
a fair trial and the right to examine or have examined witnesses
against him.
27. The Commission declared the application admissible on
9 December 1993. In its report of 20 October 1994 (Article 31)
(art. 31), it expressed the opinion that there had been no violation
of Article 6 paras. 1 and 3 (d) (art. 6-1, art. 6-3-d) (fourteen votes
to twelve).
The full text of the Commission's opinion and of the three
separate opinions contained in the report is reproduced as an annex to
this judgment (1).
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1. Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 327 B of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
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FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
28. The Government concluded their memorial by expressing the opinion
that there had been no violation of Article 6 paras. 1 and 3 (d)
(art. 6-1, art. 6-3-d).
AS TO THE LAW
29. On 8 December 1994 the Registrar advised the applicant in
writing, as required by Rule 35 para. 1 of Rules of Court B, that his
case had been referred to the Court and invited him to confirm in
writing that he wished to take part in the proceedings and to designate
a lawyer to represent him. The applicant did not respond.
Similarly, he did not react to reminders which were sent to him
on 11 May and 27 June 1995.
30. By letter dated 10 August and received by the Registrar on
18 August 1995 the Agent of the Government suggested that the
non-participation of the applicant constituted a "fact of a kind to
provide a solution of the matter" and requested the Court to strike the
case out of its list in accordance with Rule 51 para. 2 of Rules of
Court B, which provides:
"When the Chamber is informed of a friendly settlement,
arrangement or other fact of a kind to provide a solution of the
matter, it may, after consulting, if necessary, the parties and
the Delegates of the Commission, strike the case out of the list.
The same shall apply where the circumstances warrant the
conclusion that a party who filed an application by virtue of
Article 48 para. 1 (e) (art. 48-1-e) of the Convention does not
intend to pursue the application or if, for any other reason,
further examination of the case is not justified."
31. By letter received on 28 August 1995 the Secretary to the
Commission advised the Registrar that the Delegate had no objection to
the case being struck out of the list.
32. The Court, for its part, considers that the conditions for the
application of Rule 51 para. 2, second sub-paragraph, are satisfied in
the present case. In particular, in its opinion, by reason of the
failure of the applicant to come forward despite repeated reminders by
the Registrar, further examination of the case is not justified. It
notes, in addition, the position adopted by the Government and the
Commission.
Furthermore, the Court observes that in a number of previous
cases it has had occasion to express itself on the rights of the
defence in cases involving anonymous prosecution witnesses (see,
particularly, the Kostovski judgment cited above, which postdates the
judgment of the Netherlands Supreme Court in the present case) and that
another case against the same Contracting State raising related issues
is currently pending before it. In these circumstances it cannot be
said that there is any reason of public policy for continuing the
present proceedings (Rule 51 para. 4 of Rules of Court B).
33. Accordingly, it is appropriate to strike the case out of the
list.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the case out of the list.
Done in English and in French, and notified in writing under
Rule 57 para. 2, second sub-paragraph, of Rules of Court B, on
27 October 1995.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
Full & Egal Universal Law Academy