The Committee of Ministers, under the terms of Article 54
(art. 54) of the Convention for the Protection of Human Rights
and Fundamental Freedoms (hereinafter referred to as "the
Convention"),
Having regard to the judgments of the European Court of
Human Rights in the case of Kostovski against the Netherlands
delivered on 20 November 1989 and 29 March 1990 and transmitted
the same days to the Committee of Ministers;
Recalling that the case originated in an application against
the Netherlands lodged with the European Commission of Human
Rights on 18 March 1985 under Article 25 (art. 25) of the
Convention by Mr Slobodan Kostovski, a Yugoslav national, who
complained of not having had a fair trial, notably in that he was
not given the opportunity to have questions put to the anonymous
witnesses and in that he was unable to challenge their
statements;
Recalling that the case was brought before the Court by the
Commission on 18 July 1988 and by the Government of the
Netherlands on 15 September 1988;
Whereas in its judgment of 20 November 1989 the Court:
- held, unanimously, that there had been a violation of
paragraph 3.d taken together with paragraph 1 of Article 6
(art. 6-3-d, art. 6-1) of the Convention;
- held, by seventeen votes to one, that the question of the
application of Article 50 (art. 50) was not ready for decision;
Whereas in its judgment of 29 March 1990 the Court, after
having taken formal note of a friendly settlement reached by the
Government of the Netherlands and the applicant in respect of the
latter's claims under Article 50 (art. 50) and having found that
the settlement reached was "equitable" within the meaning of
Rule 53, paragraph 4, of the Rules of the Court, decided,
unanimously, to strike the case out of its list;
Having regard to the Rules adopted by the Committee of
Ministers concerning the application of Article 54 (art. 54) of
the Convention;
Having invited the Government of the Netherlands to inform
it of the measures which had been taken in consequence of the
judgments of 20 November 1989 and 29 March 1990, having regard
to its obligation under Article 53 (art. 53) of the Convention
to abide by it;
Whereas, according to the above-mentioned friendly
settlement, it has been decided that the applicant would receive
the sum of 150 000 Dutch guilders as just satisfaction for the
non-pecuniary damage represented by his detention in the
Netherlands;
Whereas, during the examination of the case by the Committee
of Ministers, the Government of the Netherlands gave the
Committee information about the measures taken in consequence of
the judgments, which information appears in the appendix to this
resolution;
Having satisfied itself that the Government of the
Netherlands has paid the applicant the sum provided for in the
friendly settlement of 29 March 1990,
Declares, after having taken note of the information
supplied by the Government of the Netherlands, that it has
exercised its functions under Article 54 (art. 54) of the
Convention in this case.
Appendix to Resolution DH (94) 47
Information provided by the Government of the Netherlands
during the examination of the Kostovski case
by the Committee of Ministers
A number of modifications to the Code of Criminal Procedure
introduced by the Act of 11 November 1993 (Staatsblad 603/1993),
which entered into force on 1 February 1994, provide new
regulations as to who may testify without having to reveal his
identity and as to the methods to be used in order to safeguard
the rights of the accused in case such testimony is to be used
in criminal proceedings. The Government of the Netherlands
considers that these changes will prevent the repetition of the
kind of violation of Article 6, paragraphs 1 and 3.d (art. 6-1,
art. 6-3-d), found by the Court in the Kostovski case.
The persons who may testify without revealing their name,
age, profession, place of residence or their relation to the
accused are defined in Article 190. These persons are on the one
hand those who fall within the category of "threatened witnesses"
(as defined in Articles 136.c and 226.a) and, on the other, those
who may, as a result of their testimony, encounter problems or
be hindered in the exercise of their profession.
Whether or not a person is to be entitled not to reveal his
identity is decided by the investigating judge after having heard
the witness himself, the prosecution and the defence. The
decision is subject to appeal (Article 226.a).
The procedure for taking evidence from a "threatened
witness" is laid down in Article 226.b-f: The hearing is
conducted by the investigating judge who may order that the
defence not be present at the interrogation, in which case the
prosecution is also excluded from the hearing. The defence and
the prosecution must, however, subsequently be informed of the
witness' statement and be offered an opportunity to put questions
of their own, either by some means of telecommunication or in
writing. If the investigating judge does not allow the answer
to a question to be communicated, the transcript of the hearing
shall simply indicate that the question was answered.
If the defence requests the hearing of a "threatened
witness" at the trial, the evidence shall be taken by the
investigating judge in the manner outlined in Article 226.
The statements of an anonymous witness may only be accepted
at the trial if the person concerned has been designated as a
"threatened witness" and if the crime at issue is severe enough
to justify pre-trial detention and constitutes, in view of the
nature of the crime, the organised nature of the criminal
activities or the connection with other crimes committed by the
accused, a serious breach of the legal order (Article 342). The
statements made by a "threatened witness" pursuant to Article 226
is read out at the trial hearing and is considered as having been
made there (Article 295).
Statements made by other anonymous witnesses may only be
used if there is strong corroborating evidence and the defence
has not asked the witness to be interrogated (Article 334).
Statements made by "threatened witnesses" or persons whose
identity may not be revealed shall not by themselves - without
corroboration from other evidence - constitute proof of the
accused's guilt (Article 344.a). In addition, if the statement
from such a person is used as evidence, the judgment must
indicate the underlying reasons (Article 360).
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