AS TO THE ADMISSIBILITY OF
Application No. 29835/96
by C.G.P.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 15 January 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 September 1995
by C.G.P. against the Netherlands and registered on 19 January 1996
under file No. 29835/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch citizen, born in 1946, and residing in
Amsterdam, the Netherlands. Before the Commission he is represented by
Mrs. P.S.J. Nuijten, a lawyer practising in Amsterdam.
On 23 April 1992 the Regional Court (Arrondissementsrechtbank)
of Amsterdam convicted the applicant of drug offences, sentenced him
to a suspended term of three months' imprisonment and imposed a fine
of 50,000 Dutch guilders to be replaced by six months' imprisonment in
case of non-payment.
The Regional Court used in evidence against the applicant, inter
alia, a procès-verbal drawn up by two officers of the Amsterdam police
on 11 October 1990. According to this procès-verbal information had
been received by the Criminal Intelligence Service (Criminele
Inlichtingen Dienst, hereinafter "CID") to the effect that the
applicant was travelling from Morocco to the Netherlands in a lorry
containing hashish hidden in its roof and that he would enter the
Netherlands at a specified place on 29 August 1990. The procès-verbal
described the subsequent police investigation, consisting of, inter
alia, the observation of the lorry by Belgian and Dutch police. The
information contained in the procès-verbal which concerned the
following of the lorry on its journey through Belgium and the
Netherlands was taken from an observation journal kept by officers
manning a central post at the Amsterdam main police station.
The Regional Court also used in evidence a procès-verbal of the
police officer P. of 6 December 1991 in which the latter stated that
he had seen the applicant crossing the Dutch-Belgian border in a lorry
on 29 August 1990, and a procès-verbal drawn up by the police officer
B. containing a statement made by the applicant on 30 August 1990.
The applicant filed an appeal with the Court of Appeal
(Gerechtshof) of Amsterdam. At the hearing before the Court of Appeal
on 22 January 1993 the applicant's defence counsel argued that the
prosecution should be declared inadmissible since the Procurator
General (Procureur-Generaal) had failed to provide her, at her request,
with a copy of the observation journal. The Procurator General replied
that she had been unable to comply with this request as she was not in
possession of this journal. The Court of Appeal decided not to declare
the prosecution inadmissible. It also refused the defence counsel's
request for a number of witnesses to be heard by the Court. However,
it suspended the hearing and referred the case back to the
Investigating Judge (Rechter-Commissaris) in order for him to hear
these witnesses.
A number of police officers, some of whom had taken part in the
observation of the lorry, were heard by the Investigating Judge in the
presence of the applicant's defence counsel. The defence counsel was
able to put questions to the witnesses and through her questioning she
tried, inter alia, to ascertain the source of the information which had
been received by the CID. However, apart from one witness who stated
that this information had not been noted in a procès-verbal but that
a so-called "tip-off form" had been filled out, none of these witnesses
were able to elaborate on this matter.
At the hearing on 8 December 1993 the Procurator General
requested the Court of Appeal to declare the prosecution inadmissible.
She submitted that none of the persons concerned had been able to
explain how and when the CID information had been received by the
police and that, therefore, it would be impossible for the Court to
determine whether or not the police investigation had commenced
lawfully. The applicant's defence counsel agreed with the Procurator
General, adding that she had not received the documents which had led
to the arrest of the applicant, including the observation journal. In
her opinion, the applicant was entitled to take cognisance of all
documents relevant to his defence even if the prosecuting authorities
did not rely on them.
In an interlocutory judgment of 22 December 1993 the Court of
Appeal decided not to declare the prosecution inadmissible. It held
that it had not appeared from the hearing of witnesses by the
Investigating Judge that irregularities had occurred during the
gathering of information by the CID. Furthermore, the lawfulness of the
police investigation was not affected by the inability to ascertain
exactly how and when the CID information had been received.
Prior to the subsequent hearing on 2 March 1994 the applicant's
defence counsel requested the Court of Appeal to hear a number of
witnesses. These included the police officers B. and P. who had also
been heard by the Investigating Judge following the Court's decision
to suspend the hearing on 22 January 1993. The police officer B. had
stated that he had interviewed the applicant on 30 August 1990 and his
signature featured on the procès-verbal of this interview. However,
according to the applicant the interviewing officer had been a native
of Aruba (a Caribbean island and an autonomous part of the Kingdom of
the Netherlands), whereas during the hearing before the Investigating
Judge the defence counsel had seen that B. was white and did not
correspond to the description given by the applicant of the officer who
had interviewed him.
The defence counsel further requested that the police officer P.
be heard again and she submitted that by questioning this witness she
would be able to refute his testimony given before the Investigating
Judge to the effect that he had seen the applicant in the lorry when
it crossed the border between Belgium and the Netherlands. She finally
requested that the police officer in charge of the police investigation
be heard as a witness. In this respect counsel submitted that from the
examination of the witnesses before the Investigating Judge it had not
become clear which police officer had been in charge of the
investigation.
In her pleadings before the Court of Appeal on 2 March 1994, the
applicant's defence counsel invoked Article 6 of the Convention and
argued, inter alia, that in the present case it had not been possible
to find an answer to the question whether the evidence against the
applicant had been gathered lawfully. In this respect she referred to
the fact that the applicant had been unable to take cognisance of all
relevant documents since the observation journal and the tip-off form
had disappeared.
The applicant's defence counsel further recalled the commotion
which had been created by the recent disbandment of a special police
task force, consisting of officers from different regional police
departments, after it had appeared that investigatory methods had been
used by its members the lawfulness of which was in doubt. This affair
had received wide press coverage from which, according to counsel, it
appeared that there were strong indications that the use of unlawful
investigatory methods was not incidental but structural. Counsel
submitted that in those circumstances it could no longer be maintained
that the lack of information concerning the reason for suspecting the
applicant did not affect the lawfulness of the police investigation.
The Procurator General at the Court of Appeal submitted that she
had not summoned the witnesses proposed by the applicant since, inter
alia, the police officers B. and P. had already been heard by the
Investigating Judge. Furthermore, apart from those police officers who
had been heard by the Investigating Judge, the prosecution department
was not aware that there had been any other police officers in charge
of the investigation. The Procurator General moreover denied that the
disbandment of the special police task force referred to by the
applicant's defence counsel had anything to do with the present case.
In her opinion, the defence had failed to submit any concrete facts
indicating that irregularities had occurred during the police
investigation.
At the hearing on 2 March 1994 the Court of Appeal refused to
accede to the defence counsel's request regarding the hearing of
witnesses. It considered that this refusal could not be detrimental to
the applicant's defence since the requested witnesses B. and P. had
already been heard by the Investigating Judge in the presence of
counsel. The Court held furthermore that no concrete facts or
circumstances had been adduced which could justify the suspicion that
irregularities had occurred during the investigations. Moreover, the
Court of Appeal found that the request to hear a person indicated only
as "the police officer in charge of the investigation" had not been
sufficiently elucidated and it was not convinced that "the Aruban"
actually existed. It held in this respect that, in any event, it had
not been made clear that the presence of this Aruban had influenced the
contents of the statement made and signed by the applicant.
On 16 March 1994 the Court of Appeal quashed the judgment of the
Regional Court, convicted the applicant and imposed the same sentence
as the Regional Court. In accepting the admissibility of the
prosecution it referred to the reasoning contained in its interlocutory
judgment of 22 December 1993. It was for these same reasons that the
Court decided that the inability to ascertain the lawfulness of the
start of the police investigation did not entail the inadmissibility
of the evidence.
The Court of Appeal used in evidence the procès-verbaux of
11 October 1990 and 6 December 1991, a statement made by the applicant
before the Court on 2 March 1994 and a report drawn up by an expert
concerning the substances found in the lorry. In addition, the Court
of Appeal noted that it had not used in evidence the statement made by
the applicant to the police officer B. on 30 August 1990.
The applicant filed an appeal in cassation against this decision
with the Supreme Court (Hoge Raad). He complained in the first place
that since relevant information with regard to the start of the police
investigation was missing, the lawfulness of his arrest could not be
examined and the defence had thus been unable to invoke any possible
irregularities in the gathering of evidence which might have occurred.
Secondly, he complained that the Court of Appeal had refused to hear
certain witnesses.
The Supreme Court rejected the appeal in cassation on
28 March 1995. It held that the Court of Appeal had been right in
rejecting the applicant's argument that the fact that documents
concerning the CID information and the observation journal were missing
should have led to the inadmissibility of the evidence. In this respect
the Supreme Court found that it had not been unreasonable for the Court
of Appeal to accept that the procès-verbal of 11 October 1990 correctly
reflected the contents of the CID information which had been received,
that the contents of the observation journal had only been used in
evidence by the Court of Appeal to the extent that they had been
contained in the procès verbal of 11 October 1990, and that the Court
of Appeal had given the applicant the opportunity to question before
the Investigating Judge a number of police officers who had been
involved in the observation of the lorry.
The Supreme Court also found that the applicant's defence rights
had not been prejudiced as a result of the Court of Appeal's refusal
to hear certain witnesses. In this respect the Supreme Court took into
account the fact that the applicant's defence counsel had not indicated
any concrete facts or circumstances about which she wished to have the
witnesses heard.
The applicant's subsequent request for a pardon (gratie) was
rejected on 11 November 1995.
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
that in the criminal proceedings against him his defence rights were
prejudiced as a result of the fact that relevant information concerning
the beginning of the police investigation was missing. The lawfulness
of this investigation could therefore not be examined and he was thus
unable to invoke any possible shortcomings which might have occurred
in the gathering of the evidence.
2. The applicant further complains under Article 6 para. 3 (d) of
the Convention that the Court of Appeal refused to hear certain
witnesses.
THE LAW
1. The applicant complains in the first place that in the criminal
proceedings against him his defence rights were prejudiced since
certain documents relating to the start of the police investigation
against him had disappeared. He invokes Article 6 para. 1 (Art. 6-1)
of the Convention, which provides, insofar as relevant:
"1. In the determination of ... any criminal charge against him,
everyone is entitled to a fair and public hearing ..."
The Commission notes that Article 6 para. 3 (b) (Art. 6-3-b) may
also be of relevance in its examination of this complaint. Article 6
para. 3 (b) (Art. 6-3-b), insofar as relevant, reads as follows:
"3. Everyone charged with a criminal offence has the following
minimum rights:
b. to have adequate ... facilities for the preparation of his
defence;"
As the guarantees in para. 3 of Article 6 (Art. 6-3) are specific
aspects of the right to a fair trial set forth in paragraph 1, the
Commission will consider the complaint under the two provisions taken
together (cf. Eur. Court HR, Asch v. Austria judgment of 26 April 1991,
Series A no. 203, p. 10, para. 25).
The Commission recalls in the first place that it is not for the
Convention organs to substitute their view for that of the national
courts which are primarily competent to determine the admissibility of
evidence. The Commission should nevertheless satisfy itself that the
proceedings as a whole were fair, having regard to any possible
irregularities before the case was brought before the courts of trial
and appeal and checking that those courts had been able to remedy them
if there were any (cf. Eur. Court HR, Miailhe v. France judgment of
26 September 1996, to be published in Reports of Judgments and
Decisions 1996, para. 43).
The Commission notes that in the present case a police
investigation was commenced after the CID had received incriminating
information about the applicant. The applicant was unable to ascertain
where this information came from or how it had been obtained. Moreover,
it appears that an observation journal was kept during the police
investigation which had involved the following of a lorry through
Belgium and the Netherlands. Although information contained in a
procès-verbal dated 11 October 1990 was stated to have been taken from
this observation journal, the journal itself had apparently disappeared
and the applicant had thus not had access to it.
It is true that the "facilities" which everyone charged with a
criminal offence should enjoy include the opportunity to acquaint
himself, for the purposes of preparing his defence, with the results
of investigations carried out throughout the proceedings. If,
therefore, the information received by the CID and the observation
journal contained relevant items which could have enabled the applicant
to exonerate himself or have his sentence reduced, failure to make
those items available to the defence for inspection would constitute
a refusal of facilities necessary for the preparation of the defence
and, consequently, a violation of the right guaranteed in Article 6
para. 3 (b) (Art. 6-3-b) of the Convention (cf. No. 8403/78, Jespers
v. Belgium, Comm. Rep. 14.12.81, paras. 56 and 59, D.R. 27, pp. 87 and
88). However, the Commission considers that an accused may be expected
to give specific reasons for his request (cf. Eur. Court HR, Bendenoun
v. France judgment of 24 February 1994, Series A no. 284, p. 22, para.
22) and that the domestic courts are entitled to examine the validity
of these reasons.
The Commission observes that it is the applicant's contention
that the source of the CID information and the observation journal
might have revealed irregularities in the investigation which could
have led to either the prosecution or the evidence having to be
declared inadmissible. For this reason, he submits, this information
and this document should have been made available to him.
The Commission further observes that in the domestic proceedings
the Court of Appeal suspended its examination of the case and referred
it back to the Investigating Judge in order for witnesses, who had been
proposed by the applicant, to be heard. The applicant's defence counsel
was thus able to put questions to a number of police officers
concerning the source of the CID information and the observation of the
lorry. However, the Court of Appeal found that the examination of these
witnesses had not produced any support for the applicant's allegation
that any irregularity had in fact occurred.
The Commission considers that by acceding to the applicant's
request to have certain witnesses examined, the Court of Appeal
expressed a willingness to remedy any possible irregularities which
might have occurred before the case was brought before the courts of
trial and appeal. The Court of Appeal thus also enabled itself to form
an opinion as to the validity of the reasons given by the applicant for
his request to have access to certain information. The Commission
further finds that in the absence of any concrete indication that such
irregularities had in fact taken place it does not appear from the
information which was available to the domestic courts that the failure
to produce the "tip off form" and the observation journal infringed the
rights of the defence or the principle of equality of arms.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant further complains under Article 6 para. 3 (d)
(Art. 6-3-d) of the Convention of the Court of Appeal's refusal to hear
certain witnesses. Article 6 para. 3 (d) (Art. 6-3-d) provides as
follows:
"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 ..."
While referring to its observation above, the Commission will
consider this complaint under Article 6 paras. 1 and 3 (d)
(Art. 6-1+6-3-d) taken together.
The Commission recalls from the outset that the taking of
evidence is governed primarily by the rules of domestic law and it is
in principle for the national courts to assess the evidence before
them. It is therefore not the Commission's task to decide whether the
national courts have correctly assessed the evidence, but to determine
whether the proceedings as a whole, including the way in which evidence
was taken, were fair as required by Article 6 para. 1 (Art. 6-1) (cf.
Eur. Court HR, Kostovski v. the Netherlands judgment of 20 November
1989, Series A no. 166, p. 19, para. 39.)
Also, Article 6 para. 3 (d) (Art. 6-3-d) of the Convention does
not give an accused an unlimited right to obtain the examination of
witnesses. It is in principle within the discretionary power of
domestic courts to establish whether the hearing of witnesses is likely
to be of assistance for discovering the truth and, if not, to refuse
the calling of such witnesses (cf. Eur. Court HR, Bricmont v. France
judgment of 7 July 1989, Series A no. 158, p. 31, para. 89).
In the present case the Commission notes that the police officers
B. and P. whom the applicant requested be heard, had already been heard
by the Investigating Judge in the presence of the applicant's defence
counsel who had been able to put questions to these witnesses. The
Commission considers that the Court of Appeal's finding that, even
though it doubted the existence of "the Aruban", it had in any event
not been established that the presence of this Aruban had influenced
the contents of the statement made and signed by the applicant cannot
be regarded as arbitrary or unreasonable. The Commission notes,
moreover, that the procès-verbal of the police officer P. of
6 December 1991 was not used in evidence by the Court of Appeal.
As regards the request that the police officer in charge of the
investigation be heard as a witness, the Commission notes that the
prosecution department stated that it was not aware that there had been
any other police officers in charge of the investigation apart from
those who had already been heard by the Investigating Judge. Without
any further indication as to the identity of this police officer the
refusal of the Court of Appeal to summon this person as a witness does
also not appear arbitrary or unreasonable.
Furthermore, it does not appear that in the course of the
criminal proceedings against him the applicant had no opportunity to
challenge the version of the police officers B. and P. or the other
evidence against him. As to the fairness of the proceedings taken as
a whole the Commission, noting that the applicant was convicted
following adversarial proceedings in which he was represented by a
lawyer, finds that the applicant was provided with ample opportunity
to state his case and to challenge the evidence against him and
considers that there is no indication that the criminal proceedings
against the applicant were not in conformity with the requirements of
Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention.
It follows that this part of the application must also be
rejected under Article 27 para. 2 (Art. 27-2) of the Convention as
being manifestly ill-founded.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy