SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 994/03
by Arnold G. CORNELIS
against the Netherlands
The European Court of Human Rights (Second Section), sitting on 25 May 2004 as a Chamber composed of:
MrJ.-P. Costa, President,
MrL. Loucaides,
MrC. Bîrsan,
MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen,
MrsA. Mularoni, judges,
and Mr T.L. Early, Deputy Section Registrar,
Having regard to the above application lodged on 8 January 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Arnold G. Cornelis, is a Netherlands national, who was born in 1940 and is currently serving a prison sentence in the Netherlands. He was represented before the Court by Mr A.A. Franken, a lawyer practising in Amsterdam.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The criminal proceedings against Mr Z.
On 16 December 1996 a criminal investigation under the code name “Carex” was opened into several cocaine shipments, which resulted in the seizure of a large quantity of cocaine on 4 June 1997 as well as in the arrest of Mr Z. and another suspect. In July and August 1997, after Mr Z. had indicated his interest in coming to an arrangement with the public prosecution service, the Haarlem public prosecutor Mr A., who was responsible for the supervision of the activities of the Criminal Intelligence Service (Criminele Inlichtingen Dienst – "CID"), explored the possibilities of reaching an arrangement whereby Mr Z. would give statements about others involved in cocaine trafficking in exchange for a reduced sentence. Although no such arrangement was reached in the end, Mr Z. did – in the course of the negotiations – give statements about, among others, the applicant who had not been a suspect in the Carex investigation. These statements were recorded on tape.
By judgment of 28 May 1998, the Haarlem Regional Court (arrondissementsrechtbank) convicted Mr Z. of involvement in the importation of 160 and 400 kilograms of cocaine and sentenced him to eight years' imprisonment. He was acquitted in so far as the charges related to a shipment of 700 kilograms of cocaine. Ms C., the Haarlem public prosecutor in charge of the prosecution of Mr Z. before the Regional Court, filed an appeal. The appeal was however withdrawn on 7 October 1998.
In the framework of further negotiations, which started in June 1998, between the public prosecutor Mr B. of the National Organised Crime Prosecution Service (Landelijk Parket) and Mr Z. on a possible arrangement, Mr Z. gave statements on 5 June, and on 2, 3, 4, 6, 7, and 8 July 1998 about, among others, the applicant. In these statements, Mr Z. admitted that he had been involved in the shipment of the 700 kilograms of cocaine of which he had been acquitted.
After having obtained the advice of the Central Advisory Commission (Centrale Toetsingscommissie – “CTC”) of the public prosecution service (openbaar ministerie), as required by the Directive on arrangements with criminals (Richtlijn afspraken met criminelen) of 13 March 1997, the Board of Procurators General (College van procureurs‑generaal) approved the arrangement with Mr Z. The arrangement was formally concluded and consigned to writing on 6 November 1998.
This arrangement stipulated inter alia that, in exchange for further truthful statements by Mr Z. on his own role and that of, among others, the applicant in drug trafficking, the public prosecution service would make a positive recommendation that Mr Z.'s request for a partial pardon (gratie) be granted. Furthermore, in the context of the proceeds of crime proceedings against Mr Z., it would make a proposal for a settlement within the meaning of Article 511c of the Code of Criminal Procedure (Wetboek van Strafvordering) to the effect that Mr Z. would pay the State 200.000 Netherlands guilders [90,756.04 euros] (“NLG”) for illegally obtained gains.
2. The criminal proceedings against the applicant
On 10 March 1998, the applicant was taken into police custody (inverzekeringstelling) on suspicion of involvement in the importation of hashish via Sri Lanka. On the basis of statements given by Mr Z. in the context of the arrangement of 6 November 1998, additional suspicions arose in respect of the applicant concerning his involvement in the importation of large quantities of cocaine. The applicant was eventually summoned to appear before the Amsterdam Regional Court to stand trial on charges of participation in and directing a criminal organisation involved in the importation of cocaine, participation in and directing a criminal organisation involved in the importation of hashish, importation via Belgium of 94, 84, 200, 150, 400 and/or 700 kilograms of cocaine, and (attempted) importation via Sri Lanka of 10,150 kilograms of hashish.
In its judgment of 4 June 1999, following adversarial proceedings in the course of which four hearings were held between 22 February and 21 May 1999 and in which it had assessed the reliability of the written and oral evidence of Mr Z. in light of the arrangement of 6 November 1998 and had accepted the lawfulness of this arrangement, the Amsterdam Regional Court convicted the applicant of participation in a criminal organisation involved in the importation via Belgium of cocaine, participation in and directing a criminal organisation involved in the importation of hashish via Sri Lanka, importation of very large quantities of cocaine and 10,150 kilograms of hashish, and sentenced him to six years' imprisonment and payment of a fine of NLG 500,000 [226,890.11 euros]. The applicant filed an appeal with the Amsterdam Court of Appeal (Gerechtshof).
Between 17 January and 26 October 2000, eighteen hearings were held before the Amsterdam Court of Appeal. In the course of the proceedings the following relevant events occurred.
At the hearing held on 17 January 2000, the Court of Appeal agreed to summon eighteen of the fifty witnesses proposed by the applicant, including Mr Z., various officials of the public prosecution service, co‑suspects and other witnesses. It rejected the applicant's request to add to his case file copies of the Carex investigation documents, including the prosecution's closing speech and appeal submissions in the criminal proceedings against Mr Z. as well as all documents relating to the proceeds of crime investigation against Mr Z. The Court of Appeal held that the defence could question the Haarlem public prosecutor Ms C., who had been summoned at the request of the defence to give evidence before the Court of Appeal, on the criminal investigation and proceedings taken against Mr Z. As to the applicant's request that all documents on the arrangement concluded with Mr Z. be included in his case file, the Court stated that it assumed that all these documents were already so included. The Court of Appeal requested the advocate-general in charge of the applicant's prosecution before the Court of Appeal to verify whether this assumption was correct and whether, for reasons linked to the interests of the investigation and/or the safety of others, there remained objections to rendering legible passages in these documents that had been rendered illegible. It further rejected the applicant's request that all correspondence between Mr Z.'s lawyer and the prosecution authorities be included in his case file as it had not been demonstrated by the applicant that Mr Z. and his lawyer had no objections to the disclosure of these privileged documents.
The Haarlem public prosecutor Mr A. gave oral evidence before the Court of Appeal on 31 January and 3 July 2000. He denied that the applicant had been a suspect in the Carex investigation, which had concerned another suspect. He further stated that statements given by Mr Z. in the context of the first attempt to reach an arrangement – the CTC not having been involved in that attempt – had been recorded on tape. Although that tape should have been destroyed as no arrangement had been reached, it was still in existence. He further testified that he had not been involved in the further round of negotiations with Mr Z. on a possible arrangement. As to the reasons for the withdrawal of the prosecution's appeal against the judgment of 28 May 1998 in the case of Mr Z., Mr A. testified that this appeal had been filed because the prosecution had considered that there was sufficient evidence to convict Mr Z. also of the shipment of 700 kilograms of cocaine and that the sentence imposed was too low. However, after the Amsterdam advocate-general Ms D. – who at the material time had been unaware of the further negotiations with Mr Z. on a possible arrangement – had concluded that this appeal would stand no chance of success, it had been withdrawn. The withdrawal of the appeal as part of the arrangement with Mr Z. had never been a topic of discussion. He further denied ever having spoken with Ms D. about whether an appeal in the case of Mr Z. was opportune or feasible.
The public prosecutor Mr B. gave oral evidence before the Court of Appeal on 31 January and 17 February 2000, in particular on the arrangement concluded with Mr Z. and the procedural steps taken in this context. In reply to questions on a possible link between the withdrawal of the prosecution's appeal against the judgment of 28 May 1998 and this arrangement, Mr B. stated that he had told the Haarlem public prosecutor Ms C. that it would be convenient to file an appeal since this might induce Mr Z. to give a statement. He had never spoken with the advocate-general Ms D. about the chances of success of such an appeal, nor with Ms C. about the withdrawal of the appeal. He had informed the CTC of Mr Z.'s wishes in relation to a possible arrangement and that – on the basis of information he had subsequently obtained and verified –the Haarlem public prosecution department was prepared to withdraw the appeal. However, the Haarlem chief public prosecutor Mr H., apparently having changed his opinion, had subsequently informed the CTC President that he opposed the withdrawal of the appeal. This had given rise to an exchange of correspondence on whether Mr B. had misinformed the CTC. As Mr B. had not submitted this correspondence, the Court of Appeal – acting on a request by the defence – ordered him to submit the correspondence to the advocate‑general for inclusion in the applicant's case file. This correspondence was subsequently added to the applicant's case file. In so far as passages in the CTC documents had been rendered illegible, Mr B. pointed out that, according to the covering CTC letter of the acting CTC President of 8 February 2000, this had been done for the protection of others and the needs of the investigation interests. Mr B. further stated that he had been involved in the determination of what passages should be rendered illegible and that he subscribed to the reasons given by the acting CTC President for rendering these passages illegible. Mr B. refused to answer the question whether these passages concerned investigations – whether on-going or not yet opened – against other suspects.
In the course of Mr B.'s hearing before the Court of Appeal on 17 February 2000, the Court of Appeal examined a request of the defence to order the full disclosure of all passages rendered illegible in the CTC documents submitted to the Court of Appeal. The defence argued that these passages might contain unknown information intended to convince the CTC of the necessity to conclude an arrangement with Mr Z. After having deliberated, the Court of Appeal rejected this request, holding:
“The request of the defence is rejected and the witness [Mr B.] is not obliged to answer questions about the contents of the passages rendered illegible in the CTC documents. The court notes that it does not have the impression that on this point relevant information has been withheld by the witness, and that it must assess the arrangement on the basis of the available material in the case file, irrespective of the contents of the passages rendered illegible in the CTC documents.”
At the hearing held on 7 February 2000, the financial police detective Mr F. was heard before the Court of Appeal. He testified that he had carried out a proceeds of crime investigation into Mr Z. in the context of the Carex investigation and that the Carex investigation had not been directed against the applicant but against other suspects. He had not completed the proceeds of crime investigation into Mr Z., as Mr J. of the National Criminal Investigation Team (Landelijk Rechercheteam) had informed him in the spring or summer of 1998 that this investigation could be brought to a halt. He was of the opinion that, on that occasion, Mr J. had told him that the public prosecutor Mr B. would conclude an arrangement with Mr Z.
Mr Z. gave extensive oral evidence before the Court of Appeal on 10 and 14 February, 13, 17 and 27 April, and 22 May 2000. He confirmed having given about ten statements in July 1998 in the context of his arrangement with the prosecution authorities. He declared that he maintained these statements. Mr Z. also confirmed that earlier statements given by him to Mr A. had been recorded on tape.
At the hearing held on 14 February 2000, the defence requested that the tape-recorded conversations between Mr Z. and Mr A. be played to the Court of Appeal. Mr Z. indicated that he objected to this. Having deliberated, the Court of Appeal decided:
“... that, on the assumption that Mr Z. will give his permission, the tapes must be submitted on the understanding that the court prefers to play these tapes in private.”
At the hearing held on 13 April 2000, the defence reiterated its request to have the tapes played in public. The President of the Court of Appeal indicated that the decision previously taken by the Court of Appeal to play the tapes in private had also been influenced by Mr A.'s view that – in conformity with his agreement with Mr Z. – the contents of the tape‑recorded questionings would not be made public if no arrangement was reached as well as by the position adopted by Mr Z. on the matter. The latter indicated that he would withdraw his permission to allow the tapes to be played if they were to be played in public. The applicant's lawyer then informed the Court of Appeal that, in these circumstances and in the interests of the defence, he withdrew the request to have the tapes played in public. The Court of Appeal then ordered that the tapes be played in private, expressly pointing out that it had decided to listen to these tapes for the purpose of assessing the reliability of Mr Z.
The tapes containing the statements given by Mr Z. on 30 and 31 July 1997 were played to the Court of Appeal, sitting in private and in the presence of the parties, during its hearings on 13, 17 and 23 April and 22 May 2000. In his statements recorded on tape, Mr Z. mentioned a person he had called “Taartman” (pastry man) and, some time later, mentioned the applicant by name. In his oral evidence to the Court of Appeal, Mr Z. explained that, at the material time, he had not known that the applicant was the person known as “Taartman” and that the detectives who questioned him had told him that the applicant was “Taartman”.
The Amsterdam advocate-general Ms D. gave oral evidence on 17 February 2000, in particular on her involvement in the appeal brought by the prosecution against the judgment of 28 May 1998 in the case of Mr Z. She stated that the Haarlem public prosecutor Mr A. had sought her views, in her capacity as the contact advocate-general for the Haarlem regional public prosecution department, on the chances of the appeal succeeding. She had not known then that the Haarlem public prosecutor Ms C. had been in charge of the prosecution of Mr Z. before the Regional Court or that Mr A. was involved in CID activities. She recalled that, in her telephone conversation with Mr A., the word “deal” had been mentioned and that no deal had been concluded. She had not pursued this topic and had no knowledge about the contents of any deal with Mr Z. After having discussed the case with Mr A. over the telephone, she had concluded that an appeal against the judgment of 28 May 1998 would stand no chance of success as there was insufficient evidence to support the facts of which Mr Z. had been acquitted. She had never seen an appeal memorial of the prosecution in that case and explained that such a memorial only became important once the decision had been taken to pursue an appeal. She did not know that the appeal had in fact been withdrawn and that, in the context of an arrangement, Mr Z. had made about ten statements. She further had not had any contacts with the CTC about Mr Z.'s case.
When heard before the Court of Appeal on 21 February 2000, the Haarlem public prosecutor Ms C. declared that the applicant had never appeared as a suspect in the Carex case. She had dealt with that case until October 1998 when she had fallen ill for about one year. To her knowledge, the CID public prosecutor Mr A. had not had any involvement in the Carex case. At one point she had heard from Mr A. that he was having talks with Mr Z. about a possible arrangement. She and Mr A. had then agreed that Mr A. would deal with the arrangement and that she would handle the criminal proceedings against Mr Z., and that Mr A.'s dealings as regards an arrangement would in no way influence her handling of the criminal proceedings. However, at the first court hearing in the criminal proceedings against Mr Z., his lawyer had made references to an arrangement which had caused some consternation. After this experience, she took the view that an arrangement was not desirable as it could jeopardise the criminal proceedings. She had filed an appeal against the judgment of 28 May 1998 because she had felt that there was sufficient evidence, albeit difficult to assemble, of Mr Z.'s involvement in the shipment of the 700 kilograms of cocaine of which he had been acquitted and because she had found that the sentence imposed was too low. She had prepared an appeal memorial, which she could submit to the Court of Appeal. After she had filed the appeal, she had been contacted by Mr B. who had told her that negotiations were being held with Mr Z. about a possible arrangement. Until that point, she had been unaware of these further negotiations on an arrangement and, in her opinion, an appeal could only be withdrawn on legal grounds. Mr B. had also asked her about the proceeds of crime investigation against Mr Z. which, at that time, had not yet been completed. She had informed her superior, the Haarlem chief public prosecutor Mr H., about her conversation with Mr B., indicating to Mr H. that she felt that this development was not the proper way to go. Mr H. had agreed with her and had taken up the issue with someone else. She did not know the name of that person. She did not remember having been contacted by Mr B. before she had filed the appeal and she had only filed the appeal because she disagreed with the Regional Court's judgment and definitely not on the basis of a conversation with Mr B. Considering the case to be a rather special one, Ms C. had contacted the Amsterdam advocate-general Ms D., who had told her that she considered an appeal pointless. After internal discussions and on the basis of Ms D.'s opinion, the appeal had been withdrawn. Ms C. explained that in such a situation, it was common for an appeal to be withdrawn. Ms C. found highly surprising Ms D.'s evidence that she had never seen an appeal memorial in the case of Mr Z. as, following Ms D.'s request, she had sent her this document by fax.
A report dated 25 March 2000 prepared by Mr A., accompanied by the formal record of the questioning of Mr Z. on 30 and 31 July 1997, and the appeal memorial prepared by Ms C. in the case of Mr Z. were submitted to the Court of Appeal and added to the applicant's case file on 13 April 2000.
At the hearing held on 3 July 2000, the defence requested inter alia to have access to the Carex investigation case file in order to verify the documents from that file that might be of relevance for the applicant's case. The defence stated that it filed this request in order to be able to assess the chances of success of an appeal in the case of Mr Z. in connection with the withdrawal of that appeal. Having deliberated, the Court of Appeal rejected this request, holding:
“the request is rejected as the court fails to see in what way granting it can contribute – further – to any decision that must be taken by the court in the present case since – whatever may be of the withdrawal of the appeal in the case of Mr Z. – it has not been established that this has taken place for the purposes of obtaining unreliable or incorrect statements from him.”
In its judgment of 9 November 2000, the Court of Appeal quashed the Regional Court's judgment of 4 June 1999, convicted the applicant of participation in a criminal organisation having as its aim the importation of cocaine, participation in a criminal organisation having as its aim the importation of hashish and directing that organisation, repeated participation in offences under Article 2 § 1A of the Opium Act (Opiumwet) and participation in an attempted offence under Article 3 § 1A of the Opium Act. The court sentenced the applicant to nine years' imprisonment.
The Court considered at length the arguments raised by the defence to the effect that the arrangement concluded between the public prosecution service and Mr Z. was unlawful under domestic law. The Court of Appeal acknowledged the fact that the applicant's case file contained no record of the conversations and negotiations between Mr Z. and the public prosecution service, nor of the correspondence between his lawyer and the public prosecution service on the arrangement made with Mr Z. However, it found that these conversations and negotiations had been sufficiently clarified in the course of the appeal proceedings. After having examined the circumstances in which the arrangement had been concluded as well as the terms thereof, it concluded that, despite certain shortcomings, the arrangement was in conformity with the 1997 Directive on arrangements with criminals and was not contrary either to the principles governing the proper conduct of proceedings or the requirements of Article 6 of the Convention.
The Court of Appeal observed that there had been shortcomings, including: the failure to carry out any primary criminal investigation against the applicant; the fact that the public prosecutor Mr B. had unjustly given the CTC the impression that the statements of Mr Z. might shed further light on the “IRT affaire” [See, for further details, T.D. v. the Netherlands, no. 31127/96, Commission decision of 14 January 1998]; the absence of a written record of the conversations and negotiations with Mr Z. on a possible arrangement; the – failing an adequate recording – unclear course of events in relation to the filing and the withdrawal of the appeal in the criminal proceedings against Mr Z; the fact that a passage in the letter of 28 August 1998 from Mr B. to the chief public prosecutor had been rendered illegible whereas, after its disclosure, this passage had appeared to be relevant to the procedure for the establishment of the arrangement and was significant for the contents of that arrangement and had not been rendered illegible for reasons linked to the interests of the investigation; and the premature termination by the public prosecution service of the proceeds of crime investigation initiated against Mr Z.
However, the Court of Appeal held that it could not be said that these shortcomings constituted such serious breaches of the principles governing the proper conduct of proceedings that the applicant's right to a fair trial had been harmed as a result. It did, however, find that these shortcomings, taken together, constituted a defect which, in accordance with Article 359a of the Code of Criminal Procedure, should be taken into account in the determination of the applicant's sentence.
On this basis it decided not to impose a ten years' prison sentence, which it considered to be appropriate in the circumstances, but to reduce the applicant's sentence to nine years' imprisonment.
The Court of Appeal based the applicant's conviction on statements given by Mr Z., whose evidence was found to be reliable, credible and supported by other evidence, on statements given by co-suspects and other witnesses, on several official (foreign and domestic) police reports, on findings of the Forensic Laboratory (Gerechtelijk Laboratorium), and on statements given by the applicant.
The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad), submitting an extensive statement of grounds of appeal in cassation.
The Supreme Court gave judgment on 9 July 2002. It rejected the applicant's grounds of appeal in their entirety. Acting of its own motion, no such complaint having been raised by the applicant, the Supreme Court held that – given the delay between 9 November 2000, when the applicant had filed his appeal in cassation, and 29 January 2002, when it had commenced its examination of the appeal in cassation – the reasonable time requirement under Article 6 § 1 of the Convention had not been complied with. On that account, it quashed the sentence imposed on the applicant by the Court of Appeal and reduced it by six months.
As to the applicant's complaint that the Court of Appeal had unjustly ordered that the tape-recorded statements given by Mr Z. be played in private, the Supreme Court accepted the Court of Appeal's ruling on this point as legally correct and understandable, having regard also to the stance taken by Mr Z. on the matter and to the circumstance that, in the interests of the defence, the applicant's lawyer had withdrawn his request to have the recordings played in public.
In response to the applicant's complaints in respect of the arrangement between the public prosecution service and Mr Z., the Supreme Court rejected the applicant's argument that the lawfulness of the arrangement should have been examined on the basis of the Bill on undertakings given to witnesses in criminal proceedings. It held that, as the arrangement at issue had been made prior to the submission of that Bill to the Lower House of Parliament, the Court of Appeal had correctly examined the lawfulness of the arrangement under Article 6 of the Convention, the principles governing the proper conduct of proceedings and the 1997 Directive on arrangements with criminals. The Supreme Court further accepted as correct the conclusion of the Court of Appeal that the arrangement was lawful.
The Supreme Court rejected the remainder of the applicant's grounds of appeal, including his complaints that he was not granted access to the Carex investigation case file, to the passages rendered illegible in the so-called “CTC” documents and to the correspondence between the public prosecution department and Mr Z.'s lawyer. It based itself on the following summary reasoning:
“The remaining points of appeal do not provide grounds for overturning the judgment of the Court of Appeal (kunnen niet tot cassatie leiden). Having regard to Article 101a of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie), no further reasoning is called for, since these points of appeal do not give rise to a need for a determination of legal issues in the interest of legal unity and legal development.”
B. Relevant domestic law and practice
The Netherlands public prosecution service (openbaar ministerie) functions under the responsibility of the Minister of Justice, but is not an agency of the Ministry of Justice. It forms a part of the judiciary and its organisation is regulated by the Judiciary (Organisation) Act.
Pursuant to Article 134 of the Judiciary (Organisation) Act, the prosecution service consists of the National Office of the Public Prosecution Service (Parket-Generaal) which is composed of the Procurators General (procureurs-generaal) and their staff, the Regional Public Prosecution Services (arrondissementsparketten), the Public Prosecution Services at the Court of Appeal (ressortsparketten) and the National Organised Crime Prosecution Service (Landelijk Parket).
The public prosecution service is organised in a hierarchical manner and is headed by the Board of Procurators General (College van procureurs‑generaal) which is composed of no less than three and no more than five Procurators-General. It determines the investigation and prosecution policy rules.
In criminal proceedings before the Regional Court, the functions of the prosecution are exercised by a public prosecutor (officier van justitie) acting under the supervision of a chief public prosecutor (hoofdofficier van justitie) and, in criminal proceedings before the Court of Appeal, by an advocate‑general (advocaat generaal) under the supervision of a chief advocate-general (hoofdadvocaat-generaal).
On 1 July 1983 the Board of Procurators General issued a circular in which guidelines were laid down on deals with criminals (Richtlijn deals met criminelen). Special agreements with criminals were only allowed in exceptional cases, in which the investigative interest or the ending or prevention of crimes outweighed the disadvantages of these kinds of agreements (cases of life and death or cases of similar seriousness). Furthermore, these agreements should be a last resort and only to be used if it were likely that the aim pursued could not be reached by other means. The information to be obtained had to be essential to the realisation of the aim. The offer in return could only be granted in cases where the information provided has proved to be sound.
In the early 1990s serious concerns arose over methods of criminal investigation used in cases concerning organised crime, including those used by an Interregional Criminal Investigation Team (Interregionaal Recherche Team – "IRT"). A parliamentary commission of inquiry (parlementaire enquêtecommissie) was instituted which presented its final report on 1 February 1996. In this report, inter alia, agreements concluded with suspects testifying against co-accused were criticised. The commission was of the opinion that these kinds of agreements should be explicitly regulated by law and should in no event be allowed to lead to complete immunity from prosecution. The Minister of Justice subscribed to this opinion.
On 1 April 1997, the 1983 Directive on deals with criminal was repealed and replaced by the Directive on arrangements with criminals (Richtlijn afspraken met criminelen) of 13 March 1997. This Directive was published in the Netherlands Government Gazette (Staatscourant) 1997, no. 61).
Pursuant to this Directive, a written record must be kept of every step taken in the procedure leading up to an arrangement between a criminal and the public prosecution service, and an arrangement can only be concluded after approval by the Board of Procurators General. Before giving its approval, the Board must consult the Central Advisory Commission (Centrale Toetsingscommissie – “CTC”), which is an internal advisory body of the Netherlands prosecution service. The CTC was established on 7 December 1994 and is composed of members of the public prosecution service and the police. Its task is to advise the Board of Procurators General on intended deployment of special investigative powers and methods (bijzondere opsporingsbevoegdheden en methodieken). The 1997 Directive further stipulates that the final decision on the lawfulness of an arrangement is to be made by the court before which the evidence that has been obtained on the basis of an arrangement is to be submitted.
On 17 November 1997, a Bill on undertakings given to witnesses in criminal proceedings (toezeggingen aan getuigen in strafzaken) was submitted for approval to the Lower House of Parliament. At the time of the introduction of the present application, this Bill was still pending before Parliament.
Article 101a of the Judiciary (Organisation) Act provides as follows:
“If the Supreme Court considers that a complaint does not provide grounds for overturning the judgment appealed against and does not require answers to questions of law in the interests of the unity or development of the law, it may, in giving reasons for its decision on the matter, limit itself to that finding.”
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention that part of his trial was not conducted in public in that the Court of Appeal decided to listen in camera to the recordings of Mr Z.'s statements to the police. That decision harmed him in the exercise of his defence rights.
2. The applicant further complained under Article 6 § 1 that he was deprived of a fair trial in that he was not granted access to the case file on the Carex investigation, to the passages rendered illegible in the CTC documents and to the correspondence between the public prosecution service and Mr Z.'s lawyer. Furthermore, the Supreme Court failed to give sufficient reasons for its decision on this issue.
3.Also relying on Article 6 § 1, the applicant complained of a lack of sufficient reasoning in the judicial decisions given in his case. In his opinion, these decisions were at variance with the legislator's position, the 1997 Directive on arrangements with criminals and with relevant domestic case-law.
THE LAW
The applicant complained that the decisions of the Court of Appeal to listen to the tape-recorded statements of Mr Z. in private and to reject his requests for access to the Carex investigation case file, to the text of passages rendered illegible in the CTC documents and to the correspondence between the public prosecution service and Mr Z.'s lawyer were contrary to his rights under Article 6 § 1 of the Convention. In so far as relevant, this provision reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal ... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where ... the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
As to the applicant's complaint that the tape-recorded statements given by Mr Z. were played to the Court of Appeal in private, the Court notes that the applicant did not maintain his initial request to have these recording played to the Court of Appeal in public and withdrew this request at the hearing held on 13 April 2000. In these circumstances, the Court finds that, on this point, the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention (see Sesztakov v. Hungary, no. 59094/00, §§ 35-36, 16 December 2003).
It follows that this complaint must be rejected for being incompatible ratione personae, pursuant to Article 35 §§ 3 and 4 of the Convention.
The applicant further complained of the rejection of his requests for access to specific documents or parts thereof.
The Court reiterates that it is a fundamental aspect of the right to a fair trial that criminal proceedings should be adversarial and that there should be equality of arms between the prosecution and the defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition Article 6 § 1 requires that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused. However, the entitlement to disclosure of relevant evidence is not an absolute right. There may be competing interests which must be weighed against the rights of the accused. In cases where material evidence has been withheld from the defence on public interest grounds, it is not the role of the Court to decide whether or not this was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them. The Court's task is to scrutinise the decision-making procedure to ensure that, as far as possible, it complied with the requirements to provide adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interest of the accused (see, among other authorities, Rowe and Davis v. the United Kingdom [GC], no. 28901/95, §§ 60-62, ECHR 2000-II, and Jasper v. the United Kingdom [GC], no. 27052/95, §§ 51-53, 16 February 2000).
Turning to the facts of the present case, the Court considers that the documents in respect of which the applicant unsuccessfully sought access cannot, as such, be regarded as material evidence. It clearly appears that the applicant did not seek access to these documents in order to be able to demonstrate that he had not been involved in the facts alleged against him. His aim was to challenge the lawfulness of the arrangement concluded with Mr Z., in particular in relation to the question whether the withdrawal of the appeal filed by the prosecution in the criminal proceedings against Mr Z. was somehow linked to the arrangement concluded between Mr Z. and the public prosecution service.
On this point, the Court observes that the manner in which the proceedings against the applicant were conducted gave the trial courts and the defence ample opportunity to examine the lawfulness of this arrangement. Extensive oral evidence, including on the issue of the withdrawal of the appeal in the proceedings against Mr Z., was given by the public prosecution officials involved in the criminal proceedings against Mr Z. and in the negotiations with Mr Z. on an arrangement, as well as by Mr Z. himself.
Having regard to the reasons given by the Court of Appeal for not acceding to the applicant's requests and recalling that national courts have a wide margin of discretion in assessing the relevance of proposed evidence (see Erdem v. Germany (dec.), no. 38321/99, 9 December 1999), the Court is of the opinion that the decisions complained of cannot be regarded as having deprived the applicant of a fair hearing within the meaning of Article 6 § 1 of the Convention.
It follows that this part of the application must be rejected under Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.
The applicant also complained that the judicial decisions given in his case were at variance with the legislator's position, the 1997 Directive on arrangements with criminals and with relevant domestic case-law.
To the extent that the applicant complains that the domestic courts unjustly concluded that the arrangement between Mr Z. and the public prosecution service was lawful under domestic law, the Court reiterates that it is not a court of appeal from domestic courts and that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. It is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 76, ECHR 2001-IX). Consequently, the sole issue that arises in respect of this part of the application is whether the use in evidence of the statements given by Mr Z. was contrary to the applicant's rights under Article 6 § 1.
The Court appreciates that the use of statements made by witnesses in exchange for immunity or other advantages forms an important tool in the domestic authorities' fight against serious crime. However, the use of such statements may put in question the fairness of the proceedings against the accused and is capable of raising delicate issues as, by their very nature, such statements are open to manipulation and may be made purely in order to obtain the advantages offered in exchange, or for personal revenge. The sometimes ambiguous nature of such statements and the risk that a person might be accused and tried on the basis of unverified allegations that are not necessarily disinterested must not, therefore, be underestimated (see, mutatis mutandis, Labita v. Italy [GC], no. 26772/95, § 157, ECHR 2000‑IV). However, the use of these kinds of statements does not in itself suffice to render the proceedings unfair (see Lorsé v. the Netherlands (dec.), no. 44484/98, 27 January 2004; and Verhoek v. the Netherlands (dec.), no. 54445/00, 27 January 2004). This depends on the particular circumstances in each case.
In the instant case the public prosecution service concluded an arrangement with Mr Z. and statements obtained from him were used in evidence against the applicant. The Court observes that, from the outset, the applicant and the domestic courts were aware of this arrangement and extensively questioned Mr Z. in order to test his reliability and credibility. Moreover, the domestic courts showed that they were well aware of the dangers, difficulties and pitfalls surrounding arrangements with criminal witnesses. In the judgments handed down in the applicant's case, all aspects of the agreements were extensively and carefully scrutinised, with due attention being paid to the numerous objections raised by the defence.
The Court concludes therefore that it cannot be said that the applicant's conviction was based on evidence in respect of which he was not, or not sufficiently, able to exercise his defence rights under Article 6 § 1 of the Convention. Moreover, the applicant's conviction was not only based on the statements given by Mr Z., but also on statements given by co-suspects and other witnesses, on several official (foreign and domestic) police reports, on findings of the Forensic Laboratory, and on statements given by the applicant. Consequently, this part of the application must also be rejected under Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.
The applicant further complained of a lack of sufficient reasoning in the judicial decisions given in his case. In so far as this complaint has been substantiated, the Court recalls that Article 6 § 1 does oblige domestic courts to give reasons for their decisions, but this cannot be understood as requiring a detailed answer to every argument. In dismissing an appeal an appellate court may, in principle, simply endorse the reasons for the lower court's decision (see Van de Hurk v. the Netherlands, judgment of 19 April 1994, Series A no 288, p. 20, § 61, Ruiz Torija v. Spain, judgment of 9 December 1994, Series A no. 303-A, p. 12, § 29, and García Ruiz v. Spain [GC], no. 30544/96, § 29, ECHR 1999-I).
The Court has found no reasons for holding that the reasons given by the Court of Appeal and the Supreme Court for their decisions were insufficient or inadequate for the purposes of Article 6 § 1 of the Convention.
It follows that this complaint must also be rejected under Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.
For these reasons, the Court unanimously
Declares the application inadmissible.
T.L. EarlyJ.-P. Costa
Deputy RegistrarPresident
Full & Egal Universal Law Academy