EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 20524/92
Désiré Doorson
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 11 October 1994)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 15) . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5 - 10). . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 11 - 15) . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 16 - 61). . . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 16 - 44) . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 45 - 61) . . . . . . . . . . . . . . . . . . . . 7
III. OPINION OF THE COMMISSION
(paras. 62 - 84). . . . . . . . . . . . . . . . . . . . . . .11
A. Complaints declared admissible
(para. 62) . . . . . . . . . . . . . . . . . . . . . . .11
B. Point at issue
(para. 63) . . . . . . . . . . . . . . . . . . . . . . .11
C. As regards Article 6 of the Convention
(paras. 64 - 83) . . . . . . . . . . . . . . . . . . . .11
CONCLUSION
(para. 84) . . . . . . . . . . . . . . . . . . . . . . .14
DISSENTING OPINION OF Mr. H. DANELIUS, JOINED BY
MM. A. WEITZEL, A.S. GÖZÜBÜYÜK, J.-C. SOYER,
C.L. ROZAKIS, Mrs. J. LIDDY, MM. L. LOUCAIDES, G.B. REFFI,
M.A. NOWICKI, N. BRATZA, J. MUCHA and E. KONSTANTINOV . . . . . . .15
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . .17
APPENDIX II : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . . .18
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Dutch citizen, born in 1958 and resident in
Amsterdam. He was represented before the Commission by Mr. G.P. Hamer,
a lawyer practising in Amsterdam.
3. The application is directed against the Netherlands. The
respondent Government were represented by their Agent,
Mr. K. de Vey Mestdagh of the Netherlands Ministry of Foreign Affairs.
4. The case concerns the alleged unfairness of criminal proceedings
against the applicant in respect of the administration of evidence
before the trial court. The applicant invokes Article 6 paras. 1 and
3 of the Convention.
B. The proceedings
5. The application was introduced on 27 June 1992 and registered on
24 August 1992.
6. On 8 February 1993 the Commission decided, pursuant to
Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government's observations were submitted on 23 April 1993.
The applicant replied on 1 June 1993.
8. On 29 November 1993 the Commission declared admissible the
applicant's complaints relating to the fairness of the proceedings and,
in particular, to the restrictions of the rights of defence during the
hearing of witnesses. It declared inadmissible the remainder of the
application.
9. The text of the Commission's decision on admissibility was sent
to the parties on 8 December 1993 and they were invited to submit
further observations. The Government submitted observations on
28 January 1994 and the applicant's observations were submitted on
8 February 1994.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present :
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
12. The text of this Report was adopted on 11 October 1994 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is :
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. In August 1987 the prosecution authorities decided to start an
action against the nuisance caused by drug trafficking in Amsterdam.
By showing photographs of known drug dealers to about 150 drug abusers,
the police collected statements of the latter. However, since after a
similar action in 1986 drug abusers who had made statements to the
police had been threatened, it appeared that most drug abusers only
were prepared to make anonymous statements about drug dealers.
17. In September 1987 the police received information from a person
referred to by the police under the code name GH.021/87 that the
applicant was engaged in drug trafficking. After having found the
applicant's identification photograph, which had been taken in 1985,
in their records, the police included it in the collection of
photographs they showed to drug abusers.
18. On 12 April 1988, after some drug abusers had declared to the
police that they recognised the applicant's photograph and that he had
sold drugs, he was arrested as suspected of drug offences. Six of these
drug abusers remained anonymous; they were referred to by the police
under the code names Y.05, Y.06, Y.13, Y.14, Y.15 and Y.16. Moreover,
there were two persons whose identity was disclosed, namely R. and N.
19. A preliminary judicial investigation (gerechtelijk vooronderzoek)
was opened, during which the applicant's lawyer submitted a request for
an examination of the witnesses referred to in the police report in the
applicant's case. The investigating judge (rechter-commissaris)
accordingly requested the police to bring these witnesses before him
on 30 May 1988 between 9.30 and 16.00 hours. The applicant's lawyer was
informed about this and was invited to attend the questioning of these
witnesses before the investigating judge.
20. On 30 May 1988 the applicant lawyer arrived at 9.30 hours at the
investigating judge's chambers, but, after some time had elapsed and
none of the witnesses had appeared, he believed that no questioning
would take place and left for another appointment. After the lawyer had
left, the witnesses turned up and were heard by the investigating judge
in the absence of the lawyer, witness Y.15 at about 11.15 hours and
witness Y.16 at about 15.00 hours.
21. On 19 July 1988 the applicant appeared before the Regional Court
(Arrondissementsrechtbank) of Amsterdam on charges of drug trafficking.
Following the prosecutor's request, the court decided to adjourn its
examination until 25 August 1988.
22. On 25 August 1988 the Regional Court resumed the proceedings. As
the Regional Court was differently composed, it recommenced its
examination of the case. The court rejected a request by the defence
to refer the case back to the investigating judge for an examination
of the six anonymous witnesses and, upon the defence's request thereto,
ordered that the witnesses R. and N. be brought before the court. The
Regional Court further rejected the applicant's request for his release
from his detention on remand and adjourned its further examination
until 4 October 1988.
23. On 4 October 1988 the Regional Court resumed the proceedings. In
view of the fact that all three judges of the Regional Court had been
replaced, the court again recommenced its examination. The court
rejected the defence's new request to have the six anonymous witnesses
examined. The witness N. had appeared, R. had not appeared. N. was
questioned before the court and both parties to the proceedings were
provided with an opportunity to put questions to him. N. changed his
previous statement and now denied that the applicant had sold drugs to
him. The court adjourned its further examination until 29 November 1988
ordering the appearance of the witnesses R. and N., and of L., an
expert in the field of problems related to drug trafficking and abuse.
24. On 29 November 1988 the Regional Court resumed its examination.
The expert L. had appeared and was questioned before the court. The
witnesses R. and N. had not appeared. The defence withdrew its request
to have R. and N. examined before the court in order to avoid a further
adjournment of the proceedings.
25. On 13 December 1988 the Regional Court convicted the applicant
of drug trafficking and sentenced him to 15 months' imprisonment.
26. The applicant appealed to the Court of Appeal (Gerechtshof) of
Amsterdam which held a number of hearings in the case.
27. The applicant requested that the six anonymous witnesses be heard
by the Court of Appeal. On 30 November 1989 the Court of Appeal decided
to verify the necessity of upholding the anonymity of the witnesses and
to this end decided to refer the case back to the investigating judge.
The Court of Appeal also requested the investigating judge to examine
the anonymous witnesses whilst giving the defence the opportunity to
put questions to these witnesses. The Court of Appeal further ordered
the appearance of the witnesses R. and N. and the expert L. before the
court.
28. On 14 February 1990 the investigating judge, who had previously,
on 25 August 1988, as a member of the Regional Court participated in
a decision to prolong the applicant's detention on remand, heard the
witnesses Y.15 and Y.16 in the presence of the applicant's lawyer, who
was provided with the opportunity to put questions to them but who was
not informed of their identity. Neither Y.15 nor Y.16 refused to answer
any of the questions put by the applicant's lawyer. They both declared
that they had bought drugs from the applicant and that they had seen
him selling drugs to others.
29. On that occasion witness Y.16, whose identity was known to the
investigating judge, expressed the wish to remain anonymous and not to
appear in court, since in the past he had been injured by another drug
dealer after he had "talked". He feared similar action by the
applicant. Witness Y.15, whose identity was known to the investigating
judge, also wished to remain anonymous and not to appear in court,
since in the past he had been threatened by drug dealers if he would
talk. He further stated that the applicant was rather aggressive.
30. By letter of 17 April 1990 the applicant's lawyer requested the
prosecution to summon the witnesses Y.05, Y.06, Y.13, Y.14, Y. 15 and
Y.16 before the Court of Appeal's hearing of 10 May 1990. On 2 May 1990
the public prosecutor (Procureur-Generaal) rejected this request on the
ground that, in the presence of the applicant's lawyer, Y.15 and Y.16
had been heard for a second time by the investigating judge who was
aware of their identity and had found that they had valid reasons for
their wish to remain anonymous. He further stated that witness Y.06 had
been expelled from the Netherlands and that his place of residence was
unknown. Witness Y.13's place of residence was unknown, and as regards
the witnesses Y.05 and Y.14, it was very doubtful, in view of the
unsuccessful attempts to bring these witnesses before the investigating
judge, whether, if summoned, they would appear before the Court of
Appeal. It was also necessary to take into account the desirability of
bringing the proceedings to an end as early as possible.
31. On 10 May 1990 the Court of Appeal recommenced its examination
in view of its changed composition. In the course of the hearing on
that date it gave further consideration to the wish of the witnesses
Y.15 and Y.16 to remain anonymous and concluded that it had been argued
on sufficiently convincing grounds that these two witnesses had good
reasons to feel seriously threatened, and accordingly did not call
these witnesses. As regards the witnesses Y.05, Y.06, Y.13 and Y.14 the
court accepted the findings of the investigating judge that it would
be useless to call these witnesses before the court and rejected the
defence's request in this respect. The Court of Appeal further ordered
that the witnesses R. and N. be brought before it by force.
32. On 28 August 1990 the witness N. was heard by the Court of Appeal
in the applicant's presence and the applicant's lawyer was given the
opportunity to question this witness. N. declared that he had lied to
the police and withdrew his previous statement in which he had accused
the applicant of drug traffic. The Court of Appeal also heard the
expert L.
33. The witness R. repeatedly failed to appear before the Court of
Appeal. Following the court's order of 10 May 1990 that he be brought
by force, he was present at a hearing on 28 August 1990, but
disappeared from the court before he had been heard and could not be
found again. The court subsequently ordered that he be brought by force
before the court at its next hearing on 22 November 1990. On
28 August 1990 the Court of Appeal also decided to refer the case back
to the investigating judge, requesting her to draft a procès-verbal on
her findings about the reliability of the witnesses Y.15 and Y.16.
34. On 10 May 1990 the applicant also requested the hearing of K.,
a researcher who had performed a great deal of research about drug
abusers in Amsterdam. Although K. was present at the hearing on
28 August 1990, the Court of Appeal decided not to hear him as an
expert on the ground that his statement could not be expected to
contribute to the elucidation of the facts of the case.
35. In the procès-verbal of 19 November 1990 containing her findings,
the investigating judge stated that the two anonymous witnesses were
reliable and that their wish to remain anonymous was well-founded.
36. At the Court of Appeal's hearing on 22 November 1990, the witness
R. did not appear and could not be found by the police. The court
subsequently decided that a new order for R.'s appearance would be
useless. During the same hearing the public prosecutor requested that
a police officer, I., who had been involved in the investigation and
who was present on that occasion, be heard. Despite the protests of
the defence, the Court of Appeal agreed to the request, and I. was
heard concerning the way in which the investigation had been conducted.
He confirmed that it had occurred in the past that convicted drug
dealers, after having served their sentence, had threatened and
assaulted drug abusers who had made incriminating statements against
them.
37. On 6 December 1990 the Court of Appeal quashed the Regional
Court's judgment of 13 December 1988 in view of a different approach
to the evidence, found the applicant guilty of drug offences and
sentenced him to 15 months' imprisonment.
38. The Court of Appeal rejected the applicant's request that the
prosecution be declared inadmissible, finding no element in the
investigation of the applicant's case which would justify such a
decision.
39. As regards the applicant's complaint that the majority of the
witnesses had not been heard in the presence of the applicant or his
lawyer, the court stated that it had based its conviction on statements
by the witnesses N., R., Y.15 and Y.16, the latter two having been
questioned by the investigating judge in the presence of the
applicant's lawyer. The Court of Appeal added that it had used their
statements with the necessary caution and reticence. It held that these
statements could be used in evidence, inter alia, in view of their
consistency and having regard to the statement of the police officer
I., since the reliability of the witnesses and the well-foundedness of
their wish to remain anonymous had been sufficiently verified by the
investigating judge.
40. The Court of Appeal rejected the applicant's complaint that the
investigating judge, who had examined the witnesses Y.15 and Y.16, was
biased as, on 25 August 1988, as a member of the Regional Court, she
had participated in a decision to prolong the applicant's detention on
remand. The Court of Appeal noted that the Regional Court's hearing on
25 August 1988 had been brief; the Regional Court had only considered
the applicant's request to have the six anonymous witnesses examined
and his request for release. During that hearing the Regional Court had
not examined the substance of the applicant's case. The Court of Appeal
further found that it had not appeared nor been argued that the
investigating judge, before acting as an investigating judge, had had
any contacts with those witnesses. Finally, noting the functional
differences between an investigating judge and a member of a trial
court, the Court of Appeal considered that no particular facts or
circumstances had been referred to or had been disclosed warranting the
conclusion that she was not able to form a free and unprejudiced
opinion as to the reliability of the witnesses she had examined, or
that she was biased in her examination of those witnesses.
41. The applicant's subsequent appeal to the Supreme Court (Hoge
Raad) was rejected on 24 March 1992.
42. Insofar as the applicant complained that he had not been allowed
to hear witnesses and experts on the same conditions as the public
prosecutor, as the Court of Appeal had, on the one hand, refused to
hear the expert K. in order to obtain information about the anonymous
witnesses who were all drug abusers and, on the other hand, agreed to
hear I. at the public prosecutor's request, the Supreme Court accepted
the Court of Appeal's reasoning for its refusal to hear K., also taking
into account that the applicant had not indicated in his request to
what extent a statement of K. could be relevant for the determination
of the charges against him.
43. As regards the applicant's complaint under Article 6 paras. 1 and
3 (d) of the Convention that his conviction was essentially based on
statements by persons whom he had not been able to hear in person, in
particular R. and the anonymous witnesses Y.15 and Y.16, the Supreme
Court held in respect of the witnesses Y.15 and Y.16 that Article 6 was
not violated since these witnesses had been examined by the applicant's
lawyer. In respect of the witness R. the Supreme Court accepted the
Court of Appeal's decision of 22 November 1990 that a new order for
R.'s appearance would be useless. Given the Court of Appeal's attempts
to examine R. and the fact that R.'s statement was sufficiently
corroborated by other evidence, the Supreme Court found that the Court
of Appeal could legally admit and use R.'s statement in evidence.
44. In respect of the applicant's complaint that the investigating
judge, who had decided on the applicant's detention on remand, was not
impartial when hearing the witnesses Y.15 and Y.16, the Supreme Court
accepted the Court of Appeal's finding that there were no reasons for
the assumption that the investigating judge lacked the required
impartiality and that the applicant's fear that she was biased was
unfounded. The Supreme Court considered the situation where a judge of
a first instance trial court - after having been involved in decisions
rejecting requests to suspend a court hearing, requests to refer a case
back to an investigating judge in order to examine anonymous witnesses
or requests to suspend or end an accused's detention on remand - in the
capacity of investigating judge examines witnesses upon the Court of
Appeal's request. The Supreme Court found that this does not, in
general, mean that in the proceedings on appeal the requirement of a
hearing by an impartial tribunal within the meaning of
Article 6 para. 1 of the Convention has not been complied with. It
found no reasons in the applicant's case warranting a different
conclusion.
B. Relevant domestic law
45. Section 168 of the Dutch Code of Criminal Procedure (Wetboek van
Strafvordering, hereafter: "CCP") provides that each District Court has
one or more investigating judges to whom criminal cases are entrusted.
They are nominated from amongst the members of the District Court.
46. It is open to the public prosecutor, under Section 181 CCP, to
request what is called - in order to distinguish it from the subsequent
investigation at the trial - a preliminary judicial investigation
(gerechtelijk vooronderzoek).
47. It is the task of the investigating judge to conduct such an
investigation by gathering evidence in preparation of the examination
by the case before the trial court. The investigating judge must act
impartially, by also collecting evidence which might exculpate the
suspect.
48. The investigating judge will hear the suspect, witnesses and
experts as soon as possible and as often as required (Section 185 CCP).
The examination of witnesses and other activities by the investigating
judge are recorded in procès-verbaux (Section 172 CCP). Both the public
prosecutor and defence counsel are, in principle, entitled to be
present at those hearings (Sections 185 para. 2 and 186 CCP) and, even
if they are absent, to give notice of questions they wish to be put to
the persons heard. Most investigating judges invite the accused and his
counsel to attend when they hear witnesses. The law does not make the
presence of counsel for the defence compulsory during the investigation
by the police.
49. Apart from the collection of evidence, the investigating judge
also decides on requests of the prosecuting authorities to detain a
suspect on remand (inbewaringstelling) for six days (Section 63 CCP).
In this respect an arrested and detained suspect must be brought before
the investigating judge within 72 hours following his arrest. The
investigating judge can prolong this detention for a another period of
up to six days (Section 64 CCP). The competence to order any further
prolongation of a suspect's detention on remand lies with the trial
court (Sections 65 and 75 CCP).
50. The preliminary judicial investigation provides a basis for a
decision by the prosecuting authorities with regard to charges being
brought against a suspect, and also serves to clarify matters which
cannot properly be investigated at the trial. The investigating judge
will close the preliminary investigation when it is completed. Both the
suspect and the prosecuting authorities will be informed about the
closure (Section 237 CCP).
51. If the public prosecutor finds that the results of the
preliminary judicial investigation justify prosecution, he will notify
the suspect and refer the case to the court. The investigation at the
trial will then follow.
52. If, pending its examination, the trial court considers that a
further investigation is called for, it can decide to refer the case
back to the investigating judge indicating the object of the
investigation and, if necessary, the way it should be carried out
(Sections 316, 415 and 420 CCP)
53. Pursuant to Section 516 CCP a suspect may challenge (wraking) a
judge when he considers there are facts or circumstances as a result
of which the judicial impartiality could be open to doubt. If it
concerns a single judge, such as an investigating judge, the suspect
must submit such a request in writing to the judge concerned, who will
then decide the request himself (Section 518 para. 1 CCP). Against a
negative decision an appeal lies with the court of which the challenged
judge forms a part (Section 518 para. 2 CCP).
54. At the time in question, the relevant law and practise as regards
the summoning of witnesses to a court hearing was as follows: a witness
whose summoning has been asked for by the suspect, and who has not been
summoned by the public prosecutor, is to be summoned by the court,
unless the court - being of the opinion that summoning is superfluous
or fruitless - finds that the suspect could not, in all fairness, be
harmed in his defence if the witness is not summoned (Section 280
para. 4 CCP).
55. As regards the evidence in criminal proceedings, Section 338 CCP
provides that the finding that the accused has committed the act with
which he is charged may be made by a trial judge only if he has been
fully convinced, after the investigation at the trial, by the contents
of "legal means of evidence" (wettige bewijsmiddelen). The latter
consist, according to Section 339 CCP, exclusively of (i) the judge's
own observations; (ii) statements made by the accused; (iii) statements
made by a witness; (iv) statements made by an expert; and (v) written
documents.
56. Evidence in the third category is defined in Section 342 CCP,
which reads:
"1. A statement by a witness is understood to be his statement, made in the investigation at the trial, of facts or circumstances which he himself has seen or experienced. 2. The judge cannot accept as proven that the defendant has committed the act with which he is charged, solely on the statement of one witness." 57. Evidence in the fifth category is defined in Section 344 CCP, which, as far as is relevant, reads: "1. Written documents are understood to be: 1° ...; 2° official reports and other documents, drawn up in the lawful form by bodies and persons who have the proper authority and containing their statement of facts or circumstances which they themselves have seen or experienced; 3° ...; 4° ...; 5° all other documents; but these are valid only in conjunction with the content of other means of evidence. 2. (...)." 58. In actual practice, the course of a procedure in a criminal case differs from that suggested by the CCP. This is to a considerable extent due to a leading judgment of the Supreme Court of 20 December 1926 (Nederlandse Jurisprudentie 1927, no. 85). According to this judgment it is permissible to use as evidence declarations made by the accused or by a witness to a police officer, as recorded in the latter's official report. 59. These rulings permit the use, as "legal means of evidence" within the meaning of Sections 338 and 339 CCP, of depositions made by a witness not at the trial but before a police officer or the investigating judge, provided they are recorded in an official report which is read out in court. In the great majority of cases, witnesses are not heard at the trial but either only by the police or also by the investigating judge. 60. Although the investigating judge must ask the witness for his particulars (Section 190 CCP) and the witness must answer this question (Section 221 CCP), and this answer is recorded in a procès-verbal, the Supreme Court has accepted procès-verbaux containing statements by anonymous witnesses as legal means of evidence (cf., Hoge Raad, judgment of 25 september 1984, NJ 1985, no. 426; and Hoge Raad, judgment of 12 November 1985, NJ 1986, no. 409). 61. Following the Court's judgment in the Kostovski case (Eur. Court H.R., judgment of 20 November 1989, Series A no. 166), the Supreme Court defined the conditions under which statements of an anonymous witness may be used in evidence. According to these conditions such a statement must have been taken by a judge who is aware of the identity of the witness; in the procès-verbal of the hearing of such a witness, the judge must have expressed his opinion as to the reliability of the witness and as to the reasons for the wish of the witness to remain anonymous; moreover, the judge must provide the defence with the opportunity to put questions or have questions put to this witness (Hoge Raad, judgment of 2 July 1990, NJ 1990, no. 692). III. OPINION OF THE COMMISSION A. Complaints declared admissible 62. The Commission has declared admissible the applicant's complaints concerning the unfairness of the hearing in his case and notably about the impossibility for him to question the witnesses against him. B. Point at issue 63. The issue to be determined is whether there has been a violation of Article 6 paras. 1 and 3(d) (Art. 6-1, 6-3-d) of the Convention. C. As regards Article 6 (Art. 6) of the Convention 64. Article 6 (Art. 6) of the Convention, insofar as relevant, reads: "1. In the determination of (...) any criminal charge against him, everyone is entitled to a fair (...) hearing (...) by a (...) tribunal (...). (...) 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; (...)." 65. The applicant submits that he did not have a fair trial as he was convicted essentially on the basis of the statements of three persons who were never heard in his presence and whom he never had the possibility to interrogate. Two of these persons were anonymous (Y.15 and Y.16) and one disappeared from the trial court before he was heard (R.). He argues that a confrontation with these witnesses was essential in order to ascertain whether they recognised him, since they made their statements after being shown a photograph of him taken in 1985. The applicant further argues that the witnesses Y.15 and Y.16 had been granted anonymity as they had been threatened in the past in similar circumstances and not in view of any possible threats by or on behalf of the applicant. 66. The applicant further submits that the Court of Appeal considered the two anonymous witnesses to be reliable on the basis of the declaration of the investigating judge who, at a previous stage of the proceedings, had participated in a decision in which the applicant's detention on remand was prolonged because of the statements of the anonymous witnesses, and who had not given any explanation as to why these witnesses should be considered reliable; in fact, in view of their way of life as drug addicts, they could not be regarded as reliable witnesses. He finally complains that the Court of Appeal rejected his request to hear the expert K., whereas I. was heard following a request by the prosecution. 67. The Government submit that the criteria established by the Supreme Court for the use of anonymous statements following the Kostovski judgment (see para. 61) have been complied with in the present case. The particulars of Y.15 and Y.16 were known to the investigating judge, as appears from the procès-verbal of 14 February 1990. Moreover, it appears from the procès-verbal of 19 November 1990 that the investigating judge had considered these witnesses to have well-founded reasons for wishing to remain anonymous and not to appear in court. 68. The Government further point out that the witnesses Y.15 and Y.16 were questioned on two different occasions by the investigating judge. On the first occasion, on 30 May 1988, the applicant's lawyer left of his own motion before these witnesses were heard, and the State cannot be held responsible for his absence. On the second occasion, on 14 February 1990, the applicant's lawyer was present and had the opportunity to put questions to the two witnesses. 69. In the Government's view it was not necessary for the applicant to be confronted with the witnesses since all of them, including those whose statements had not been used as evidence, had positively identified the applicant from the photograph independently of each other. The Government also agree with the Court of Appeal in finding that the applicant's defence was not prejudiced by the fact that he had been unable to examine R. Consequently, in the Government's view he had a fair hearing. 70. The Commission considers that the applicant's complaints are to be examined in relation to the general right to a fair hearing protected by Article 6 para. 1 (Art. 6-1) of the Convention and to the specific right regarding the taking of evidence dealt with in Article 6 para. 6(d) (Art. 6-6-d) of the Convention. Since the rights set out in para. 3 of Article 6 (Art. 6-3) are specific aspects of the right to a fair hearing ensured by para. 1 of this Article (Art. 6-1) (cf. Eur. Court H.R., T. v. Italy judgment of 12 October 1992, Series A no. 245-C, p. 41, para. 25), the Commission will consider the present complaints under the two provisions taken together. 71. The Commission recalls that the admissibility of evidence is primarily governed by the rules of domestic law, and that as a general rule it is for the domestic courts to assess the evidence before them (cf. Eur. Court H.R., Saïdi judgment of 20 September 1993, Series A no. 261-C, p. 56, para. 43). 72. However, for the purposes of the Convention it must be ascertained whether the proceedings in their entirety, including the way in which evidence was taken, were fair (cf. Eur. Court. H.R., Edwards judgment of 16 December 1992, Series A no. 247-B, pp. 34-35, para. 34). 73. All evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. However, the use as evidence of statements obtained at the stage of the police inquiry or the judicial investigation is not in itself inconsistent with paras. 3(d) and 1 of Article 6 (Art. 6-1, 6-3-d), provided that the rights of the defence have been respected. As a rule these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when the witness was making his statement or at a later stage of the proceedings (cf. Saïdi judgment, loc. cit., p. 56, para. 43). 74. The Commission notes that in the present case the Dutch courts were confronted with the question whether the identification by various persons of the applicant as a drug dealer was sufficiently reliable to result in the applicant's criminal conviction. The court which in the last resort examined the questions of evidence was the Court of Appeal. It appears from that court's judgment that it based its finding of guilt essentially on the statements of four witnesses, i.e. N. and R. as well as the two anonymous witnesses Y.15 and Y.16. 75. The Commission must therefore examine whether the four witnesses N. and R., Y.15 and Y.16 gave their evidence under conditions which ensured the applicant's rights of defence and his right to a fair trial. 76. As regards N., the Commission recalls that he had made an incriminating statement about the applicant to the police but that he changed this statement when he was heard before the Regional Court and the Court of Appeal. He then denied that the applicant had sold drugs to him and stated that he had lied to the police. 77. When N. was heard before the courts, both parties had the opportunity of putting questions to him, and the courts were able to form a view about the veracity of his declarations. It could not affect the fairness of the proceedings if, in such a situation, the courts compared N.'s statement before the police with those which he made before the courts and formed an opinion on the value of these various statements as evidence in favour of or against the applicant. 78. The Commission further notes that both the Regional Court and the Court of Appeal made attempts to hear R. as a witness but that R. failed to appear before the Regional Court and, when he was first summoned, also before the Court of Appeal. However, he was subsequently brought by force to the Court of Appeal but disappeared from the court building before he had been heard. After this it was not possible to trace him. In these circumstances, when it proved impossible to hear R. directly before the courts, it cannot be regarded as unfair if the courts took into account the statement R. had made to the police. 79. As regards the witnesses Y.15 and Y.16, it is true that their identity was not disclosed to the defence. However, the investigating judge knew who they were (cf. Eur. Court H.R., Kostovski judgment of 20 November 1989, Series A no. 166, p. 20, para. 43), and the Commission finds no reason to doubt that their wish to remain anonymous was well-founded in view of the risks to which they might otherwise have been exposed. 80. Moreover, Y.15 and Y.16 were heard on 14 February 1990 by the investigating judge in the presence of the applicant's lawyer who then had the opportunity of putting questions to them. 81. It is true that in the present case, which concerned a problem of identification, it would have been desirable that the persons who had identified the applicant from a photograph would subsequently have been confronted with him so as to make sure that they also recognised him in person. However, there were, in the Commission's opinion, valid reasons why this was not done. In such circumstances, the principle of a fair trial required that the evidence be evaluated with special caution. Since, in the present case, several persons had independently identified the applicant from a photograph as being a drug dealer and the value of this and other evidence was extensively discussed in adversarial proceedings, the Commission cannot find that, when viewed as a whole, the applicant's trial was in this respect unfair. 82. The applicant has further alleged that the proceedings were unfair because the courts took into account a declaration about the anonymous witnesses made by the investigating judge who had previously detained the applicant on remand on the basis of statements by the same witnesses and also bacause the Court of Appeal refused to hear a witness proposed by the applicant, while at the same time agreeing to hear a witness demanded by the prosecution. 83. The Commission considers that the fact that the investigating judge had taken a decision regarding the applicant's detention on remand did not prevent him from expressing an opinion about the evidence in the case. Moreover, it was within the discretion of the courts to decide whether or not the hearing of the proposed witnesses could contribute to a good administration of justice in the case. Consequently, the Commission finds no appearance of unfairness in these regards. Conclusion 84. The Commission concludes, by fifteen votes to twelve, that there has been no violation of Article 6 paras. 1 and 3(d) (Art. 6-1, 6-3-d) of the Convention. Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD) (Or. English) DISSENTING OPINION OF Mr. H. DANELIUS JOINED BY MM. A. WEITZEL, A.S. GÖZÜBÜYÜK, J.-C. SOYER, C.L. ROZAKIS, Mrs. J. LIDDY, MM. L. LOUCAIDES, G.B. REFFI, M.A. NOWICKI, N. BRATZA, J. MUCHA and E. KONSTANTINOV. 1. In my opinion, there has been in the present case a violation of the applicant's rights under Article 6 paras. 1 and 3(d) of the Convention for the following reasons. 2. As pointed out by the Commission's majority, the applicant's conviction and sentence for drug offences was mainly based on the statements made by four witnesses, namely N. and R. as well as the two anonymous witnesses Y.15 and Y.16. 3. The question which arises is therefore whether these four witnesses gave their evidence under conditions which ensured the applicant's rights of defence and his right to a fair trial. 4. As regards N., I recall that he had, when heard by the police, made an incriminating statement about the applicant but that he withdrew this statement when he was heard before the Regional Court and the Court of Appeal. He then denied that the applicant had sold drugs to him and stated that he had lied to the police. 5. Although, in such circumstances, the mere fact that the courts took into account and evaluated the statement N. had made to the police did not violate the applicant's Convention rights, it is clear that the declarations N. made before the courts must have reduced the evidential value of his previous statement. In these circumstances, it was even more important that other evidence was taken in conditions which were not at variance with Article 6. 6. The witness R., who had also incriminated the applicant when heard by the police, did not appear before the Regional Court. He also failed to appear before the Court of Appeal but was eventually brought there by force on 28 August 1990. However, before he had been heard by the court, he disappeared from the court premises and could not be found again. 7. Since R. disappeared from the Court of Appeal after he had been brought there by force, the authorities must be considered to some extent responsible for the fact that he was not heard by that court. In any case, this event made it necessary for the court to be particularly cautious in drawing any conclusions from R.'s statement to the police, which had been made in the absence of the applicant and his lawyer who had also not on any other occasion been given an opportunity of putting questions to R. 8. As regards Y.15 and Y.16, the Commission recalls that they were anonymous witnesses whose identity was known to the investigating judge but not to the applicant or his lawyer. Consequently, it was not possible for the applicant to invoke any specific facts regarding the character of these witnesses or their general reliability. In the Kostovski case (Eur. Court H.R., Kostovski judgment of 20 November 1989, Series A 166, p. 20, para. 42), the Court stated in regard to a similar issue: "If the defence is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable. Testimony or other declarations inculpating an accused may well be designedly untruthful or simply erroneous and the defence will scarcely be able to bring this to light if it lacks the information permitting it to test the author's reliability or cast doubt on his credibility. The dangers inherent in such a situation are obvious." 9. It should further be observed that Y.15 and Y.16 were not heard before either the Regional Court or the Court of Appeal and that those courts therefore had no opportunity of forming a direct impression of those two witnesses. Moreover, there was no confrontation of Y.15 and Y.16 with the applicant. On the other hand, they were heard, on 14 February 1990, by the investigating judge in the presence of the applicant's lawyer who had the opportunity of putting questions to them, although he was unaware of their identity. 10. As the crucial question was whether the witnesses were really able to identify the applicant as a drug dealer, the fairness of the procedure might well be considered to have been affected by the fact that the identification was exclusively made on the basis of a photograph and that the witnesses R., Y.15 and Y.16 were on no occasion confronted with the applicant and asked whether they really recognised him in person. Moreover, N., who gave evidence at the trial, withdrew his incriminating statement. 11. On the basis of all these various elements, I cannot but find that the applicant's defence was restricted to such an extent as to violate his rights under Article 6 paras. 1 and 3(d) of the Convention. 12. Having regard to this finding, I do not find it necessary to determine whether the other aspects of the trial invoked by the applicant (see para. 66 in the Report) also contributed to making the proceedings unfair. APPENDIX I HISTORY OF THE PROCEEDINGS Date Item _________________________________________________________________ 27 June 1992 Introduction of application 24 August 1992 Registration of application Examination of admissibility 8 February 1993 Commission's decision to communicate the case to the respondent Government and to invite the parties to submit observations on admissibility and merits 23 April 1993 Government's observations 1 June 1993 Applicant's observations in reply 29 November 1993 Commission's decision to declare the application in part admissible and in part inadmissible Examination of the merits 8 December 1993 Decision on admissibility transmitted to parties. Invitation to parties to submit further observations on the merits 28 January 1994 Government's observations 8 February 1994 Applicant's observations 9 April 1994 Commission's consideration of state of proceedings 3 September 1994 Commission's consideration of state of proceedings 11 October 1994 Commission's deliberations on the merits, final vote, and adoption of the Report
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