FLANDERS v. THE NETHERLANDS



                      AS TO THE ADMISSIBILITY OF

                      Application No. 25982/94

                      by Sylvin Clifford FLANDERS

                      against the Netherlands

     The European Commission of Human Rights sitting in private on

15 January 1996, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 C.L. ROZAKIS

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 E. KONSTANTINOV

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

           Mr.   H.C. KRÜGER, Secretary to the Commission

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 29 July 1994 by

Sylvin Clifford FLANDERS against the Netherlands and registered on

19 December 1994 under file No. 25982/94;

     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 national born in 1953. At the time of

the introduction of the application he was detained in the remand

centre of St. Maarten (Netherlands Antilles). In the proceedings before

the Commission he is represented by Mr. Th.A. de Roos, a lawyer

practising in Amsterdam.

     The facts of the case, as submitted by the applicant, may be

summarised as follows.

     It appears that, on 4 July 1992, N.N. arrived on the isle of St.

Maarten carrying an amount of 56.000 US$ intended for the purchase of

cocaine. He had been informed by his friend K.J. that such a purchase

would be possible. The applicant's brother B. was their contact. In the

evening of the same day, the car driven by the applicant's brother B.

was stopped by two police officers in uniform. The applicant, N.N. and

K.J. were passengers in the car. With their arms drawn, the two police

officers seized from the car a bag belonging to N.N., allegedly

containing 51.000 US$. They also seized 3.000 US$ from N.N.'s backpack

and 2.000 US$ they found on N.N.

     In the subsequent criminal investigation of the robbery, the

applicant's brother B. and the police officers R.G. and H.G. stated

that the taking of the money had been previously planned between them.

According to H.G. the applicant was present when this plan was made.

No criminal charges were brought as regards the intended drug purchase.

     On 19 February 1993, in respect of unrelated facts, the Court of

First Instance of the Dutch Antilles (Gerecht van Eerste Aanleg van de

Nederlandse Antillen) of Curaçao convicted the applicant of offences

against the Netherlands Antilles Opium Act 1960 (Opiumlandsverordening

1960) and sentenced him to six years' imprisonment.

     On 24 February 1993 the Court of First Instance of the Dutch

Antilles of St. Maarten, following adversarial proceedings in which the

applicant was represented by a lawyer, convicted the applicant of

theft, preceded, accompanied and followed by violence, and threat with

violence, and sentenced him to one year's imprisonment.

     In the determination of its sentence, the Court of First Instance

of St. Maarten took into consideration that the applicant had only

played a minor part in the events of 4 July 1992 and that the

prosecution authorities had made the undertaking not to prosecute the

victims, who were effecting a drug deal contrary to the Netherlands

Antilles Opium Act.

     Both cases were joined in the subsequent appeal proceedings

before the Joint Court of Appeal of the Netherlands Antilles and Aruba

(Gemeenschappelijk Hof van Justitie van de Nederlandse Antillen en

Aruba).

     Following adversarial proceedings in which the applicant was

represented by a lawyer and in which, on 24 June 1993, a hearing was

held, the Joint Court of Appeal, by judgment of 25 June 1993, quashed

the judgments of 19 and 24 February 1993, convicted the applicant of

theft, preceded and accompanied by threat of violence, committed

together and in association with others, and of several offences

against the Netherlands Antilles Opium Act. It sentenced the applicant

to four years' imprisonment subject to deduction of the time spent in

pre-trial detention.

     The Joint Court of Appeal rejected the applicant's argument that,

as regards the charges of which he had been convicted in first instance

on 19 February 1993, either the prosecution or the evidence should be

declared inadmissible as the victim and his companion (N.N. and K.J.)

did not make any formal statement until after the prosecution

authorities had made the undertaking that they would not be prosecuted

for a possible offence against the Netherlands Antilles Opium Act. It

held on this point that:

     "According to the documents in the case-file, there were

     substantial indications that two officers belonging to the

     police force of St. Maarten were involved in a serious

     misfeasance.

     It has become plausible that that misfeasance could only be

     brought to light if the undertaking at issue was made to

     N.N. and K.J. By making this undertaking the prosecution

     authorities pursued a reasonable aim, namely the promotion

     of an irreproachable police force on St. Maarten.

     As there are no indications that the credibility of the

     statements by N.N. and J.K. has been - negatively -

     affected by this course of action, there is no ground to

     declare the prosecution inadmissible or to disregard the

     statements at issue for having been obtained unlawfully."

     The Joint Court of Appeal based the applicant's conviction on

these charges on the same means of evidence as the Court of First

Instance of St. Maarten, namely a statement by the applicant, the

statements of the victims K.J. and N.N., and the confessing statements

of the applicant's brother B. and of the two police officers R.K. and

H.G.

     The applicant's subsequent appeal in cassation was rejected by

the Supreme Court (Hoge Raad) on 15 February 1994. Insofar as the

applicant complained that the Joint Court of Appeal had unjustly

rejected the argument that the prosecution should be declared

inadmissible as the statements by N.N. and K.J. had been obtained as

a result of an investigation tool contrary to the principle of a fair

hearing within the meaning of Article 6 para. 1 of the Convention,

namely immunity from prosecution, the Supreme Court held that the Joint

Court of Appeal had rejected this argument on correct grounds.

COMPLAINT

     The applicant complains under Article 6 para. 1 of the Convention

that he did not receive a fair trial in the criminal proceedings

against him in that the trial courts used in evidence the statements

of N.N. and K.J. which the prosecution had obtained by granting them

immunity from prosecution. He submits that it does not appear that the

trial courts in their assessment of the evidence have applied special

safeguards as regards the questionable reliability of these statements.

THE LAW

     The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention of the use in evidence of statements of N.N. and K.J. who

had been granted immunity from prosecution.

     Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads:

     "In the determination of (...) any criminal charge against him,

     everyone is entitled to a fair (...) hearing (...) by a (...)

     tribunal (...)."

     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).

     The Commission recalls that the question whether a trial is in

conformity with the requirements of Article 6 para. 1 (Art. 6-1) of the

Convention must be considered on the basis of an examination of the

proceedings as a whole and not one particular aspect of such

proceedings only (cf. No. 12002/86, Dec. 8.3.88, D.R. 55 p. 218). It

must, therefore, 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).

     The Commission is of the opinion that the use in evidence of

statements obtained from an accomplice in exchange for immunity from

prosecution may put in question the fairness of the hearing granted to

an accused and thus raise an issue under Article 6 para. 1 (Art. 6-1)

of the Convention (cf. No. 7306/75, Dec. 6.10.76, D.R. 7 p. 115; and

No. 18666/91, Dec. 30.11.94, unpublished).

     However, this situation does not arise in the present case as the

statements at issue were not made by accomplices but by the victims of

the offence with which the applicant was charged, although it appears

that the victims themselves had been involved in the preparation of

different illegal activities. The Commission notes that no charges were

brought in respect of the intended drug transaction.

     The Commission considers that there are sufficient elements in

the proceedings at issue indicating that the applicant had a fair

hearing.

     In the first place, the fact that N.N. and K.J. had obtained

immunity from prosecution was fully disclosed as from the start of the

proceedings before the trial courts, which is illustrated by the fact

that the Court of First Instance of St. Maarten took this specific

feature into account in the determination of its sentence.

     Secondly, the trial courts did not base the applicant's

conviction solely on the statements by N.N. and K.J. They also relied

on the confessing statements of three accomplices, who had not been

granted immunity from prosecution, and whose statements corroborated

the version of events as related by N.N. and K.J.

     Thirdly, the Commission finds no indication in the present case

that in the adversarial proceedings against the applicant, who was

represented by a lawyer throughout these proceedings, he was restricted

in or prevented from exercising his defence rights guaranteed by

Article 6 (Art. 6) of the Convention.

     In these circumstances the Commission finds no appearance of a

violation of the applicant's right to a fair hearing within the meaning

of Article 6 para. 1 (Art. 6-1) of the Convention.

     It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission            President of the Commission

       (H.C. KRÜGER)                         (S. TRECHSEL)

 

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