AS TO THE ADMISSIBILITY OF
Application No. 16512/90
by J.J.
against the Netherlands
The European Commission of Human Rights sitting in private on 7
May 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
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 20 April 1990 by
J.J. against the Netherlands and registered on 26 April 1990 under file
No. 16512/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch citizen born in 1959. At the time of
the introduction of the application he was detained at the Remand
Centre (Huis van Bewaring) in Breda, the Netherlands. Before the
Commission he is represented by Mr. R.J.H. Klinkhamer, a lawyer
practising at Etten-Leur.
The facts, as submitted by the applicant, may be summarised as
follows:
On 21 January 1988 the applicant was summoned to appear before
the Dordrecht Regional Court (Arrondissementsrechtbank) on 4 February
1988. Together with another person, P., he was charged with the
following offences: a drug related robbery on 28 June 1987 in
Hilversum, extortion on 15 December 1986 in St Willebrord, a robbery
on 12 June 1986 in Tilburg and a robbery on 30 May 1985 in Breda. P.
had made several statements to the police on 29 June and 10 December
1987, to the Investigating Judge (Rechter-Commissaris) on 9 December
1987, 22 December 1987, and in the presence of his lawyer on 18 January
1988 and 12 February 1988.
On 17 March 1988 the Dordrecht Regional Court, whilst
requalifying the first offence, convicted the applicant on all charges
and sentenced him to eight years' imprisonment. The Court based its
finding of guilt on several evidential factors:
The conviction for the drug related robbery in Hilversum was
based on eight police reports containing various statements:
- that of the man who was to deliver the hashish; he said, inter
alia, that he recognised the applicant from two pictures;
- that of the man's brother who was also present; the two brothers
both identified the applicant when confronted with him by means
of a one way mirror;
- that of an eye witness;
- that of P.;
- and that of the applicant himself.
The conviction for extortion in St Willebrord was based on the
statements of P. and P.'s sister. The conviction for the robbery in
Tilburg was based on three police reports containing the investigating
officers' own findings concerning, inter alia, identity tests carried
out on the applicant and the statements of an eye witness and of P..
Finally, the conviction for the robbery in Breda was based on eight
police reports containing the statements of three eye witnesses, the
investigating officers' own findings with regard, inter alia, to one
of the applicant's sweaters which permitted his identification by means
of certain tests, the statements of the expert who carried out those
tests and the report on P.'s statements to the Investigating Judge.
The applicant denied all charges and appealed to the Court of
Appeal (Gerechtshof) of The Hague. At the hearing on 14 November 1988,
the applicant requested the Court to hear P.. However, P. declared
that he remembered very little about his previous statements, adding
that he did not wish to make any further statements. He invoked his
right as co-accused to remain silent. The Court of Appeal dec
hear P. on the ground that, in respect of all the charges except the
fourth, P.'s interests as a witness and co-accused outweighed those of
the applicant.
On 28 November 1988 the Court of Appeal convicted the applicant
on all charges, with the exception of the robbery in Hilversum, of
which offence he was acquitted. The applicant was sentenced to six
years' imprisonment and a fine of 100.000 Dutch guilders, to be
commuted to five months' imprisonment in case of non-payment. The
Court of Appeal based its finding of guilt on the same evidence as had
been used by the Regional Court and on a police report containing a
statement by P.. As to the use of P.'s statements as evidence, the
Court of Appeal considered, in the light of the Unterpertinger
judgment, that the applicant had had several opportunities during the
preliminary investigations, before the Regional Court and at the appeal
stage, to question P.. Therefore the requirements of Article 6 para.
3 (d) of the Convention had been met. In addition, the fact that
during the preliminary investigations P. was prepared to make more
extensive statements in the absence of the applicant and his
representative, did not mean that his statements could not be used as
evidence.
On 15 September 1989 the applicant filed a plea of nullity with
the Supreme Court (Hoge Raad). He submitted the following five grounds
of cassation:
- that the Court of Appeal had granted P. a general right to
remain silent, whereas Dutch law (Article 219 of the Code
of Criminal Procedure - Wetboek van Strafvordering) only
recognises the right of a witness to remain silent with
regard to a specific question;
- that the statement of P.'s sister used as evidence by the
Court of Appeal could not be considered a statement about
facts or circumstances observed or experienced by her;
- that the Court of Appeal had unjustly relied on the
statements of two investigating police officers who had
arrested the applicant;
- that the Court of Appeal had given too restrictive an
interpretation of the Unterpertinger judgment since the
conditions under which the defence had heard P. were
fundamentally different from those under which the
Investigating Judge had heard him and, in particular, that
a witness cannot derive from Article 6 para. 3 (d) of the
Convention a right or privilege to make more extensive
statements to the Investigating Judge than he makes in the
presence of the suspect or his representative;
- that the Court of Appeal had failed to decide on the
applicant's plea about certain wrongfully obtained
evidence.
On 16 January 1990 the Supreme Court rejected the applicant's
plea of nullity, holding, inter alia, that a reasonable interpretation
of Article 219 of the Code of Criminal Procedure implies that a
witness, who is a co-accused, can be granted a general right to remain
silent. It also found that Article 6 para. 3 (d) had not been
infringed since, as the Court of Appeal had already held, the
applicant's representative had had several opportunities to question
P., even though the latter was reluctant to provide full answers, and
he had challenged P.'s statements before the Regional Court and the
Court of Appeal. The Supreme Court finally pointed out that the
applicant's conviction was based on various evidential factors and not
just P.'s statements.
COMPLAINTS
The applicant complains that, by granting the witness P. a
general right to remain silent, the Court of Appeal wrongly applied
Article 219 of the Code of Criminal Procedure and consequently
infringed his right to a fair hearing and the principle of equality of
arms. He submits that in these circumstances he had not had an
adequate opportunity to question P.. He invokes Article 6 paras. 1 and
3 (d) of the Convention.
THE LAW
The applicant complains that, by granting the witness P. a
general right to remain silent, the Court of Appeal wrongly applied
Article 219 of the Code of Criminal Procedure and consequently
infringed his right to a fair hearing and the principle of equality of
arms. He submits that in these circumstances he did not have an
adequate opportunity to question P.. He invokes Article 6 paras. 1 and
3 (d) (Art. 6-1, 6-3-d) of the Convention which reads, insofar as
relevant, as follows:
"1. In the determination ... of any criminal charge against him,
everyone is entitled to a fair and public hearing ... by an
independent and impartial 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; ...".
The Commission notes that the applicant only complains that he
could not have P. examined in court as the Court of Appeal granted P.
the right to remain silent under Article 219 of the Code of Criminal
Procedure. The Commission will therefore confine itself to this point.
With regard to the decisions of the Dutch courts in the present
case to allow the witness P. to remain silent pursuant to Article 219
of the Code of Criminal Procedure, the Commission recalls that, in
accordance with Article 19 (Art. 19) of the Convention, its only task
is to ensure the observance of the obligations undertaken by the
Parties in the Convention. In particular, it is not competetent to
deal with an application alleging that errors of law or fact have been
committed by domestic courts, except where it considers that such
errors might have involved a possible violation of any of the rights
and freedoms set out in the Convention. The Commission refers, on this
point, to its established case-law (see e.g. No. 458/59, Dec. 29.3.60,
Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp.
71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45). Accordingly,
it cannot examine the applicant's complaint that the Court of Appeal
had wrongly applied Dutch law in this instance.
However, it may examine the applicant's complaint that he was
unable to question P. before the Court of Appeal, because this is a
matter falling within the scope of the guarantees laid down in para.
3 of Article 6 (Art. 6-3) of the Convention, which are specific aspects
of the right to a fair hearing ensured by para. 1 of this provision.
The Commission will examine the complaint under the two provisions
taken together (cf. Eur. Court H.R., Isgrò judgment of 19 February
1991, Series A no. 194-A, p. 12, para. 31).
According to the case-law of the European Court of Human Rights,
all evidence must in principle be adduced in the presence of the
accused at a public hearing with a view to adversarial argument, but
this does not mean that a statement from a witness must always be made
in court and in public if it is to be admitted in evidence (Eur. Court
H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10, para.
27). The defendant must however be given an adequate and proper
opportunity to challenge and question the witnesses against him
(ibid.).
The Commission further recalls that it is normally for the
national courts to decide whether it is necessary or advisable to hear
a witness (cf. No. 10563/83, Dec. 5.7.85, D.R. 44 p. 113, and Eur.
Court H.R., Bricmont judgment of 7 July 1989, Series A no. 158, p. 31,
para. 89). It also recalls that, as a rule, it is for the national
courts to assess the evidence before them (cf. Eur. Court H.R., Asch
judgment of 26 April 1991, loc. cit., p. 10, para. 26). The
Commission's task is to ascertain whether the proceedings considered
as a whole, including the way in which the evidence was taken, were
fair.
In the present case both the Regional Court and the Court of
Appeal based their decision on an extensive number of police reports
containing, inter alia, the statements of the applicant himself, and
the statements of several investigating officers, eye witnesses, P.'s
sister and P.. It would clearly have been preferable if P. had been
willing to make a statement during the hearing before the Court of
Appeal. However, as the Court of Appeal and the Supreme Court
observed, the applicant was given the opportunity, of which he availed
himself, to question P. during the preliminary investigations, before
the Regional Court and on appeal. The Commission therefore finds no
evidence in the case to suggest that the applicant's hearing in
relation to his co-accused was unfair.
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 by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy