Communicated on 28 June 2016
THIRD SECTION
Application no. 2205/16
Vahap KESKİN
against the Netherlands
lodged on 29 December 2015
STATEMENT OF FACTS
1. The applicant, Mr Vahap Keskin, has Dutch and Turkish nationality. He was born in 1972 and lives in Hengelo. He is represented before the Court by Mr Th.O.M. Dieben and Mr R.J. Baumgardt, lawyers practising in Amsterdam and Spijkenisse, respectively.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Proceedings before the Overijssel Regional Court
3. On 30 July 2013 the Overijssel Regional Court (rechtbank) convicted the applicant in absentia of having actually directed (feitelijk leiding hebben gegeven) the defrauding, by F. company, of two other companies – C. and J. The Regional Court used in evidence against the applicant, inter alia, statements made by seven witnesses to police. Neither the applicant nor his counsel had been present when these statements were made. The witnesses were not summoned to give evidence before the Regional Court. The applicant was sentenced to nine months’ imprisonment of which three months were suspended.
2. Proceedings before the Arnhem-Leeuwarden Court of Appeal
4. The applicant appealed the Regional Court’s judgment. Although he acknowledged that F. company had defrauded the two companies, he contested that he had actually directed this fraud. In his notice of appeal of 7 August 2013 the applicant requested the Arnhem-Leeuwarden Court of Appeal (gerechtshof), inter alia, to summon the seven witnesses in order for the defence to be able to examine them directly and to question them about the contacts they had had with F. company and/or the applicant. The Advocate General, for the prosecution, considered that in view of the reasoning submitted for the hearing of each of the seven witnesses, the request should be granted. The Court of Appeal nevertheless rejected the applicant’s request for the time being on 20 February 2014 and informed him that he could repeat the request at the hearing.
5. At the hearing on 16 September 2014 counsel for the applicant repeated his request for the examination of the seven witnesses. The public prosecutor stated that she was of the view that that request should be granted. The Court of Appeal rejected the request, considering as follows:
“As regards counsel’s request for the examination of the witnesses [A, B, C, D, E, F and G] ... the criterion of the interests of the defence (verdedigingsbelang) applies. The court finds that the interests of the defence have been insufficiently substantiated in the requests. Having regard to counsel’s explanatory statement in the written appeal, it has not been indicated on what points these witnesses have made incorrect statements. (...)”
At the end of the hearing counsel for the applicant stated that he persisted in his request for the seven witnesses to be heard.
6. By judgment of 30 September 2014 the Court of Appeal convicted the applicant of having actually directed the defrauding of the companies C. and J. committed by F. company and sentenced him to six months’ imprisonment. In its judgment the Court of Appeal considered as follows in relation to the request to examine the witnesses A-G:
“The court is of the opinion that the interests of the defence have been insufficiently substantiated, thus that the court rejects the request. Moreover, the accused invoked his right to silence during the police interrogations. At the hearing before the court the accused did not want to reply to concrete questions of the court about his responsibilities at [F. company]. No indication has been given as to on what points and why the statements made by the requested witnesses to the police would be incorrect. An alternative scenario has neither been advanced nor been made plausible.”
7. The Court of Appeal found established that F. company had defrauded the companies C. and J. and that the applicant had actually directed that fraud on the basis of, inter alia, annual financial statements of F. company, a variety of documents (emails, orders of F. company, etc.), statements of the witnesses A-G made to police, and the applicant’s statement at the hearing before the Court of Appeal. These statements are summarised below.
(a) Witness A
8. Witness A worked for C. company in Italy. She stated, inter alia, that the contacts between C. company and F. company had taken place by telephone and email. The person at F. company with whom she always used to speak was called X.Y. F. company used to order fruit and vegetables from C. company, but after a certain time F. company had stopped paying for goods that had been delivered.
(b) Witness B
9. Witness B worked for J. company in Spain. The point of contact at F. company for J. company had been X.Y. J. company had delivered goods to F. company but the latter had failed to pay for them.
(c) Witness C
10. Witness C was the director of P. company until February 2009, when it was sold to F. company. Shown the annual financial statements over 2006, 2007 and 2007 which had been deposited with the Chamber of Commerce on behalf of F. company, he observed that the stated equity was much higher than what it had been in reality.
(d) Witness D
11. Witness D was co-director of a company that used to rent office space to F. company. Asked who, according to him, was in charge at F. company, he replied that this was the person in a photograph shown to him, which was a photograph of the applicant. The witness stated that this was the person who would contact him and come to see him whenever there were problems with the payment of the rent.
(e) Witness E
12. According to this witness, who was an estate agent, the applicant had acted as the spokesman for F. company during the negotiations relating to the rental agreement between that company and the company belonging to the witnesses D and G.
(f) Witness F
13. Witness F stated that, at the beginning of January 2010, he had been visited by X.Y. who had handed him a business card stating that he represented F. company. When he was shown a photograph of X.Y., witness F declared that he did not know the person in the picture. After having been shown a photograph of the applicant, the witness declared that he knew the person in the picture as X.Y.
(g) Witness G
14. Witness G stated that he had had contact with one person working at F. company. He recognised this man from a photograph of the applicant shown to him. Witness G knew this man by the first name X. This witness further declared that he would regularly visit F. company’s office and that he would often find three persons there, one of whom had been the person featured in the abovementioned photograph.
(h) Statement of the applicant at the hearing on 16 September 2014
15. The applicant declared that he had worked at F. company as an intern. He confirmed that he was the person featured in a photograph shown to him, which photograph was the same as the one that had been shown to witness D. Shown a photograph of X.Y., he agreed that there was no real resemblance between X.Y. and himself.
3. Proceedings before the Supreme Court
16. The applicant lodged an appeal on points of law to the Supreme Court (Hoge Raad) in which he complained, inter alia, of the Court of Appeal’s refusal to summon the witnesses A-G. The Procurator General (Procureur-Generaal) at the Supreme Court refrained from taking a stance, in an advisory opinion, about a possible application of section 80a of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie) to the appeal on points of law. This provision allows the Supreme Court, after having taken cognisance of the advisory opinion of the Procurator General, to declare an appeal on points of law inadmissible when it is not justified to consider the complaints raised because the appellant party obviously has insufficient interest in the appeal on points of law or because the complaints obviously cannot succeed.
17. The Supreme Court gave judgment on 8 September 2015. Having regard to section 80a of the Judiciary (Organisation) Act, it declared the appeal on points of law inadmissible in its entirety.
COMPLAINTS
18. The applicant complains under Article 6 § 1 in conjunction with Article 6 § 3 (d) of the Convention that his trial was unfair as neither he nor his counsel were granted an opportunity at any stage of the criminal proceedings against him to examine the seven prosecution witnesses, on whose statements to police the Court of Appeal relied to a decisive extent when it convicted him.
19. The applicant further complains that the Supreme Court declared his appeal on points of law inadmissible with a summary reasoning. In his view, this is contrary to Article 6 § 1, given that his appeal on points of law concerned the alleged violation of a human right, that the Procurator General had not issued an advisory opinion from which he could have deduced why his appeal might not succeed, and that he had been unable to comment on the Procurator General’s de facto opinion that the appeal ought to be declared inadmissible pursuant to section 80a of the Judiciary (Organisation) Act.
QUESTION TO THE PARTIES
Was the applicant’s right to a fair trial, as guaranteed by Article 6 §§ 1 and 3(d) of the Convention, infringed by the fact that neither he nor counsel were given the opportunity at any stage of the proceedings to examine seven prosecution witnesses whose statements to police were used in evidence against him?
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