AS TO THE ADMISSIBILITY OF
Application No. 11454/85
by Slobodan KOSTOVSKI
against the Netherlands
The European Commission of Human Rights sitting in private on
3 December 1986, the following members being present:
MM. C. A. NØRGAARD, President
E. BUSUTTIL
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. J. RAYMOND, Deputy 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 18 March 1985
by Slobodan KOSTOVSKI against the Netherlands and registered on 20
March 1985 under file No. 11454/85;
Having regard to
- the Commission's decision of 2 December 1985 to bring the
application to the notice of the respondent Government
and invite them to submit written observations on its
admissibility and merits;
- the observations submitted by the respondent Government on
25 February 1986 and the observations in reply submitted by
the applicant on 4 July 1986;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the application, as they have been submitted by
the parties, may be summarised as follows.
The applicant is a Yugoslav citizen, born in 1953. At present,
he is detained in prison at The Hague, the Netherlands. In the
proceedings before the Commission, he is represented by Mrs. T.
Spronken, a lawyer practising at Maastricht.
It appears that in August 1981, the applicant escaped from
prison at The Hague where he was serving a prison sentence having been
convicted by the Regional Court (Arrondissementsrechtbank) of Amsterdam
on 4 June 1980.
On 1 April 1982, the applicant was arrested on suspicion of
having participated in an armed bank robbery on 20 January 1982.
The applicant denied, and denies, the charges brought against
him, but on 24 September 1982, the Regional Court (Arrondissements-
rechtbank) of Utrecht convicted the applicant and sentenced him to six
years' imprisonment. The decisive evidence against the applicant
consisted of statements by two witnesses who wanted to remain anonymous
for fear of reprisals. One witness was only heard by the police, the
second witness also by both the investigating judge
(Rechter-Commissaris) and his deputy.
According to the investigating judge, he only heard one of the
two anonymous witnesses presented to him by the police because he could
not guarantee the other's anonymity. He did not identify the witness
heard by him, but considered his fears to be well-founded, e.g. because
of the fire-arms (including sub-machine-guns) found with the applicant
and his co-accused, and because of his knowledge of a police report on
the matter and of the dangerous nature of the applicant.
The court further took into account the fact that the applicant
had previously been convicted for a similar offence.
The court noted that it could not examine the reasons for the
witnesses' statements, and that it could not itself assess the
witnesses' reliability. However, the court considered that these
statements could be admitted as evidence since they were complementary
and mutually consistent. Furthermore, since one of the witnesses had
been considered to be very reliable by the police officer, reliable by
the investigating judge and not unreliable by his deputy, the court had
come to the conclusion that the applicant had in fact committed the
offence he was charged with.
The applicant, thereupon, appealed to the Court of Appeal
(Gerechtshof) of Amsterdam, which quashed the decision of the Regional
Court on 27 May 1983 since it found that certain additional criminal
offences were also proven.
The Court of Appeal also sentenced the applicant to six years'
imprisonment. The court considered that the statements of two
anonymous witnesses could be admitted as evidence, in view of the
submissions during the hearing by both the investigating judge and a
senior police officer that the witnesses concerned had cause to fear
reprisals, had made their statements out of their own initiative and
had made a reliable, respectively reasonably reliable, impression on
these officials. In this respect, the court also took into account the
mutual connection between the witnesses' statements.
The court further took into account the fact that the applicant
had already been sentenced to a long prison-term for similar offences.
Subsequently, the applicant appealed to the Supreme Court (Hoge
Raad).
The applicant, whilst invoking, inter alia, Article 6 of the
Convention, claimed that the investigating judges had not ascertained
the identity of the witnesses and that nearly all questions put forward
by the defence during the hearing with a view to clarifying the
reliability of the witnesses as well as their source of information had
been prevented by the court, in order to safeguard the anonymity of the
witnesses.
However, the Supreme Court rejected the applicant's appeal on
25 September 1984. The Court held, inter alia, that the Court of
Appeal had properly accounted for the fact that it had taken the
statements of the anonymous witnesses into account. It considered,
furthermore, that the invoked provision of the Convention which, in
general, ensured the equal treatment of defence and prosecution, did
not prevent the Court of Appeal from applying certain restrictions on
the rights contained therein, if this was considered necessary in the
interest of the trial.
In his conclusion, the Attorney-General (Procureur-Generaal)
considered that "...the entire situation, in particular in the light
of Article 6 para. 3 (d) of the Convention, must soon lead to further
reflection and the laying down of rights and obligations, as otherwise
the confidence in the administration of justice will be seriously
shaken."
COMPLAINTS
The applicant contends that during the criminal proceedings
against him, the principle of equality of arms was violated, since
witnesses against him were heard whilst neither he nor his lawyer were
given the opportunity either to be present during this hearing or to
have questions put to these witnesses.
The applicant further submits that the prosecution knew the
identity and other circumstances of the witnesses, and was able to
examine them and enquire after their source of information, but that
he could not obtain any information on this. The applicant claims that
he was not given the opportunity to examine the contents of the
witnesses' statements and that he was, therefore, unable to challenge
them.
The applicant invokes Article 6 paras. 1 and 3 (d) of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 March 1985 and registered
on 20 March 1985.
On 2 December 1985, the Commission decided to invite the
respondent Government, pursuant to Rule 42 para. 2 b) of its Rules of
Procedure, to submit written observations on admissibility and merits
before 14 March 1986. The Government's observations were submitted on
25 February 1986.
On 14 March 1986 the Commission decided to grant the applicant
legal aid.
The applicant was invited to submit observations in reply
before 12 May 1986. At the request of the applicant, the President
extended the time limit initially until 9 June 1986, and subsequently
to 7 July 1986. The applicant's observations were submitted on 4 July
1986.
SUBMISSIONS OF THE PARTIES
A. The Government
I. Article 6 paras. 1 and 3 (d)
a. The complaint that neither the applicant nor his counsel were
given the opportunity to have questions put to the witnesses has no
factual basis.
In a letter of 2 June 1982 the investigating judge forwarded
the applicant's lawyer a photocopy of the official report of the
examination of an anonymous witness and gave the lawyer the opportunity
to submit questions which the investigating judge could then put to the
witness. In a letter dated 14 June 1982 the applicant's lawyer sent
the investigating judge a list of 14 questions. The investigating
judge then re-examined the witness on 22 June 1982. On this occasion
some of the questions were put to the witness and an answer given.
With regard to the remaining questions the investigating judge stated
as follows:
"The questions submitted, ... which remained unanswered, were
in view of the necessity to safeguard the anonymity of the witness
either not put by me, the investigating judge, or not answered by the
witness for the same reason."
b. The applicant's allegation that the prosecution was able to
examine the witnesses and enquire after their source of information is
unfounded since there is nothing to show that this actually happened.
Instead, it must be assumed that with regard to the anonymous witnesses
the prosecution had access to the same information as the defence, viz.
the statements included in the documents in the file. In any case, the
prosecution was not present at the examination of the anonymous
witness; the same applies to the suspect's lawyers. In this respect
it may be said that the prosecution and the applicant were accorded
equal treatment in terms of their procedural position.
c. The complaint by the applicant that he was not given the
opportunity to apprise himself of the exact contents of the statements
of the anonymous witnesses should also be rejected since the contents
of these statements were used for no other purpose than their inclusion
in an official report. The defence was permitted access to the reports
in question.
II. Considerations with regard to views on anonymous witnesses
in the Netherlands
Cases of witnesses wishing to prevent a suspect learning their
identity or that of a third party for fear of reprisals or other risks
to themselves or such third parties or their immediate environment are
relatively new in the Netherlands. Such cases appear to be related to
recent developments with regard to crime, which is becoming more
violent, more aggressive and more "organised" (sometimes even at the
international level).
The present Code of Criminal Procedure is not equipped to deal
with this new situation. Cases do occur in which suspects influence
the course of justice by threatening witnesses. Despite the principle
of procedural equality between the prosecution and the suspect a
situation can therefore arise in which the balance is tilted in favour
of the suspect. This means in practice that considerable ingenuity is
sometimes required to ensure observance of the principle of equality
between the prosecution and the defence while remaining within the
bounds of the procedural rules. The judiciary attempts to restore the
balance as far as possible by allowing, under certain circumstances,
the use of statements by anonymous witnesses as evidence. In the
course of time the courts have imposed various conditions on the
admissibility of anonymous statements. The Supreme Court of the
Netherlands has indicated in a number of judgments that extreme caution
should be used in assessing the worth of such statements as evidence
(see, inter alia, the Supreme Court judgment of 4 May 1981, Dutch
Jurisprudence 1982, 268).
In its judgment of 17 March 1981 (Dutch Jurisprudence 1981,
382) the Supreme Court ruled that police officers called to give
evidence in respect of anonymous witnesses known to them may not be
exempted from giving evidence. It is therefore up to the judge to
apply, if necessary, Section 288 of the Code of Criminal Procedure by
ordering that questions which would reveal the identity of an anonymous
witness are not answered.
In a number of judgments handed down on 25 September 1984
(including the one in question), the Supreme Court defined even more
explicitly the obligation to indicate sufficient grounds for the use
of anonymous statements as evidence in cases where the reliability of
such statements is called in question by or on behalf of the suspect
at the trial. The judge must then give special reasons to justify his
subsequent admission of such statements as evidence.
In the case in question the Supreme Court ruled that the judge
had adduced sufficient reasons for his actions and, partly for this
reason, upheld the decision of the court of appeal, while in another
judgment handed down on the same day (Supreme Court, 25 September 1985,
427) it quashed a decision of the same appeal court on the ground that
the reasons given for admitting anonymous statements as evidence were
inadequate.
The problem of anonymous witnesses is recognised by the
authorities. On 20 September 1984 the Minister of Justice instituted
an external advisory committee with the following mandate. First, to
investigate, in the light of a preliminary study carried out by the
Netherlands Judicial Association (Nederlandse Vereniging voor
Rechtspraak), the position in criminal proceedings of a witness who
refuses to make a statement or is prepared to do so only if he receives
assurances that his anonymity will be guaranteed, because he fears to
reveal his own identity or that of another person to the suspect or
persons connected with the suspect. Second, to advise whether, in the
light of its findings, it would be desirable to supplement or amend the
Code of Criminal Procedure with regard to this question and, if so, to
make proposals thereon.
III. Outline of the relevant rules of evidence under Dutch law
a. What constitutes evidence is laid down in Section 339 of the
Code of Criminal Procedure:
i) the judge's own observation;
ii) statements made by the suspect;
iii) statements made by a witness;
iv) statements made by an expert;
v) written documents.
b. Section 342 para. 2 of the Code of Criminal Procedure contains
the "unus testis nullus testis" rule. Additional evidence is therefore
required to corroborate the statement of a single witness.
c. Since 1926 a body of case law has been built up admitting
hearsay evidence (Supreme Court, 20 December 1927, Dutch Jurisprudence
1927, 85). In this judgment the Supreme Court ruled, inter alia, that
neither a literal nor a systematic inter- pretation of the law should
lead to the exclusion of hearsay evidence; this would be contrary to
the spirit of the (new) Code of Criminal Procedure.
d. A deposition sworn in the presence of the investigating judge
is deemed under Section 295 of the Code of Criminal Procedure to be a
statement made by a witness at the trial. In general witnesses are not
examined under oath by the investigating judge. A sworn deposition is
taken only if the investigating judge considers it unlikely that a
witness will be able to appear at the trial (Section 216 para. 1, of
the Code of Criminal Procedure).
e. A deposition made by a witness to the police and set out in an
official report is deemed to be a written document within the meaning
of the Code (Section 344 para. 1 (ii), Code of Criminal Procedure).
These rules clearly indicate that the Dutch law of criminal
procedure is not governed by the principle of immediacy. This is
confirmed by case law.
In the present case therefore the evidence consisted of a
statement by a witness and a written document.
IV. Why the courts did not hear the witnesses in the absence of the
applicant himself but in the presence of his counsel
a. In the Dutch view a suspect's counsel is in principle not his
proxy in judicial proceedings. This means that in the absence of a
suspect his counsel may not act for him in court proceedings, except
in cases before the District Courts (kantongerechten) involving
non-indictable offences, and, at the discretion of the court, in cases
involving less serious indictable offences (not punishable by a prison
sentence) before the Regional Courts as referred to in the Code of
Criminal Procedure (Sections 270 and 398 (ii)). This is confirmed by
rulings by the Supreme Court, including: Supreme Court 23 November
1971, Dutch Jurisprudence 1973, 293 and Supreme Court 26 February 1980,
Dutch Jurisprudence 1980, 246.
In the latter decision the Supreme Court ruled that the
guarantees laid down in Article 6 para. 3 (c) of the European
Convention on Human Rights and Article 14 para. 3 (b) of the
International Covenant on Civil and Political Rights mean that counsel
should be allowed to appear and act in that capacity if, according to
the court, there are cogent reasons which prevent the suspect from
appearing in court and the court finds no grounds for suspending
proceedings.
In the case in question there were no cogent reasons why the
suspect could not appear in court.
b. The Code of Criminal Procedure cites only three cases in which
a suspect may be removed from the court and where his counsel may
remain. These are:
1. Section 304: dealing with questions relating to the mental
state of the suspect;
2. Section 303: if the suspect refuses to remain silent or
disturbs the conduct of the hearing;
3. Section 292, where a witness is examined in the absence of
para. 1: the suspect.
The last-mentioned section offers no solution to the problem
of the anonymous witness, since the suspect still has, under Section
285 para. 1, to be given the opportunity of putting questions to the
witness at a later stage. In the view of authoritative writers on the
subject (Duisterwinkel/Melai) "the suspect's own right to examine the
witness (under Section 285 para. 1) may not be curtailed by the
application of Section 292. Nor is the situation altered by the fact
that the suspect's counsel remain in court and may question the
witness." This view finds general acceptance.
Failure to conform to the above results in the testimony being
null and void (Section 292 para. 2).
c. A solution to this problem is sought in hearing witnesses
anonymously at the stage of the preliminary judicial investigation. In
this event Section 216 of the Code of Criminal Procedure is applied.
This investigating judge hears sworn testimony from a witness whom he
assumes will be unable to appear in court. It is accepted that this
is the case when a witness fears reprisals. Under Section 295 of the
Code the deposition of such a witness is deemed to be a statement made
at the trial.
Section 187 of the Code of Criminal Procedure is a rule of
procedure which governs the conduct of the preliminary judicial
investigation. This section provides that if the investigating judge
deems that there is good reason to assume that the witness will be
unable to appear in court, he shall invite the public prosecutor and
the suspect and his counsel to attend the examination of the witness,
unless the examination has to be carried out without delay in the
interest of the investigation.
This rule is not adhered to in practice in the case of the
anonymous witness who fears reprisals. By ruling in its judgment of
4 May 1981 (Dutch Jurisprudence 1982, 268) that failure to apply this
rule did not render the testimony inadmissible, the Supreme Court in
fact sanctioned this practice. However, the suspect's counsel (and the
prosecution) must be given an opportunity to comment on the official
report of the hearing and if they so desire submit additional questions
in writing.
It follows implicitly from the principle of equality of arms
for prosecution and defence that if the suspect's counsel is not
invited to attend the hearing the public prosecutor should not attend
either. This practice was followed in the present case.
d. In addition to the statutory difficulties, outlined above,
associated with temporarily removing the suspect from the court and
having his counsel represent him during this period, the following is
also of relevance.
The Dutch bar, in particular those lawyers who concentrate
primarily on criminal cases, is of the opinion that the relationship
of trust between the defence lawyer and his client demands that the
former should not be placed in a position during judicial proceedings
in which he acquires knowledge which he must keep secret from his
client. Since this position seems eminently reasonable, no attempt has
been made in the Netherlands to solve the problem of anonymous
witnesses by allowing the suspect's counsel to learn the identity (or
to have a description of his appearance) of the witness if the suspect
may not also have this knowledge.
The Netherlands Government is of the opinion that the
application is manifestly ill-founded.
B. The applicant
Article 6
The applicant recalls that he complained that the defence was
not, or at least not sufficiently, able to challenge the statements
against him by the anonymous witnesses. Although the investigating
judge gave the applicant the possibility to put questions to the
anonymous witnesses, only one of these questions was in fact put to
this witness by the investigating judge. Similarly, during the
hearings of the police officers and the investigating judges by both
the regional court and the court of appeal, replies to virtually all
questions were prevented. The applicant therefore submits that no real
possibility existed in the present case to put questions to the
witnesses, this apart from the question whether the submission of
written questions to the investigating judge meets the requirements of
a fair trial under Article 6 of the Convention.
In this respect, the applicant notes that written questions do
not contain the element of surprise which may be highly important in
bringing out the truth. Furthermore, the defence cannot assess the
veracity of the witnesses' statements, for instance by visiting the
place where something was supposed to have been witnessed. In
addition, the absence of direct confrontation leads to a situation in
which the witness is more easily tempted not to tell the entire truth.
The Government denies that the public prosecutor was able to
hear the anonymous witnesses and to assess the veracity of their
declarations. However, the applicant submits that the public
prosecutor possesses all the information the police has concerning
anonymous witnesses, as the public prosecutor is the hierarchical
superior of the police, and is in charge of the investigations. In
view of this situation it cannot be maintained that the public
prosecutor has, or can obtain, the same information as the defence. The
applicant refers to the report by the External Advisory Committee
referred to by the Government, which published its report on 11 June
1986.
In the present case the public prosecutor did not attend the
hearing of the anonymous witness by the investigating judge, but had
no direct interest in doing so since he already possessed all
information. The applicant submits that if the prosecution wishes to
use a statement against the accused made out of court, it can be said
that the prosecution has already examined this witness. On the basis
of Article 6 para. 3 of the Convention this should result in the
defence being able to hear this witness. The hierarchical relationship
between police and public prosecutor guarantees that the public
prosecutor, at an early stage, can order the hearing of certain
witnesses against the accused and have their statements at his
disposal.
In reply to the submission of the Government that the defence
was able to examine the procès-verbal containing the statement of the
anonymous witnesses, the applicant submits that this procès-verbal does
not contain an exact reproduction of the witnesses' statements, since
the latter's anonymity must be guaranteed, whereas it is of supreme
importance for the defence to have access to the exact statement.
The applicant contests the Government's view that the Dutch
Code of Criminal Procedure is not based on the principle of immediacy,
although he admits that certain exceptions to this principle are in
fact made.
Development of case-law and opinion concerning anonymous
witnesses in the Netherlands
The applicant refers to the decision of the Supreme Court of
4 May 1981 (Dutch Jurisprudence 1982, 268) in which it was decided that
statements by anonymous persons may, with proper care, be used as
evidence. It further appears from later case law, that the defence
must be given the possibility to submit questions, and that the judge
must account for the use of an anonymous statement if the contents
thereof are challenged. Moreover, on 12 November 1985 (Dutch
Jurisprudence 1986, 409), the Supreme Court explicitly decided that a
conviction entirely on the basis of statements by anonymous witnesses
was compatible with Article 6 of the Convention.
The applicant refers to the opinion of certain writers on the
above cited case law.
The presence of counsel during the examination of an anonymous
witness
The applicant contests the Government's view that the hearing
of an anonymous witness in the absence of the accused but in the
presence of the latter's lawyer would be incompatible with the Dutch
legal system. Although the External Advisory Committee in its report
of 11 June 1986 advised against such a solution, the applicant claims
that there is a difference of opinion within the Dutch bar association
on this matter.
The applicant submits that in case a decision is taken to hear
anonymous witnesses, the interests of the defence are better served if
counsel can be present than when such an examination is to take place
in the absence of both the accused and counsel.
The External Advisory Commission has proposed to declare the
statements of anonymous witnesses in principle inadmissible.
However, exceptionally, a witness may be heard in the absence
of the applicant and his lawyer by the investigating judge, against
which decision an appeal may be lodged with the regional court. In his
dissenting opinion a member of the committee drew attention to the fact
that procedural guarantees assisted a judge in being cautious, and that
the elimination of direct confrontation between the accused and the
witness against him also eliminated one of the most important
incentives to judicial cautiousness.
It appears from the Commission's case law, that the use of
anonymous witnesses may be permissible under certain circumstances, but
that this may not be the sole evidence. Moreover, the Commission has
accepted that there may be particular circumstances to hear a witness
in the absence of the accused. However, in that case the witness was
heard in the presence of the accused's counsel, who was given the
possibility to put questions.
In the present case, additional evidence consisted of the
hearsay evidence of the investigating judge and the police. However,
these only repeated what others had told them.
The applicant submits that it is incompatible with Article 6
of the Convention that an accused is convicted exclusively on the basis
of statements by anonymous witnesses, or the hearsay evidence of the
police or investigating judge with regard to these anonymous witnesses,
as happened in the present case.
THE LAW
The applicant has complained that he was not given the
possibility to put questions to witnesses who were heard in the
criminal proceedings against him, and he has invoked Article 6 paras.
1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention in this respect.
Article 6 para. 1 (Art. 6-1) provides, inter alia:
"In the determination of ... any criminal charge against
him ... everyone is entitled to a fair and public hearing
..."
Article 6 para. 3 (d) (Art. 6-3-d) provides:
"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 attendence and examination of witnesses on his
behalf under the same conditions as witnesses against him."
The Government have submitted that the applicant's lawyer was
given the opportunity to submit certain questions to the witness heard
by the investigating judge, that the prosecution and the defence were
in an equal position, and that the defence had access to the reports
in question.
The Commission, however, considers that the applicant's
complaints raise complicated issues of fact and law which can only be
resolved by an examination of the merits. The application cannot,
therefore, be declared manifestly ill-founded on the grounds invoked
by the Government.
No other grounds for inadmissibility having been established,
the application must be declared admissible.
For these reasons, the Commission, without in any way
prejudging the merits,
DECLARES THE APPLICATION ADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)