Application No. 11454/85
Slobodan KOSTOVSKI
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 12 May 1988)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 12) ...................................... 1
A. The applicant
(paras. 2 - 4) ............................... 1
B. The proceedings
(paras. 5 - 8) ............................... 1
C. The present Report
(paras. 9 - 12) .............................. 2
II. ESTABLISHMENT OF THE FACTS
(paras. 13 - 33) ..................................... 3
A. Particular circumstances of the case
(paras. 13 - 25) ............................. 3
B. Relevant domestic law and practice
(paras. 25 - 33) ............................. 7
III. SUBMISSIONS OF THE PARTIES
(paras. 34 - 40) ..................................... 10
A. The applicant
(paras. 34 - 37) .............................. 10
B. The Government
(paras. 38 - 40) .............................. 11
IV. OPINION OF THE COMMISSION
(paras. 41 - 52) ...................................... 12
A. Points at issue
(paras. 41 - 51) .............................. 12
B. Conclusion
(para. 52) .................................... 14
Concurring opinion ............................ 15
APPENDIX I : HISTORY OF THE PROCEEDINGS ................. 16
APPENDIX II : DECISION ON THE ADMISSIBILITY .............. 17
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 applicant
2. The applicant, Mr. Slobodan Kostovski, is a Yugoslav citizen,
born in 1953. He is detained in prison at The Hague in the
Netherlands. In the proceedings before the Commission he is
represented by Ms. T. Spronken, a lawyer practising in Maastricht.
3. The Government are represented by their Agent,
Ms. D.S. van Heukelom, Legal Advisor at the Ministry of Foreign
Affairs, The Hague.
4. The case relates to the applicant's conviction of armed
bank-robbery which was based exclusively on reports of statements
given by two anonymous witnesses who were only heard in the pretrial
investigating proceedings. The applicant complains that the criminal
proceedings against him violated Article 6 paras. 1 and 3 (d) of the
Convention because the witnesses were not heard in his and his defence
counsel's presence at the trial and because the public prosecution
knew, according to his submission, the identity of the witnesses and
other circumstances relating to them, whereas the defence had no
information at all and was therefore unable to challenge the
statements made by the anonymous witnesses.
B. The proceedings
5. 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 under the Addendum to the Commission's Rules of Procedure.
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.
6. On 3 December 1986 the Commission declared the application
admissible, and decided in accordance with Rule 45 para. 3 of its
Rules of Procedure to invite the parties to appear before it at a
hearing on the merits of the case. The parties were also invited to
submit any additional observations on the merits of the application
which they wished to make.
The Government submitted further observations on 29 January 1987
and the applicant on 13 February 1987. These observations were
submitted to the other party for information.
7. At the hearing, which was held on 9 October 1987, the
applicant was represented by Ms. T. Spronken, who was assisted by
Mr. G.P.M.F. Mols, Mr. P.J. Baauw, lecturers on criminal law, and
Ms. van den Boom, university assistant. The Government were
represented by their Agent, Ms. D.S. van Heukelom, and
Mr. J.E.E. Schutte from the Ministry of Justice as advisor.
8. After declaring the case admissible, the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement
of the case. Active consultations with the parties took place between
December 1986 and February 1987. 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
9. 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. S. TRECHSEL, Acting President
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
The text of this Report was adopted on 12 May 1988
and is now transmitted to the Committee of Ministers of the Council of
Europe, in accordance with Article 31 para. 2 of the Convention.
10. 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.
11. 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.
12. 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. Particular circumstances of the case
13. The applicant is a person with a considerable criminal
record. He has been convicted of various crimes in the Netherlands,
inter alia, of armed robbery at a jeweller's shop committed in
Amsterdam on 24 October 1979. For this offence he was sentenced to
six years' imprisonment.
14. In November 1980 the Amsterdam Regional Court (Arrondisse-
mentsrechtbank) declared admissible a request from Sweden for the
applicant's extradition to stand trial for serious criminal offences
committed in Stockholm in September 1979, namely two armed robberies
in connection with attempted manslaughter and assistance to escape
from a court building, again in connection with attempted
manslaughter.
15. In August 1981 the applicant escaped from Scheveningen prison
together with one Stanley Hillis and others.
16. On 2 April 1982 he was arrested. At his arrest he was found
in possession of a loaded firearm.
17. On 24 September 1982 the Utrecht Regional Court convicted the
applicant of armed robbery and sentenced him to six years'
imprisonment.
18. The Court found the applicant guilty of having participated on
20 January 1982 in an armed hold-up, committed by several masked
persons at a bank in Baarn. This finding was based on statements made
by two anonymous witnesses before the police and, by one of them, also
before the investigating judge and his deputy.
19. The witnesses were not heard at the trial as they wished to
remain unknown for fear of reprisals. The Public Prosecutor knew the
identity of both anonymous witnesses from his consultations with the
police. The defence therefore only had the opportunity to submit
questions to one of these witnesses in writing via the investigating
judge. Of fourteen questions, only two were answered.
20. The Utrecht Regional Court admitted as evidence the procès
verbaux (PVs) drawn up by the police and by the investigating judge on
the hearings of the anonymous witnesses. These PVs and the reports of
the police and investigating judge relating thereto were summarised in
the judgment as follows:
"h. Account given by the reporting officer - in substance:
"'On 25 January 1982 an anonymous telephone call was
"received in the Police Information Room of Amsterdam,
"when a man's voice was heard saying: 'A few days ago a
"hold-up took place at a bank in Baarn. Those
"responsible for the hold-up are Stanley Hillis, Paul
"Molhoek and a Yugoslav. Stanley Hillis and the Yugoslav
"escaped from prison in The Hague in August last year.'
"i. An official report, included in the case-file,
"and drawn up on 18 March 1982, No 425-1/1982, by Jietze
"Radersma, Municipal Police Adjutant in The Hague,
"comprising inter alia - reproduced in substance -
"The account given by the reporting officer aforesaid:
"On 26 January appeared before me a man, who for fear
"of reprisals desired to remain anonymous but whose
"identity is known to me. He stated as follows:
"'A few months ago four men escaped from the Detention
"Centre in The Hague, among them a Yugoslav and an
"Amsterdamer. The Yugoslav, the Amsterdamer and Paul
"Molhoek carried out a hold-up a few days ago on a bank
"in Baarn, in the course of which the staff of the bank
"were locked up.
"'I (the reporting officer) wish to add that, after being
"shown various photographs included in the police file,
"he picked out photos of the following persons: Slobodan
"Kostovski, born in Novi Pazar (Yugoslavia) on
"4 December 1953, as being the Yugoslav to whom he
"had referred; Stanley Marshall Hillis, born on
"10 September 1946, as being the Amsterdamer in question.'
"j. An official report included in the case-file, drawn
"up on 22 March 1982, No. 7.425/1982, by the Reporting
"Officer Weijman aforesaid and by Tom de Recht,
"Detective-Sergeant in the Municipal Police Force of
"The Hague, comprising inter alia:
"The account given by the officers first mentioned -
"reproduced in substance:
"'On 23 February 1982 appeared before us a person, who
"for security reasons wishes to remain anonymous but
"whose identity is known to us. He stated his knowledge
"that Stanley Hillis, Slobodan Kostovski and Paul
"Molhoek, who were known to him, were guilty of the
"armed raid on a branch of the Nederlandse Middenstands
"Bank in Baarn on or about 19 January 1982.'
"2a. A report on the hearing of an anonymous witness
"dated 8 April 1982, drawn up and signed by Mr. PWR
"Nuboer, Examining Magistrate for Criminal Matters in
"the district of Utrecht, comprising inter alia -
"reproduced in substance:
"The sworn statement made before the aforesaid examining
"magistrate by a person who for fear of reprisals wishes
"to remain anonymous:
"'On 23 February 1982 I made a statement to the police
"in The Hague which was included in a report drawn up on
"22 March 1982. You read out that statement to me. I
"declared that it is the truth and that I stand by it,
"on the understanding that I was not aware that the bank
"was in Baarn, at No. 1 Nieuwstraat. My knowledge stems
"from the fact that both Stanley Hillis and Paul
"Molhoek, as well as Aad Denie, had all told me about
"the hold up. They said that they had taken not only
"cash, but also American travellers' cheques and
"Euro-cheques. I myself saw a number of the Euro-cheques.'
"b. A report on the hearing of an anonymous witness
"dated 22 June 1982, drawn up and signed by
"Mr. AH Weijsenfeld, Deputy Examining Magistrate
"for criminal matters in the District of Utrecht,
"comprising inter alia - reproduced in substance:
"The sworn statement made to the aforementioned
"examining magistrate by a person who for fear of
"reprisals wishes to remain anonymous:
"'I stand by the statement which I made to the examining
"magistrate in Utrecht on 8 April 1982.
"I am not the person who telephoned anonymously to the
"Police Information Office in Amsterdam on 25 January 1982,
"nor the person who made a statement on 26 January 1982
"to the Police Station in The Hague. I am acquainted
"with Hillis, Kostovski, Molhoek and Denie and have no
"doubts as to their identity.'
"3. A statement made under oath at the Court sitting
"by Cornelis Weijman, comprising inter alia -
"reproduced in substance:
"'The report concerning the anonymous witness held on 23
"February, as recorded in the report made to me by Tom
"de Recht, is correct.
"The witness was heard in my presence by Examining
"Magistrates Nuboer and Weijsenfeld.
"I consider the anonymous witness to be entirely reliable.'
"4a. A statement made under oath at the Court sitting
"by Frederik Willem Reinhard Nuboer, comprising
"inter alia - reproduced in substance:
"'The anonymous witness heard by me on 8 April made a
"favourable impression on me.
"The police offered me a further anonymous witness,
"namely the man who telephoned anonymously to the
"Municipal Police Station in The Hague on 26 January 1982.
"I have refrained from hearing him, however, because I
"cannot guarantee his anonymity.'
"b. A statement made under oath at the Court sitting by
"Anton Hendrik Weijsenfeld, comprising inter alia -
"reproduced in substance:
"'I considered this anonymous witness heard by me on
"22 June 1982 to be not unreliable.'
21. Noting that the sources of the knowledge communicated by the
witness could not be checked; that it could not form itself an
independent judgment as to the witnesses' reliability, and that the
accused was deprived of the possibility of being confronted with the
witnesses, the trial court (Utrecht Regional Court) nevertheless
decided to accept the statements cited above as decisive and reliable
evidence. It was convinced of the applicant's guilt by this evidence
considering that the statements strengthened and sometimes
complemented each other and that the reporting Officer C. Weijman and
the Investigating Judges Nuboer and Weijsenfeld said at the trial with
regard to one of the two anonymous witnesses that he was "entirely
reliable", "reliable" and "not unreliable". In addition the trial
court noted that the applicant was previously convicted of similar
offences. The Utrecht Regional Court convicted the applicant and
sentenced him to six years' imprisonment on 14 September 1982.
22. The applicant appealed to the Amsterdam Court of Appeal
(Gerechtshof). This Court quashed the judgment appealed from on the
ground of discrepancies between the reasons stated in that judgment
and the facts that were considered to be proven. However, after a
retrial, the Amsterdam Court of Appeal likewise convicted the
applicant on 27 May 1983 of having participated in armed bank robbery
and sentenced him to six years' imprisonment.
23. Like the Utrecht Regional Court, the Amsterdam Court of Appeal
considered the above reports on the statements made before the police
and, as the case may be, before the investigating judges, by the two
anonymous witnesses to be admissible evidence. It was considered
plausible that, according to the declarations made before the
appellate court by a police inspector and the investigating judge,
both anonymous witnesses had justifiable reasons to fear reprisals
from the accused and his accomplices. The Court thereby considered
the applicant's guilt to be proven, noting that the anonymous
witnesses offered to give evidence on their own initiative and made
reliable or, as the case may be, reasonably reliable impressions on
the police inspector and the investigating judge. The Court
considered it to be a contributory factor that there was an innate
connection and coherence between the anonymously given statements.
In fixing sentence the Court of Appeal had regard to the applicant's
criminal record.
24. Subsequently the applicant appealed to the Supreme Court (Hoge
Raad). This appeal was rejected on 25 September 1984. The Supreme
Court found that the Court of Appeal dealt with the issue of whether
or not the statements of the anonymous witnesses could be admitted
and adduced sufficient reasons for doing so. The Court furthermore
stated that, if the judge deemed it necessary, in the interest of a
proper administration of justice, to restrict the obligation to answer
questions to some extent, and notably to allow a witness not to answer
questions about the identity of persons, the relevant provisions of
the Convention did not prevent him from doing so.
25. The attorney general (Procureur-General) had stated in his
submissions to the Supreme Court:
"... the entire situation, must soon lead to
further reflection and the laying down of rules
concerning the admissibility and the limits of the use
of evidence obtained from anonyous witnesses, in
particular in the light of Article 6 para. 3 (d) of the
Convention, as otherwise the confidence in the
administration of justice will be seriously shaken."
B. Relevant domestic law and practice
26. The Netherlands Code on Criminal Procedure (CCP) in its
present version does not contain provisions that deal expressly with
statements by anonymous witnesses.
What constitutes evidence is laid down in Article 339 CCP,
namely:
i) the judge's own observations;
ii) statements made by the accused;
iii) statements made by a witness at the trial;
iv) statements made by an expert;
v) written documents.
a) Evidence given by the witness
27. It follows from Article 342 CCP that statements of witnesses
must, in principle, be obtained at a hearing before the trial court.
(English translation of Article 342 CCP)
"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 of which he is accused,
solely on the statement of one witness."
28. Article 295 CCP provides for an exception to this rule. It
allows the use, as evidence, of a deposition made under oath before
the investigating judge if the witness is prevented by circumstances
beyond his control to appear before the court.
(English translation of Article 295 CPP)
"An earlier statement by a witness, who, having
been sworn in or instructed, in accordance with Article 216
para. 2, has died, or who, in the opinion of the court,
could not appear at the trial or of whom the hearing
[at the trial] has been dispensed with, in accordance
with Article 280 para. 7, shall be considered as having
been made at the trial, on condition that it is read
aloud there."
29. Article 187 CCP provides that where the investigating judge
considers that there are reasons to fear that a witness will be unable
to appear in court, he shall invite the Public Prosecutor and the
accused and his defence counsel to attend the hearing of this witness,
unless the examination has to be carried out without delay in the
interest of the investigation.
(English translation of Article 187 CCP)
"If the investigating judge is of the opinion
that there are grounds for assuming that the witness or
the expert will not be able to appear at the trial, he
shall invite the public prosecutor, the defendant
and counsel to be present at the preliminary hearing,
unless, in the interest of the investigation, no delay
of the hearing can be allowed."
30. A hearing of a witness at the trial in the presence of the
defence counsel but in the absence of the accused is not provided for
under Dutch law. On the contrary, it follows from the jurisprudence
of the Supreme Court (1), that in the absence of an accused his
defence 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, which are not punishable
by a prison sentence, before the Regional Courts as referred to in
Articles 270 and 398 (ii) CCP.
31. An accused may, however, be removed provisionally from the
court hearing while the hearing may continue in the presence of his
defence counsel.
Such measures can be taken in the following cases:
- Article 304 CCP: when questions relating to the
mental state of the accused are discussed;
- Article 303 CCP: when the accused refuses
to remain silent or otherwise disturbs the
hearing;
- Article 292 (i): when a witness is heard in the
absence of the accused.
The defendant must, according to Article 285 (i) CCP, be given
the opportunity to put questions to a witness.
(English translation of Article 285 (i) CCP)
"After the witness has made his statement,
questions may be put to him by the judges, and,
following them in order, by the public prosecutor and
_____________
(1) 23.11.1971, Dutch Jurisprudence 1973, p. 293;
26.2.1980, Dutch Jurisprudence 1980, p. 246.
by the defendant or, if the witness has been summoned
or called up by or at the request of the defendant, or,
if the witness is heard at his own request, in
accordance with Article 280 para. 6, [after the judges,
the witness may be questioned in order] by the
defendant and by the public prosecutor. If, in
accordance with Article 284 para. 3, the witness has
already been interrogated by the defendant or his
counsel, then directly after the judges the public
prosecutor may put questions to him."
b) Documentary evidence
32. Written documents in the meaning of Article 339 CCP are
defined in Article 344 which reads in its relevant passages:
(English translation of the relevant provisions of Article 344 CCP)
"1. By written documents is understood:
1° ...;
2° reports and other writings, 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 writings; but these are only valid
in conjunction with the content of other means of
evidence.
2. The judge can accept as proven, that the
defendant has committed the act of which he is accused,
on the report of an investigating officer."
c) Case-law in regard to hearsay evidence
33. In a judgment of 20 December 1926 the Supreme Court ruled,
inter alia, that neither a literary nor a systematic
interpretation of the law lead to the exclusion of hearsay evidence
(de auditu). With regard to witnesses who wish to remain anonymous
for justified fear of reprisals the practice has developed to consider
them as witnesses who will be unable to appear in court and who may
therefore make a deposition under oath before the investigating judge
in accordance with Article 216 CCP. Article 187 CCP is not applied in
these cases and the Supreme Court sanctioned this practice, ruling in
a judgment of 4 May 1981 (1) that the failure to apply the rule
contained in Article 187 CCP did not render the testimony
inadmissible. The Supreme Court gave to understand in various
decisions that in the assessment of the probatory value of statements
obtained from anonymous witnesses extreme caution should be observed
(2).
____________
(1) Dutch Jurisprudence 1982, p. 268.
(2) E.g. judgment of 4.5.1981, Dutch Jurisprudence 1982, p. 268.
III. SUBMISSIONS OF THE PARTIES
A. The applicant
34. The applicant submits that the use of statements obtained from
anonymous witnesses in criminal proceedings against a defendant, who is
not able to challenge the content of these statements or to have a
direct confrontation with the witnesses, limits the elementary right of
the accused to a fair trial. Referring to the judicial practice in
many member States of the Council of Europe relating to the problem of
anonymous witnesses, he submits that statements from such witnesses
are usually admitted only as additional evidence.
35. The applicant considers the practice of the Netherlands courts
to admit statements from anonymous witnesses as evidence, subject to
particular caution, to be unsatisfactory. The obligation of the
Netherlands judges to state complementary reasons when relying on
statements obtained from anonymous witnesses has, in the applicant's
opinion, proved to be unsatisfactory. He points out that it is very
difficult, if not impossible, for the trial judge to assess the
reliability of a witness on the basis only of a written report or
verbatim record on this witness's deposition in pretrial proceedings.
36. Referring to the judgment of the Eur. Court H.R. in the
Unterpertinger case (see para. 45 below), the applicant submits that
it is of no relevance that in his case the Public Prosecutor likewise
did not attend the hearing of the witnesses. He points out that the
Public Prosecutor possessed all the information the police had
concerning the anonymous witnesses. In any event the fact that the
Public Prosecutor likewise did not attend the hearing of witnesses did
not prevent the Court in the Unterpertinger case from finding a
violation of the rights of the defence. In fact the impossibility to
put questions to the witnesses deprived the applicant of testing their
credibility. He considers that the absence of direct confrontation
with the defence leads to a situation in which a witness may be more
easily tempted not to tell the entire truth. The possibility of
submitting questions to the witness in writing or to put questions to
the examining officers does, in the applicant's opinion, not
constitute an adequate means to safeguard rights of the defence as
neither the trial court nor the defence can see the witnesses reaction
to the questions and observe the manner in which he replies. In any
event, only a few of the questions put by the defence were in fact
answered. Moreover, an anonymous witness who could make false
declarations would be immune from prosecution if he committed perjury.
37. The applicant finally submits that at least one of the
anonymous witnesses is presumably an informant of the police.
Granting a police informant the privilege of keeping his anonymity on
the basis of the seriousness of the offence denounced by him, amounts
to treating the suspect as being guilty. The applicant concludes
that, in his case, Article 1 paras. 1, 2 and 3 (d) of the Convention
were violated.
B. The Government
38. The respondent Government submit that none of the specific
rights laid down in Article 6 para. 3 (d) as components of the more
comprehensive right to a fair trial in the meaning of paragraph 1,
have an absolute character. When examining whether Article 6 was
violated, the proceedings have to be considered as a whole. The
circumstances in the present case were most exceptional judged in the
light of the Netherlands judicial practice but nevertheless the use of
the anonymous witnesses' statements was sanctioned by the Supreme
Court.
The necessity of the use of statements made by anonymous
witnesses at the pre-trial stage who, for fear of reprisals, refuse to
be heard in front of the accused at the trial arose in the Netherlands
in the course of time as a result of a development of crime becoming
more violent, more aggressive and more organised.
39. Explaining the Netherlands case-law the Government submit that
not only explicitly articulated threats but also a general
intimidating reputation of a suspect can be admitted as a valid reason
for a witness to remain anonymous. The Government point out that the
phenomenon of intimidation of witnesses by dangerous criminals who
belong to the sphere of organised crime is a threat to the rule of law
and to democratic society. In the light of such threats the
Governments had to find a balance between the protection of society
and of the witness and the interests of the suspect. Solutions like
screening off the witnesses in the courtroom, police protection,
change of identity, etc. were not adequate. The hearing of a witness
by the trial court in the absence of the defendant is, according to
the Government, not possible under Netherlands law, because the
opinion prevails that no exception was admissible from the rule laid
down in Article 283 (i) CCP (see para. 31 above). The Government
point out that even the Commission admitted in its case-law that
evidence of anonymous witnesses was an essential and necessary means
in combating organised crime. Furthermore, the Government doubt
whether a method whereby the name of the witness is made known to the
lawyer, but not to the accused, would be effctive. It is questionable
whether a lawyer can invoke his professional secrecy vis-à-vis his
client.
40. In the Government's opinion, the Unterpertinger judgment
cannot be interpreted as giving an absolute right to hear a witness.
The facts underlying the Unterpertinger case could be distinguished
from the present case as in the Unterpertinger case the persons who
laid the criminal charges afterwards relied on their right of refusal
to give evidence. In the present case the anonymous witnesses were
not the victims of the denounced offences and furthermore the
applicant could, in principle, put questions to these witnesses in
writing. Furthermore the applicant called the investigating judge and
the investigating police officer to appear in court. Questions, the
answer to which would have revealed the witness's identity, were,
however, not allowed. Therefore all questions which the applicant
wanted to ask these officers in order to find out how they tested the
reliability of the anonymous witnesses were stopped by the trial judge.
Nevertheless the Government consider that the courts dealt with the
evidence before them with utmost caution and circumspection. The
rights of the defence were therefore not violated.
IV. OPINION OF THE COMMISSION
A. Points at issue
41. The issue to be determined is whether having regard to the
fact that the court in convicting the applicant relied exclusively on
evidence given by anonymous witnesses, the applicant's right to a fair trial in
the sense of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) was violated.
42. The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention is
worded as follows:
1. In the determination of his civil rights and
obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing ...
and Article 6 para. 3 (d) (Art. 6-3-d) reads:
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.
43. The applicant complains that the two provisions are violated
because he had been convicted exclusively on the basis of statements
made to the police and in one case also to the investigating judge and
his deputy in the absence of himself, of defence counsel and also of
the public prosecutor by two witnesses whose identity remained unknown
to the court as they wished to remain anonymous and were therefore
not heard at the applicant's trial. He asserts that consequently he
had no opportunity to examine these anonymous witnesses or to have
them examined at any stage of the proceedings and to put their
credibility in doubt.
44. The Government submitted that in the interest of combating
organised crime and of the protection of witnesses it was necessary to
rely on anonymous witnesses. This was, however, done in a cautious
manner and the guarantees of a fair trial were respected in that the
public prosecutor was likewise not present when the two witnesses in
question made their depositions. Furthermore, the applicant and his
defence counsel had the opportunity to submit questions to the
witnesses in writing and to put questions to the officers who had
heard the anonymous witnesses. In these circumstances there is, in
the Government's submissions, no breach of Article 6 (Art. 6) of the
Convention.
45. The Commission first recalls that the guarantees contained in
paragraph 3 of Article 6 (Art. 6-3) of the Convention are specific
aspects of the general concept of a fair trial set forth in paragraph
1. In the circumstances of the present case the Commission will
therefore consider the applicant's complaints from the angle of
paragraph 1 taken together with the principles inherent in paragraph 3
(d) (cf. Eur. Court H.R., Unterpertinger judgment of 24.11.1986,
Series A no. 110, p. 14 para. 29).
46. The Commission next recalls that the question of the
assessment of evidence is subject to the discretion of independent and
impartial tribunals. While Article 6 para. 1 (Art. 6-1) of the Convention does
guarantee everyone's right to a fair trial, it does not prescribe
rules on the admissibility and assessment of evidence, which are
essentially matters for the national law. It is therefore not for the
Commission to decide whether or not domestic courts have correctly
assessed evidence, but only whether evidence for or against the
accused has been presented in a manner and the proceedings in general
have been conducted in such a way that he had a fair trial (Barbera
and others v. Spain, Comm. Report 16.10.86, paras. 101-102).
In that respect it is essential that the defense is given the
possibility to challenge any evidence produced in court and relied
upon for the judgment.
47. As far as the testimony of witnesses is concerned, this principle is
explicitly set out in Article 6 par. 3 (d) (Art. 6-3-d) of the Convention. As
regards the reading out at a trial of statements made by witnesses at the
investigating stage of criminal proceedings, the European Court of Human Rights
has already held that such practice is in itself not inconsistent with Article
6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention, but the use of such
statements as evidence must nevertheless comply with the rights of the defence,
which it is the object and purpose of Article 6 to protect. This creates
particular problems where the person "charged with a criminal offence", who has
the right under Article 6 para. 3 (d) (Art. 6-3-d) to "examine or have
examined" witnesses against him, has not had an opportunity at any stage in the
earlier proceedings to question the persons whose statements are read out at
the hearing (Unterpertinger judgment, loc. cit., para. 31).
48. In the present case, the defence had the possibility at the
investigating stage to put questions in writing. However, of the 14
questions which counsel wished to have put to the witness, only two
were answered, as the interests of the witness to remain anonymous was
given precedence over the interests of the defense to test the
veracity and reliability of the testimony. In this respect, the
present case differs essentially from decision No. 11219/84 (dec.
10 July 1985, to be published), where the Commission stressed that, after
the applicant was ordered to leave the courtroom, defense counsel had
every opportunity, in accordance with Article 6 para. 3 (d) (Art. 6-3-d), to
examine the two anonymous witnesses who appeared before the Court of
Appeal. Furthermore, the Commission notes that in the present case
the identity of the witnesses was known to the prosecution but not to
the defense.
It is true that the Commission has in the past repeatedly
rejected complaints concerning the use of hearsay evidence. It stated
in this connection that Article 6 para. 3 (d) (Art. 6-3-d) does not grant the
accused an unlimited right to secure the appearance of witnesses
before the court with a view to having them cross-examined. It
concluded therefrom that a police informant whose indications lead the
investigations in the direction of the accused may well have a
legitimate interest in remaining anonymous and if such anonymity were
to be refused and these people required to appear in court, much
information needed if crimes are to be punished would never be brought
to the knowledge of the prosecuting authorities (No. 8417/78, dec.
4.5.1979, D.R. 16, p. 200 [207]; see also No. 8414/78, dec. 4.7.79,
D.R. 17, p. 231 and No. 4428/70, dec. 1.6.72, Collection 40, p.1). It
is, however, a common feature of all the cases just cited that the
hearsay evidence in question was corroborated by further evidence such
as statements of other witnesses as well as documentary evidence or a
confession of the accused himself.
49. In the present case however, the evidence before the court
consisted exclusively in the declarations of the two anonymous
witnesses. Neither was any corroborating evidence, such as
instruments or products of the crime, at the disposal of the court,
nor had the applicant ever made any confessions.
50. Furthermore, the Commission points out that even the
statements of the anonymous witnesses were themselves hearsay, as they
only said what they had allegedly heard from third persons. Neither of
the two actually eye witnessed the hold-up and could describe it in
such a detailed manner as only an eye witness could have been able to
do. The fact that the staff of the bank were locked up is a detail
the knowledge of which could have been obtained in various ways
subsequent to the hold-up. Finally, the allegation by one of the
witnesses that he saw a number of Eurocheques is not an objective
factor that was or could be checked as to its correctness and its
relevance to the crime in issue such as to constitute an element to
make the witness' statement as a whole appear reliable and
conclusive.
51. The Commission does not find it necessary, in the present
case, to reach a general conclusion as to the compatibility of
reliance on statements by anonymous witnesses with the requirements of
a fair trial but finds that in the present case the rights of the
applicant to a fair trial and in particular to question witnesses for
the prosecution were not respected.
B. Conclusion
52. The Commission concludes, by unanimous vote, that there has
been a violation of paragraph 1 read in conjunction with paragraph 3
(d) of Article 6 (Art. 6-1+6-3-d) of the Convention.
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Concurring opinion of MM. Ermacora, Gözübüyük, Schermers and Vandenberghe
We share the view of the majority that in this case Article 6
para. 3 (d) of the Convention has been violated as the applicant had
no sufficient opportunity to examine or have examined witnesses
against him.
We also share the view that Article 6 para. 1 was violated,
because of the cumulation of a number of circumstances. We would,
however, have preferred to enumerate these circumstances more
extensively, adding also the following arguments:
1) The Commission is aware that the behaviour of an accused person
may possibly influence the normal course of the proceedings. However,
in the present case, no concrete, direct evidence of intimidation in
respect of the testimony has been submitted.
2) The fact that not only one but two anonymous witnesses indicated
the applicant and two other persons as being the authors of the
hold-up cannot be considered as sufficient additional proof
corroborating the individual statements, as it does not follow from
the judgment in the applicant's case that the witnesses did not know
each other and had not possibly concerted their indications to the
police and the investigating judge. Finally, the allegation by one of
the witnesses that he saw a number of Euro-cheques, is not an
objective factor that could be or was checked as to its correctness
such as to constitute an element justifying considering of this
witness's statement to be as a whole conclusive.
3) It follows from the case-law of the Court (cf. Eur. Court H.R.,
Engel and Others judgment of 8 June 1976, Series A no. 22) and of the
Commission that it is primarily up to the national judiciary to assess
the evidence which is produced before it. However, when anonymous
testimony is heard formally, under oath, by an investigating judge,
this is clearly intended to accord to this testimony greater value as
evidence, than to mere anonymous information which is submitted in
court.
The Public Prosecutor, who, in contrast to the investigating judge
and the defence, was aware of the identities of the witnesses, wished
to lend to the two reported anonymous statements the status of formal
testimony, under Dutch law. The same attitude can be found in respect
of an anonymous statement to the police, which is accepted by the
Court of Appeal in evidence, as testimony by a witness, upon a hearing
under oath of the police officer concerned. The specific guarantee
contained in Article 6 para. 3 (d) of the Convention, read in
conjunction with Article 6 para. 1 of the Convention, equally applies
to such evidence. The defence must be given the opportunity to
contradict the testimony submitted in evidence in a suitable manner.
Without the possibililty of contradiction, a balanced evaluation of
the testimony, given the need for equality of arms of the parties, is
not guaranteed by the procedure. All the more importance must be
attached to this guarantee where the decision of the judge, in
essence, is based on the anonymous testimony.
&_APPENDIX I&S
HISTORY OF PROCEEDINGS
Date Item
______________________________________________________________________
18 May 1985 Introduction of the application
20 March 1985 Registration of the application
Examination of Admissibility
2 December 1985 Commission's deliberations and
decision to invite the Government to
submit observations on the
admissibility and merits of the
application
25 February 1986 Government's observations
4 July 1986 Applicant observations in reply
3 December 1986 Decision on admissibility.
Commission decides to hold an oral
hearing on the merits.
Examination of the merits
5 January 1987 Decision on admissibility transmitted
to the parties
29 January 1987 Government's observations on the merits
13 February 1987 Applicant's observations on the merits
8 October 1987 Oral hearing on the merits, Commission's
deliberations on the merits
5 May 1988 Commission's continued deliberations on
the merits, final vote
12 May 1988 Adoption of the Report