AS TO THE ADMISSIBILITY OF
Application No. 19331/92
by Cornelis Jacobus LIEFVELD
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 11 January 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 19 December 1991
by Cornelis Jacobus LIEFVELD against the Netherlands and registered on
11 January 1992 under file No. 19331/92;
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 1963. At the time of
the introduction of the application, he was detained in The Hague, the
Netherlands. He is unemployed. Before the Commission he is
represented by J.M. Sjöcrona, a lawyer practising at The Hague.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant and his friend K. were suspected of the murder
of a Turkish man in the Amsterdam western harbour on or about
18 November 1988. The applicant's radio telephone was found next to
the corpse.
On 20 December 1988 the police received an anonymous phone call
informing them about a shooting in the western harbour area. The
anonymous caller told the police that a white passenger car had been
involved in the event and that he had heard that the tyres of the car
had been changed in order not to leave any trace. He also indicated
the registration number. Subsequently it appeared that the anonymous
man was known to the Criminal Intelligence Service (Criminele
Inlichtingendienst).
On the same day, 20 December 1988, the investigating judge
(rechter-commissaris) inspected the place of the crime at the western
harbour.
During the preliminary judicial investigation (gerechtelijk
vooronderzoek), K. was heard by the investigating judge on
30 December 1988 in the presence of his lawyer. He was also heard on
31 January 1989 in the presence of his lawyer and of the applicant's
lawyer. On that occasion, the applicant's lawyer had the opportunity
to put questions to K. which the latter answered.
On 9 March 1989 the investigating judge heard "Bravo", an
anonymous witness, under oath and after having ascertained his
identity, his reliability and the reasons adduced for wishing to remain
anonymous. "Bravo" declared that he knew the applicant well; that he
knew that the applicant had shot a Turk called Ali in the Western
harbour and received 15.000 or 20.000 Dutch guilders for this; that he
knew that the applicant had returned to the harbour to look for his
radio telephone, but that he had left as there were so many policemen
on the spot, and that he knew that the applicant, after the
assassination, had instructed a friend to have the tyres changed of a
white Ford Fiesta as he feared that the car might have left tyre tracks
in the field.
The witness R. had stated before the investigating judge on
30 December 1988 that the applicant had borrowed a white Ford Fiesta
with the registration number LD-33-ZD from R.'s girlfriend S. and that
the applicant, when he returned the keys of this car on 18 or
19 November 1988, instructed R. to change the car's tyres, which R. did
at the car tyre service station O. The owner of the car tyre service
station O. had declared on 28 December 1988 before the police that in
mid November 1988 a man in a white Ford Fiesta had insisted that the
tyres of this car be changed, despite the dealer's remark that the
tyres were still in perfect condition.
At the hearing of 11 May 1989 before the Amsterdam Regional Court
(Arrondissementsrechtbank), several people were heard: S., a
girlfriend of the applicant; K., the co-suspect, who was granted the
right to remain silent so as not to incriminate himself; the owner of
the café "C'est la vie" visited by the applicant and K., inter alia,
during the night of the murder; another guest of "C'est la vie" during
the same night; the police officer who heard S. and finally the
applicant.
After hearing each witness, the defence was given the
opportunity to put questions to the witness and to adduce arguments for
the defence.
On 25 May 1989 the Regional Court convicted the applicant of
murder and sentenced him to 15 years' imprisonment. It based its
finding of fact on the statements of: the witness who found the corpse,
six police officers, two experts, the applicant, two acquaintances of
the applicant, K., K.'s girlfriend, two members of the shooting club
of which the applicant was a member, the police officer who received
the anonymous call, the garage owner who changed the tyres, the chief
police inspector, the anonymous witness "Bravo" and the girlfriend of
the victim.
As to K., the Court observed that the applicant's representative
was present at K.'s hearing by the investigating judge and that on that
occasion he had the opportunity, of which he availed himself, to put
questions to K. who answered the questions without relying on his right
to remain silent. As to "Bravo", the Court considered that at the
hearing the applicant's representative did not ask for an adjournment
in order to have "Bravo" heard again by the investigating judge;
moreover the applicant's representative renounced hearing further
witnesses.
The applicant lodged an appeal with the Amsterdam Court of Appeal
(Gerechtshof) which adjourned its hearing of 8 November 1989 until
12 January 1990 in view of its schedule.
At its hearing on 12 January 1990, the Court of Appeal heard S.,
a girlfriend of the applicant; a guest of the café "C'est la vie";
the investigating judge; a barmaid at "C'est la vie"; an acquaintance
of the victim; the owner of "C'est la vie" and his wife; a handyman who
worked for the applicant and the bartender at the shooting club.
On that occasion, the investigating judge explained that she knew
"Bravo"'s identity, that she had assessed his reliability, that his
fears for reprisals justified his wish to remain anonymous and that she
had subsequently ascertained via other independent channels the
correctness of "Bravo"'s statements to her on 9 March 1989.
After hearing each witness, the defence was given the opportunity
to put questions to the witness and to adduce arguments for the
defence.
In the light of the recent case-law of the Convention organs, the
Procurator General (Procureur Generaal) requested that "Bravo" be heard
again by the investigating judge and that the defence be able to
question him on that occasion. The Court of Appeal granted this
request and adjourned the hearing.
On 15 February 1990 the investigating judge heard "Bravo" again
in a location outside her office while the applicant's representative
remained in the investigating judge's office. By means of a telephone
connection with a voice distorter, "Bravo" answered the applicant's
representative's questions, insofar as his answers did not compromise
his anonymity. The applicant's representative had submitted questions
in writing to the investigating judge who put them herself to "Bravo".
During the hearing, the applicant's representative was able to put
additional questions to "Bravo" through the telephone.
At the following hearing of the Court of Appeal on 14 March 1990,
the following persons were heard: the applicant, the police officer who
heard S., a guest of the café "C'est la vie", the owner of "C'est la
vie", K. and four experts.
After hearing each witness, the defence was given the opportunity
to put questions to the witness and to adduce arguments for the
defence.
On 28 March 1990 the Court of Appeal convicted the applicant of
murder and sentenced him to 12 years' imprisonment. It based its
judgment on the same evidence as that used by the Regional Court and
on the findings of the investigating judge during her inspection of the
area where the crime was committed, on the statements of the
investigating judge, the applicant and a guest from "C'est la vie" at
its hearing of 12 January 1990 and on the hearing of "Bravo" by the
investigating judge on 9 March 1989 and 15 February 1990 respectively.
As to the information provided anonymously by telephone to the
police, the Court of Appeal found it to be admissible in evidence since
the applicant's conviction was not exclusively or mainly based on this
information which, in addition, was supported by several other elements
of evidence. With regard to the statements made by "Bravo" before the
investigating judge, the Court of Appeal held that they were admissible
in evidence as the investigating judge knew "Bravo"'s identity and
decided on serious grounds that "Bravo"'s anonymity should be
respected, as the investigating judge correctly examined "Bravo"'s
reliability and finally, as the applicant's representative was given
the opportunity to put questions to "Bravo" before the investigating
judge. According to the Court, this conclusion was not altered by the
fact that "Bravo" did not answer certain questions which the defence
qualified as essential since there was a danger of "Bravo"'s identity
being disclosed. Article 6 para. 3 (d) of the Convention had therefore
been respected.
On 25 June 1991 the Supreme Court (Hoge Raad) dismissed the
applicant's plea of nullity. As an additional ground for the
admissibility in evidence of the anonymous phone call to the police,
it held that no issue could arise since this informer could neither be
heard by the defence nor by the prosecution and that, moreover, the
defence could question the witnesses heard in connection with the
anonymous information.
COMPLAINTS
The applicant complains that he did not have a fair trial since
he did not have the opportunity to examine adequately and properly
"Bravo" and the anonymous police informer whose testimonies were used
in evidence against him. He further states that "Bravo"'s testimony
could not be admitted in evidence pursuant to the relevant Dutch case-
law. He argues in this respect that the telephone connection through
which his representative received "Bravo"'s answers to the questions
put by him, but read to "Bravo" by the investigating judge, cannot be
accepted as an examination of a witness by the defence. He invokes
Article 6 paras. 1 and 3 (d) of the Convention.
THE LAW
The applicant complains that he did not have a fair trial since
he did not have the opportunity to examine adequately and properly
"Bravo" and the anonymous police informer whose evidence was used in
convicting him. He further states that "Bravo"'s testimony could not
be admitted in evidence pursuant to the relevant Dutch case-law. He
argues in this respect that the telephone connection through which his
representative received "Bravo"'s answers to the questions put by him
but read to "Bravo" by the investigating judge cannot be accepted as
an examination of a witness by the defence. He invokes Article 6
paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention which provide,
insofar as relevant:
"1. In the determination of ... any criminal charge against him,
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law.
...
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; ..."
With regard to the decision of the Dutch courts in the present
case to admit the testimony of "Bravo" and of the police informer in
evidence pursuant to the relevant Dutch case-law, the Commission
recalls that the admissibility of evidence is primarily governed by the
rules of domestic law, and as a general rule it is for the national
courts to assess the evidence before them (see Eur. Court H.R., Lüdi
judgment of 15 June 1992, Series A no. 238, p. 23, para. 43).
However, the applicant's complaint that he was unable properly
to challenge the evidence of "Bravo" and the police informer is a
matter falling within the scope of the guarantees laid down in para.
3 of Article 6 (Art. 6-3) of the Convention, these guarantees being
specific aspects of the right to a fair hearing ensured by para. 1 of
this provision (see Eur. Court H.R., Isgrò judgment of
19 February 1991, Series A no. 194-A, p. 12, para. 31).
The Commission will consider the complaint under the two
provisions taken together. It must ascertain whether the proceedings,
considered as a whole, including the way in which the evidence was
submitted, were fair (Lüdi judgment loc. cit.).
The Commission recalls that, in principle, all evidence must be
adduced in the presence of the accused at a public hearing with a view
to adversarial argument. However, the use as evidence of statements
obtained at the stage of the police inquiry and the judicial
investigation is not in itself inconsistent with paragraphs 3 (d) and
1 of Article 6 (Art. 6-1, 6-3-d), provided that the rights of the
defence have been respected. As a rule these rights require that the
defendant be given an adequate and proper opportunity to challenge and
question a witness against him either when he was making his statements
or at a later stage of the proceedings (see Eur. Court H.R., Saïdi
judgment of 20 September 1993, Series A no. 261-C, para. 43).
In the present case both the Regional Court and the Court of
Appeal based their decision on, inter alia, the statements of the
applicant, of K., of several police officers, of two experts, of the
police officer who received the anonymous call and of his superior as
well as of "Bravo" before the investigating judge. The Court of Appeal
also took into consideration, inter alia, the applicant's and the
investigating judge's statements at its hearing of 12 January 1990 and
the evidence given by "Bravo" before the investigating judge on
15 February 1990.
The Commission recalls that the applicant had the opportunity to
question "Bravo", to dispute his version of the events and to present
his own to the courts. The Commission notes in this respect that the
applicant did not before the Regional Court ask for "Bravo" to be
heard, but that the Procurator General at the Court of Appeal requested
that "Bravo" be heard again by the investigating judge and that the
defence be given the opportunity to question him.
The applicant was accordingly given the opportunity to question
"Bravo" during the second hearing of "Bravo" by the investigating judge
on 15 February 1990, in circumstances enabling the witness to protect
himself while at the same time respecting the applicant's right of
defence.
The Commission notes that the investigating judge considered
"Bravo", whose identity she knew, as reliable and found that this
witness' fear of reprisals justified his wish to remain anonymous.
With regard to the statement of the anonymous police informer,
the Commission notes that, although neither the prosecution nor the
defence could question him, his statements were supported by the other
evidence adduced in the course of the proceedings.
The Commission finally notes, that neither the statement of
"Bravo" nor that of the anonymous police informer constituted the only
or main item of evidence on which the applicant's conviction was based.
In conclusion, the Commission is satisfied that the
administration of the evidence at the applicant's trial was fair.
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 Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy