LORSE v. THE NETHERLANDS

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44484/98
by Jacobus LORSÉ
against the Netherlands

The European Court of Human Rights (Second Section), sitting on 27 January 2004 as a Chamber composed of

MrJ.-P. Costa, President,
MrA.B. Baka,
MrL. Loucaides,
MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen,
MrM. Ugrekhelidze, judges,

and Mr T.L. Early, Deputy Section Registrar,

Having regard to the above application lodged on 26 October 1998,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jacobus Lorsé, is a Netherlands national, who was born in 1945 and is, as far as the Court is aware, serving a prison sentence in Dordrecht. He is represented before the Court by Mr A.A. Franken, a lawyer practising in Amsterdam.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Events prior to the criminal proceedings against the applicant

In 1991 a criminal investigation under the code name ‘Laundry’ was opened into a criminal organisation engaged in drug trafficking. The investigation was prompted by discovery in the harbour of Rotterdam on 15 May 1991 of 357 kilograms of cocaine in a shipment of wood on board a ship from Surinam.

A team of police officers (the Laundry team) was composed and in September 1991, upon application of the public prosecutor (officier van justitie), the investigating judge (rechter-commissaris) of the Regional Court (arrondissementsrechtbank) of Rotterdam opened a preliminary judicial investigation (gerechtelijk vooronderzoek) against a number of persons and companies suspected of being involved in drug trafficking, money laundering, bribery, intimidation and forgery. Among the suspects was the applicant, who was suspected of being the ringleader of the criminal organisation.

In the course of the investigation telephones and faxes were tapped, observations were carried out, infiltrators were used to try to gather information, requests for mutual legal assistance were made and over 60 suspects and 90 witnesses were interrogated.

Two of the co-suspects, De Brakeleer and Stewart, at a certain point indicated to the Laundry team that they were willing to make a statement incriminating the applicant, but that these statements would also be self-incriminatory. Thereupon, the leaders of the Laundry-team, police officer Van Vugt and Public Prosecutors Witteveen and Van der Hoeven, concluded agreements with them. Stewart would not be prosecuted for any crime to which he confessed (with the exception of murder) and no active investigation would be carried out into crimes committed by De Brakeleer provided that they stated the truth and confirmed their statements before a judge. After the agreements were concluded both witnesses were interrogated several times by police officers Homan and Vreeswijk. De Brakeleer made statements, inter alia, about the applicant’s remarks concerning cocaine trafficking from Surinam and about the involvement of the applicant, of a certain Slimmens and of himself in two transports of drugs to Morocco in November 1991 and January 1992, the first in a Mitsubishi motor car and the second in a Renault. Stewart described, inter alia, the applicant’s involvement in the transport of cocaine in the shipment of wood from Surinam.

The notes made of these interrogations were expanded in official reports (made under the oath of office of both police officers) which were subsequently signed and initialled page by page by the witnesses after they had read the reports.

In December 1993 Stewart was shot dead.

In June 1994 De Brakeleer was arrested in Morocco for drugs offences unrelated to the present case. He was sentenced to 8 years’ imprisonment.

Witness and co-suspect MacDonald, who was arrested when the 357 kilograms of cocaine were seized, stated to police officers Van Loon and De Vis that he had imported the shipment of wood – in which the cocaine had been hidden – at the request of some Dutchmen.

Witness and co-suspect Slimmens described the involvement of the applicant, De Brakeleer and himself in the two transports of drugs to Morocco in the Mitsubishi in November 1991 and in the Renault in January 1992.

The applicant was arrested and placed in pre-trial detention on 24 July 1994.

2. Criminal proceedings against the applicant

The final charges against the applicant can be summarised as follows:

1) participation in the transport of cocaine in the shipment of wood from Surinam;

2) participation in the transport of drugs to Morocco in January 1992 in a Renault;

3) participation in the transport of drugs to Morocco in November 1991 in a Mitsubishi;

4) participation in an attempt to import a large amount of cannabis from Nigeria;

5) participation in the import of a large amount of cannabis in 1993;

6) membership of a criminal organisation;

7) several offences under the Arms and Ammunition Act.

Between 21 October 1994 and 31 May 1995, 15 hearings were held before the Regional Court of Rotterdam. On 14 June 1995 the Regional Court acquitted the applicant of the fifth charge, convicted him of all the other charges and sentenced him to 12 years’ imprisonment and a fine of 1,000,000 million Netherlands guilders (NLG).

The applicant and the public prosecutor both lodged an appeal and between 22 November 1995 and 28 January 1997, 24 hearings were held before the Court of Appeal (gerechtshof) of The Hague.

In the course of the proceedings before the Regional Court and the Court of Appeal oral evidence was taken from the applicant and numerous witnesses and co-suspects were heard in open court, before the investigating judge and in Surinam and Morocco. In the course of the proceedings the following relevant events occurred:

The applicant admitted the firearms offences, but denied the other charges.

Police officers Vreeswijk and Homan, who took down the statements of Stewart and De Brakeleer, were questioned extensively before the investigating judge, before the Regional Court and before the Court of Appeal about the initial contact with Stewart and De Brakeleer, about the agreements made with them, about the course of the interrogations, about the way the interrogations and statements were structured, about the signing of the statements and about the motives of both men for testifying. During the questioning of Vreeswijk before the investigating judge in November 1994 the agreement with De Brakeleer was mentioned to the defence for the first time.

Several attempts to question De Brakeleer in Morocco remained fruitless, because of the initial reluctance of the Moroccan authorities to co-operate and the refusal of De Brakeleer to testify. When the difficulties between the Netherlands and Morocco with regard to mutual legal assistance (rechtshulpverkeer) had been cleared up, the Court of Appeal decided that a new attempt should be made to question him, but limited the scope of the questioning to the first charge, considering that by answering questions about the other charges he was likely to incriminate or endanger himself. Since the Moroccan authorities did not allow the defence to attend the interrogation and the investigating judge was unable to travel to Morocco at short notice, it was decided, with the consent of the defence, that the Procurator General would attend the interrogation in Morocco.

On 4 October 1996 De Brakeleer wrote letters to the applicant’s lawyer and the investigating judge, saying that he wanted to withdraw the statements he made to the police because he had been put under great pressure by the police during the interrogations and because he had been promised that these statements would not be used in the case file.

De Brakeleer was questioned in Morocco on 28 October 1996 in the presence of the Procurator General. Questions which the defence had put in writing regarding the first charge were put to De Brakeleer. He maintained that his letters of 4 October were accurate.

Police officers Vreeswijk and Homan were confronted in open court with De Brakeleer’s letters and statement. They disputed his assertions.

The leader of the Laundry team, police officer Van Vugt, was questioned by the investigating judge, by the Regional Court and by the Court of Appeal about, inter alia, the agreements with De Brakeleer and Stewart, the interrogations of MacDonald and Stewart and the use of special investigative powers (bijzondere opsporingsbevoegdheden) such as the use of video cameras, tracking devices, police informers and infiltration. Before the Regional Court he stated that, as far as he knew, no infiltrators had been used in the Laundry investigation. In reply to questions from the defence regarding the use made of special investigative powers, especially infiltration, Public Prosecutor De Groot referred to the statement of Van Vugt. 

During the first hearing before the Court of Appeal the procurator general submitted an official report of police officer Brinkman, the leader of the infiltration team in this case, concerning the use of infiltrators in the Laundry investigation. Thereupon, police officer Brinkman and Public Prosecutor De Groot were called to testify before the Court of Appeal.

Police officer Brinkman was questioned twice about the use of infiltrators and the procedure followed in this respect. He stated that an attempt had been made to infiltrate the organisation of the applicant, but that the action had been terminated, because the infiltrators had hardly managed to establish contact with anyone and no evidence or even information had been obtained.

Public Prosecutor De Groot was heard as a witness twice and stated that an attempt had been made to infiltrate. In accordance with the instructions on infiltration he had not mentioned this in first instance, because the infiltration did not yield any information whatsoever. He was also questioned about the start of the investigation, about Stewart and De Brakeleer and about the interrogation of MacDonald.

Before the investigating judge MacDonald refused to reveal the identity of the Dutchmen who had ordered the transport of the shipment of wood from Surinam, but he denied having received instructions from the applicant. Thereupon police officer Van Loon, who had interrogated MacDonald shortly after his arrest, was ordered by his superiors to write an official report about these interrogations. In this report he related that MacDonald had mentioned to him and his colleague De Vis that the applicant had ordered the transport. Van Loon and De Vis confirmed this course of events before the investigating judge. Van Loon confirmed it again in open court before the Regional Court and before the Court of Appeal. At the request of the defence Van Loon and MacDonald were confronted with each other before the Court of Appeal. MacDonald persisted in his denial that he had ever mentioned the applicant’s name. At the request of the Procurator General the Court of Appeal drew up a separate record of his statement and had MacDonald arrested on suspicion of perjury. It rejected the request of the defence to commit MacDonald in order to force him to give the names:

“... because there is no imperative necessity for the investigation or the defence. The witness explicitly stated he did not refer to Lorsé ... when he mentioned the group of Dutchmen. On top of that, the court holds that committal is useless, with a view to the remarks of the witness that he refuses to give names, even if it would mean another 10 years in prison. Furthermore, the president notes that the court suspects witness MacDonald of perjury committed during this court hearing and orders an inquiry, in view of the statements of witness Van Loon...of the statement of witness De Vis to the investigating judge, and of the witness Van Vugt...”

Before the investigating judge Max Slimmens withdrew the part of the statement he made to the police which incriminated the applicant; the name of the applicant in his statement must have been due to typing errors. Furthermore, he declared that he had been put under great pressure by the police and had had to confirm what they told him, otherwise he would not have been permitted to attend the funeral of his father-in-law. Slimmens was also called to testify as a witness before the Court of Appeal, but he refused to give evidence in order not to incriminate himself.

Police officer Boerman, who had interrogated Slimmens, was heard as a witness by the Regional Court and by the Court of Appeal about these interrogations. He stated that Slimmens had mentioned the applicant’s name in relation to the transport of the drugs and had indicated that the applicant was the leader of the organisation. He denied Slimmens’ allegation about the exercise of pressure.

During the examinations of the above-mentioned police officers and Public Prosecutor De Groot some questions were blocked, including questions aimed at finding out whether Stewart (and several other persons) had been police informers. The defence had argued that the answers to these questions were necessary to test the reliability of Stewart. The Court of Appeal considered that people in Stewart’s circles or other police informers could be put in danger by the answer to these questions and that these answers could hardly contribute to testing Stewart’s reliability.

Apart from the above-mentioned witnesses, over twenty other witnesses were heard in open court, some of them more than once. Several of them were questioned about the credibility of Stewart and De Brakeleer or confronted with their statements.

Both the Regional Court and the Court of Appeal rejected the request of the defence to take evidence from Public Prosecutor Witteveen. The defence had asked for him to be heard about the methods of investigation and the procedures by which the agreements had been given official approval. The Court of Appeal considered the questioning of Public Prosecutor Witteveen superfluous and noted that it could not reasonably be held that this decision prejudiced the applicant’s defence.

A request of the defence to submit the notes Homan and Vreeswijk had made of the interrogations of Stewart and De Brakeleer was rejected by the prosecution, the Regional Court and the Court of Appeal. The Court of Appeal considered it unnecessary, holding that these notes were the forerunners of the official reports, which were made up under oath of office by both police officers and read and signed by the witnesses. In addition, the police officers had been heard, under oath, in open court and nothing had become apparent or specified so as to give rise to doubts that the official reports had been manipulated or were incorrect, incomplete or a misrepresentation of the statements of Stewart and De Brakeleer.

The prosecutor and the domestic courts also rejected a request to order the submission of the detention record of Stewart and the official reports of the infiltration. The Court of Appeal considered such an order superfluous, because police officers had been and would be questioned with regard to the course of events surrounding Stewart’s interrogations and the infiltration.

During the hearings and in their pleadings the defence had, inter alia, disputed the permissibility and legal basis of the agreements, pointing to political developments in the field of “deals with criminal witnesses”. The compliance of the agreements with a circular of the Procurators General concerning agreements with criminal witnesses was also challenged and the defence argued that the statements of Stewart and De Brakeleer could not be used in evidence since their statements were unreliable and since the defence had been unable to question them. Furthermore, the defence challenged the refusal to commit MacDonald, the use in evidence of the statements of Slimmens and the silence of Public Prosecutor De Groot in first instance about the use of infiltrators. 

On 11 February 1997 the Court of Appeal gave judgment. It quashed the judgment of the Regional Court, acquitted the applicant of the fifth charge and convicted him of the import of 357 kilograms cocaine in the shipment of wood from Surinam, the transports of drugs to Morocco in the Mitsubishi and the Renault, the attempted transport of marihuana from Nigeria, membership of a criminal organisation and unlawful possession of arms and ammunition. He was sentenced to 15 years’ imprisonment and a fine of NLG 1,000,000.

The Court of Appeal considered that the political developments referred to by the defence did not lead to the conclusion that the agreements were not permissible under Netherlands law. It subsequently examined the circumstances in which the agreements were concluded and their contents and found that they were in conformity with the circular of the Procurators General and not contrary to the principles governing the proper conduct of proceedings.

With regard to the use in evidence of the statements of Stewart and De Brakeleer the Court of Appeal considered: 

“It should be taken into account that, when the deals were made, it was the intention that the defence should get the opportunity to question the witnesses and test their statements. The fact that this became impossible (because of Helio Stewart’s death and De Brakeleer’s imprisonment in Morocco) cannot lead to the exclusion of evidence as a matter of principle based on the fact that deals were made, but it does imply that these statements have to be used with the greatest caution.”

The Court of Appeal further considered:

“As held above, the statements of Stewart have to be regarded and checked extremely critically. [...] In spite of the fact that the right of the defence to question Stewart and De Brakeleer could not be realised and that the public prosecution service concluded agreements with these witnesses who were also suspects, the court considers...their statements as laid down in the official reports of the police... credible and usable in evidence of the charges.

The court has taken into account that the conviction is not based to a decisive extent on any one of these statements and that these statements by Stewart and De Brakeleer, of which every page was initialled and signed, mutually slot together to a great extent and confirm one another and are corroborated to a large extent by other evidence.”

With regard to the silence of Public Prosecutor De Groot before the Regional Court in the matter of the infiltration the Court of Appeal considered:

“In view of the complete lack of results of the infiltration the point of view of Mr De Groot that – when asked whether use was made of special methods of investigation such as infiltration – there was no need to mention the infiltration, is understandable, but – in light of the currently desired openness on these topics – in the opinion of the court, incorrect. Although in the opinion of the court this action should have been mentioned, this does not bar the prosecution, because it was not a deliberate deception.”

Regarding the refusal to commit MacDonald the Court of Appeal held:

“The court does not consider MacDonald’s answer to the question who was involved in importing the cocaine of urgent necessity in the interest of the examination. In the end, it comes down to the question: does the court accept the remarks MacDonald made according to the police officers Van Loon and De Vis as true or not.”

The Court of Appeal further rejected the argument that Slimmens’ statements had been illegally obtained and found that his statements to the police were credible and corroborated to a high degree by other items of evidence.

The Court of Appeal based the conviction of the applicant on the applicant’s statements, on numerous witness statements, including those of Stewart, De Brakeleer, MacDonald and Slimmens, on several official reports, on the conclusions of the Forensic Laboratory (Nederlands Forensisch Instituut), on (financial) documents and the contents of intercepted faxes and telephone calls.

The applicant lodged an appeal on points of law with the Supreme Court (Hoge Raad), submitting an extensive statement of grounds of appeal.

The Supreme Court gave judgment on 30 June 1998. In response to the complaints concerning the contents and conclusion of the agreements with Stewart and De Brakeleer the Supreme Court held that, as long as the conclusion of agreements was not regulated by law, what should be examined was the question whether the actual circumstances of every case were compatible with the fundamental rights of an accused as guaranteed in Article 6 of the Convention and with the principles of proper conduct of proceedings derived from, inter alia, Article 6 of the Convention. The Supreme Court referred to a number of Commission decisions (X. v. the United Kingdom, no. 7306/75, Commission decision of 6 October 1976, Decisions and Reports 7, p. 115; Salmon Meneses v. Italy, no. 18666/91, Commission decision of 30 November 1994, unreported; and Flanders v. the Netherlands, no. 25982/94, Commission decision of 15 January 1996, unreported). Noting that the reliability of statements by a suspect in exchange for promises by the prosecution might be adversely affected by what a witness felt obliged to do or by what he or she deemed to be in their own best interest, it considered that, where the credibility of a witness had been challenged, it should appear clearly from the trial courts’ judgments that this issue had been examined and that this kind of witness should be interrogated by a judge, the defence being offered the opportunity to put its own questions.

In the absence of a possibility to examine such a witness, the statements made to the police should, in principle, not be used in evidence, unless the impossibility to question witnesses was not attributable to the judicial authorities and the limitations on the possibility to examine the reliability of these statements were compensated to such an extent that the right of an accused to a fair trail, as laid down in Article 6 of the Convention, was not violated by the use in evidence of these statements.

In the absence of such an interrogation, it was in principle not permissible to use in evidence any such statements which were challenged. An exception to this rule could be accepted, however, in cases where such an interrogation proved impossible for reasons not imputable to the judicial authorities, provided that the resulting difficulty in testing the reliability of the statements in question was compensated sufficiently to ensure that including them among the evidence relied on to ground a conviction did not infringe the rights of the defence as guaranteed by Article 6.

After having examined the proceedings before the trial courts and the judgment of the Court of Appeal, the Supreme Court upheld the judgement of the Court of Appeal, dismissing the applicant’s grounds of appeal, in part because of non-compliance with procedural requirements.

In March 1998 the defence received the case-file of another preliminary investigation against the applicant, in which the applicant’s involvement in two murders in 1985 and 1986 was investigated. Among the statements concerning these murders were statements Stewart made in 1987 and September 1993. The case-file further contained a written draft of the agreement with Stewart. In 2000 the applicant’s lawyer laid hands on a statement of a witness made in the context of another drugs investigation in which business relations of MacDonald were described.

B.  Relevant domestic law and practice

On 1 July 1983 the Procurators General issued a circular in which guidelines were laid down on agreements with criminal witnesses. Special agreements with criminals were only allowed in exceptional cases, in which the investigative interest or the ending or prevention of crimes should outweigh the disadvantages of these kinds of agreements (cases of life and death or cases of similar seriousness). Furthermore, these agreements should be a last resort and it had to be likely that the aim pursued could not be reached by other means. The information to be obtained had to be essential to the realisation of the aim pursued. The offer in return could only be granted in case the provided information has proved its soundness.

In the early 1990s serious concerns arose over methods of criminal investigation used in cases concerning organised crime. A parliamentary commission of inquiry (parlementaire enquêtecommissie) was instituted which presented its final report on 1 February 1996. In this report agreements concluded with suspects testifying against co-accused were criticised. The commission was of the opinion that these kinds of agreements should be explicitly regulated by law and should in no event be allowed to lead to complete immunity from prosecution. The Minister of Justice subscribed to this opinion and at the present time legislation is in preparation to regulate agreements with criminal witnesses.

COMPLAINTS

The applicant complained under Article 6 of the Convention that his right to a fair trial was violated by the use in evidence of the statements Stewart and De Brakeleer made to the police, because:

        these statements were obtained after the witnesses were promised immunity from prosecution;

        the national courts neglected the recently expressed opinion of the legislature that agreements with criminal witnesses should be provided for by law and should not include immunity from prosecution;

        Netherlands law and the circular of the Prosecutors General did not provide a sufficient basis for the agreements;

        the defence was unable to question Stewart and De Brakeleer due to the negligence of the authorities;

        the domestic courts did not accede to the request to hear Public Prosecutor Witteveen, to commit MacDonald, to allow questions intended to find out whether Stewart had been a police informer and to order the submission of the detention record and the notes of the interrogations, all allegedly necessary to examine the credibility of Stewart and De Brakeleer;

        the applicant’s conviction on one of the charges was based to a decisive extent on the statement of Stewart;

        the Court of Appeal used the statements of Slimmens as corroborating evidence, in spite of the fact that he refused to testify before the Court of Appeal;

        the agreement with De Brakeleer was not disclosed to the defence from the outset;

        the prosecution authorities failed to supply the defence with the statements Stewart made in the murder case, with the draft agreement with Stewart and with the statement of the business relations of MacDonald. These documents could have been used to raise doubts about the credibility of Stewart.

The applicant furthermore complained of a violation of his right to a fair trial in that prosecutor De Groot who was in charge of the investigation deliberately withheld information concerning the use of infiltrators and the defence was refused copies of the official reports of the infiltration.

THE LAW

The applicant complained that his right to a fair trial as guaranteed by Article 6 of the Convention was violated by the conclusion and contents of the agreements made by the prosecution authorities with the witnesses Stewart and De Brakeleer and by the use in evidence of the statements subsequently obtained from these witnesses. Article 6 of the Convention, in so far as relevant to the present case, provides as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...

2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3.  Everyone charged with a criminal offence has the following minimum rights:...

(b)  to have adequate time and facilities for the preparation of his defence; ...

(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; ...”

Before examining the various complaints made by the applicant the Court reiterates that it follows from Article 35 § 1 of the Convention that it may, inter alia, only deal with a matter after all domestic remedies have been exhausted. The Court notes that the applicant did not explicitly raise all the complaints he made to the Court in the proceedings before the Supreme Court and further recalls that his complaints to the Supreme Court were dismissed in part on procedural grounds. In such circumstances the issue arises as to whether, at least in respect of some of the complaints, the applicant has exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. The Court does not, however, find it necessary to pursue this question as it finds that the application is in any event inadmissible for the following reasons.

According to the Court’s established case-law, the guarantees of paragraph 3 of Article 6 of the Convention are specific aspects of the right to a fair trial set forth in Article 6 § 1 of the Convention (see, among other authorities, Asch v. Austria, judgment of 26 April 1991, Series A no. 203, § 25, and more recently S.N. v. Sweden, no. 34209/96, § 43, ECHR 2002‑V). The Court will therefore examine the applicant’s complaints with regard to the overriding principle of fairness set out in that provision.

The Court reiterates at the outset that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). It is not the task of the Court to determine, as a matter of principle, whether particular types of evidence – for example unlawfully obtained evidence – may nevertheless be admitted in evidence. The question which must be answered is whether the proceedings in their entirety, including the way in which evidence was taken, were fair (see Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V).

The Court’s case-law further establishes that it is a fundamental aspect of the right to a fair trial that criminal proceedings should be adversarial and that there should be equality of arms between the prosecution and the defence. This does not mean that the parties must be put in exactly the same position as each other. This principle does, however, require that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party (see, among other authorities, Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 60, ECHR 2000‑II).

Furthermore, the Court has previously held that the use of statements made by witnesses in exchange for immunity or other advantages may put in question the fairness of the hearing granted to an accused and is capable of raising delicate issues since, by their very nature, such statements are open to manipulation and may be made purely in order to obtain advantages or for personal revenge. However, the use of this kind of statement does not in itself suffice to render the proceedings unfair (see Erdem v. Germany (dec.), no. 38321/99, 9 December 1999; X. v. the United Kingdom, cited above; Flanders v. the Netherlands, cited above; and, mutatis mutandis, Mambro and Fioravanti v. Italy, no. 33995/96, Commission decision 9 September 1998, unreported).

Finally, the Court reiterates that, although all evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument, the use in evidence of statements obtained at the stage of the police inquiry and the judicial investigation is not in itself inconsistent with §§ 1 and 3 (d) of Article 6, 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 Saïdi v. France, judgment of 20 September 1993, Series A no. 261‑C, § 43, and, more recently, the above mentioned S.N. judgment, § 44). However, if there has been no negligence on the part of the authorities, the impossibility of securing the appearance of a witness at the trial does not in itself make it necessary to halt the prosecution. In such a situation it is open to the domestic courts, subject to the rights of the defence being respected, to have regard to the statements obtained by the police and the investigating judge, in particular if the courts can consider those statements to be corroborated by other evidence before them and the conviction is thus not based solely or to a decisive extent on those statements (see Artner v. Austria, judgment of 28 August 1992, Series A no. 242‑A, § 21; Doorson v. the Netherlands, judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, § 80; and Luca v. Italy, no. 33354/96, § 40, ECHR 2001-II).

Turning to the circumstances of the present case, the Court observes that the public prosecution service concluded agreements with Stewart and de Brakeleer, that the defence was unable to question them and that statements obtained from them were used in evidence against the applicant. The applicant has raised a number of complaints relating specifically to the conclusion and contents of these agreements and to the use in evidence of Stewart’s and de Brakeleer’s statements. The central question for the Court, however, is, as stated above, whether the proceedings as a whole were fair which, in a case like the present one, requires the existence of fair procedures to examine the admissibility and test the reliability of the disputed evidence including an adequate and proper opportunity for the applicant to challenge the evidence adduced and the observations filed by the prosecution.

In judging the fairness of the proceedings against the applicant the Court considers in the first place that although it would have been preferable if Stewart and De Brakeleer could have testified in the presence of the defence, the impossibility to do so is not due to negligence on the part of the authorities. Neither Stewart’s death nor De Brakeleer’s imprisonment is imputable to the respondent State and a serious effort was made to question De Brakeleer in a way that did justice to the rights of the defence.

Secondly, the Court observes that the defence was aware of the agreements and of the identity of Stewart and De Brakeleer and that the proceedings were conducted in such a way as to enable the trial courts as well as the defence ample opportunity to examine the agreements and credibility of Stewart and De Brakeleer. Numerous witnesses were questioned very extensively by both the trial judges and the defence at every stage of the proceedings about all important aspects of the agreements, about the interrogations and about the motives, reliability and credibility of Stewart and De Brakeleer. Also, questions of the defence were put to De Brakeleer in Morocco. The applicant was thus provided with a considerable amount of relevant information giving him ample opportunity to challenge not only the conclusion of the agreements, but also the reliability of Stewart and De Brakeleer and the credibility of their statements.

This finding is not affected by the refusal of the national courts to accede to the request to hear Public Prosecutor Witteveen, to allow questions regarding Stewart’s informer status, to commit MacDonald and to add the notes of the interrogations and Stewart’s detention record to the case file. The Court notes that the challenged decisions were taken after the arguments of both the public prosecutor and the defence had been heard in open court. In view of the well-reasoned findings of the trial courts that the information the witnesses could provide and the information laid down in the requested documents was superfluous, irrelevant or undesirable, the Court is satisfied that the lack of this information did not affect the applicant’s possibilities to challenge the credibility of Stewart and De Brakeleer in a way incompatible with Article 6 of the Convention. Neither did the fact that the defence was not provided with the documents the defence derived from other investigations.

In sum, the Court concludes that the defence was provided with a fair and effective opportunity to challenge the agreements with Stewart and De Brakeleer and the statements made by them.

Thirdly, the Court observes that throughout the proceedings against the applicant the national courts showed that they were well aware of the dangers, difficulties and pitfalls surrounding agreements with criminal witnesses. In the judgments all aspects of the agreements were extensively and carefully scrutinised, thereby duly taking into account the numerous objections raised by the defence. They thus found that the agreements with Stewart and de Brakeleer were permissible under Netherlands law and complied with the circular. The judges further displayed extreme caution in using the statements of Stewart and De Brakeleer and explicitly reasoned why they considered their statements credible in spite of the doubts raised by the defence. The fact that the national courts did not agree with the applicant on these points makes no difference in this respect.

Finally, the Court emphasises that, as the Court of Appeal and the Supreme Court pointed out, the conviction of the applicant was not based to a decisive extent on the statements of Stewart and De Brakeleer since these statements were to a large extent corroborated by other evidence. The applicant’s argument to the contrary is not supported by the case file. (Compare and contrast Rachdad v. France, no. 71846/01, § 25, 13 November 2003.)

The applicant further complained about the fact that Public Prosecutor De Groot before the Regional Court deliberately withheld information concerning the use of infiltrators. In this respect the Court recalls that the question whether a trial is in conformity with the requirements of Article 6 of the Convention must be considered on the basis of an examination of the proceedings as a whole, including the decisions of appellate courts (see Edwards v. United Kingdom, judgment of 16 December 1992, Series A no. 247-B, § 34) and that the possibility exists that a higher or the highest tribunal may, in some circumstances, make reparation for an initial violation of one of the Convention’s provisions (see De Cubber v. Belgium, judgment of 26 October 1984, Series A no. 86, § 33, De Haan v. the Netherlands judgment of 26 August 1997, Reports 1997‑IV, § 54).

The Court observes that in the Netherlands appeals in criminal cases are by way of a complete rehearing and considers that, in so far as the attitude of the public prosecutor during the trial at first instance should be considered an omission, it was cured on appeal.

Finally, with regard to the complaint that the Court of Appeal refused to order the submission of the official reports of the infiltration, the Court observes that the Court of Appeal examined the request after having heard the arguments of both the prosecution and the defence. It found that the infiltration did not yield any information and therefore considered it unnecessary to add these documents to the case file. Further observing that these documents did not relate to the evidence adduced or the observations filed by the prosecution, the Court finds that this decision did not deprive the applicant of a fair trial.

Having regard to all of the above considerations, particularly the fact that the applicant, who in the adversarial proceedings against him was assisted by a (team of) lawyer(s), and the fact that he was sufficiently able to challenge the evidence against him, whereas in addition the national courts closely scrutinised the agreements and the statements of Stewart and De Brakeleer, the Court is satisfied that the applicant enjoyed a fair trial.

It follows that the application is manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court by a majority

Declares the application inadmissible.

T.L. EarlyJ.-P. Costa
Deputy RegistrarPresident

 

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