AS TO THE ADMISSIBILITY OF
Application Nos. 17631/91 & 17632/91
by J.O. and T.T.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 September 1992, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
Mr. K. ROGGE, Secretary to the Second 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 11 October 1990
by J.O. and T.T. against the Netherlands and registered on 9 January
1991 under file Nos. 17631/91 and 17632/91;
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 applicants are an unmarried cohabiting couple, who are both
Dutch nationals, born in 1957 and 1964 respectively, and residing in
Amsterdam, the Netherlands. The applicants are unemployed. Before the
Commission the applicants are represented by G. Spong, a lawyer
practising in The Hague.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
In two separate judgments of 11 November 1987, the Regional Court
(Arrondissementsrechtbank) of Amsterdam convicted and sentenced each
of the applicants for inveiglement and trade in women for prostitution
purposes.
The Regional Court based the convictions on the statements made
by three identified victims before the police and the investigating
judge, a police report drawn up by a police officer who entered the
applicants' home during the preliminary investigation and a statement
by an anonymous person contained in a police report. The anonymous
person had informed the police that in the course of his daily visits
to a certain alley in Amsterdam he had noticed, as from
August/September 1986, an oriental looking girl sitting behind one of
the windows, that she had made a sad impression, and that according to
a friend, a blond young man had visited the girl every couple of hours.
The police subsequently confronted him with one of the victims, whom
he identified as being the girl he had seen behind the window.
On 25 October 1988 and 23 December 1988 respectively the Court
of Appeal (Gerechtshof) of Amsterdam quashed the judgments by the
Regional Court as it found, after a new examination of the facts and
evidence, that it had not been established that the applicants had
inveigled the women to follow them to the Netherlands. The Court of
Appeal subsequently convicted and sentenced the applicants for trade
in women for prostitution purposes.
The Court based this conviction on the statements by the three
victims, the police report and the statement by the anonymous informer.
The Court stated in its judgment that it had only made a cautious use
of the statement by the anonymous witness.
The applicants' subsequent appeals to the Supreme Court (Hoge
Raad) were rejected on 2 July 1990. On the applicants' complaint
concerning the use of a statement by an anonymous witness as evidence,
the Supreme Court held, inter alia, that the applicants, who were
represented by a lawyer before the Regional Court and the Court of
Appeal, had at no point in time during the proceedings against them
stated the wish that this witness be examined, that the respective
convictions were for an important part based on evidence from
identified sources and that the Court of Appeal had explicitly stated
in its judgment that it had used the anonymous declaration in a
cautious way.
COMPLAINTS
The applicants complain that the Supreme Court in its judgments
of 2 July 1990 disregarded the principle that an anonymous witness,
whose declaration is used in evidence by a court, must be heard in
person by that court in order to establish the reliability of the
witness. The applicants submit that the principle of a fair trial
implies that the defence should be able to question a witness directly,
and in case an accused does not express the wish to question such a
witness, he must be able to rely on the fact that a judge himself
verifies the reliability of witnesses. The applicants invoke Article
6 paras. 1 and 3 (d) of the Convention.
THE LAW
The applicants complain under Article 6 paras. 1 and 3 (d)
(Art. 6-1, 6-3-d) that they did not receive a fair trial in the
criminal proceedings against them, as the statement of an anonymous
witness before the police was used as evidence, whereas the courts
failed to establish the reliability of that witness as that witness was
not heard by the courts.
Article 6 paras. 1 and 3 (d) (art. 6-1, 6-3-d), insofar as
relevant, provides as follows:
"1. In the determination of (...) any criminal charge
against him, everyone is entitled to a fair and public
hearing (...) by a (...) 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."
The Commission first recalls that the admissibility of evidence
is primarily a matter for regulation by national law and that it is for
the national courts to assess the evidence before them (cf. Eur. Court
H.R., Kostovski judgment of 20 November 1989, Series A no. 166, para.
39). The Commission's task is to ascertain whether the proceedings
considered as a whole, including the way the evidence was taken, were
fair.
The Commission further recalls that, in principle, all the
evidence must be produced in the presence of the accused at a public
hearing with a view to adversarial argument. This does not mean,
however, that in order to be used as evidence statements of witnesses
should always be made at a public hearing in court: to use as evidence
such statements obtained at the pre-trial stage is not in itself
inconsistent with paragraphs 3 (d) and 1 of Article 6 (art. 6-1, 6-3-d)
of the Convention, provided the rights of the defence have been
respected.
As a rule these rights require that an accused should be given
an adequate and proper opportunity to challenge and question a witness
against him, either at the time the witness was making his statement
or at some later stage of the proceedings (cf. Kostovski judgment loc.
cit., para. 41 with further reference).
The Commission notes that the applicants have never submitted a
request to the courts dealing with their case that the anonymous
witness be examined by the courts.
The Commission, therefore, considers that under these
circumstances no issue arises under Article 6 para. 3 (d) (art. 6-3-d)
of the Convention.
As the guarantees in para. 3 of Article 6 (art. 6-3) of the
Convention are specific aspects of the rights to a fair trial set forth
in para. 1, it remains for the Commission to consider whether,
nevertheless, the applicants did not receive a fair trial within the
meaning of Article 6 para. 1 (art. 6-1) of the Convention.
The Commission observes that as a result of the applicants'
appeals a full review of the facts and evidence took place before the
Court of Appeal. The Commission notes that the applicants were
convicted on the basis of four statements by identified persons and one
statement of an anonymous person who had made a declaration before the
police.
The Commission further notes that the applicants, who were both
represented by a lawyer during the respective proceedings against them,
had the opportunity to state their case and to challenge the statement
by the anonymous informer and the other evidence against them of which
possibility the applicants chose not to avail themselves and that the
Court of Appeal explicitly stated that the statement by the anonymous
person was used in a cautious manner.
The Commission, therefore, considers that in the present
circumstances there is no indication that the applicants, in this or
any other respect, did not receive a fair hearing in the determination
of the criminal charges against them within the meaning of Article 6
para. 1 (art. 6-1) of the Convention.
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,
1. DECIDES TO JOIN THE APPLICATIONS,
2. by a majority, DECLARES THE APPLICATIONS INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy