AS TO THE ADMISSIBILITY OF
Application No. 25708/94
by R.G.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 17 January 1996, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, 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 5 September 1994
by R.G. against the Netherlands and registered on 18 November 1994
under file No. 25708/94;
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 national, born in 1954, and is currently
detained in Amsterdam. He is represented before the Commission by Ms.
T. Prakken, a lawyer practising in Amsterdam.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
a. Particular circumstances of the case
On 7 March 1988, in the context of a preliminary judicial
investigation (gerechtelijk vooronderzoek) against one or more persons
unknown, the investigating judge (rechter-commissaris) ordered the
tapping of a specific telephone number in Amsterdam. It appears that
this tapping operation ended on 26 November 1988. In the investigating
judge's procès-verbal of destruction (proces-verbaal van vernietiging)
of 21 June 1989, it is stated that the recordings and verbatim records
of this tapping operation have been respectively erased and destroyed.
The tapped telephone was located in an apartment from where the
applicant made phone calls regularly.
In the context of another preliminary judicial investigation, the
telephone line of Y. at his home in K. was tapped on, inter alia, 9 and
10 December 1989 by the Regional Criminal Investigation Team (Regionaal
Recherche Team, hereinafter referred to as "RRT").
On 9 December 1989 X. was shot and killed in an apartment in
Amsterdam. On 13 December 1989 the police officer C. stated in a
procès-verbal on the investigation of the killing that the applicant
corresponded to a description of the perpetrator given by a witness and
another suspect and could be considered as a suspect of the killing.
On 14 December 1989 the Dutch authorities issued an international
warrant for the applicant's arrest on the suspicion of having committed
the killing of X.
On 21 February 1990 the police entered a private club in an
unsuccessful attempt to arrest the applicant. By mistake the police
left a computer print out behind from which it appeared that the
applicant was suspected of murder or manslaughter. This document was
communicated to the applicant by acquaintances.
On 11 October 1990 the applicant was arrested in Spain and
subsequently detained pending his extradition to the Netherlands. On
30 August 1991 the applicant was extradited to the Netherlands where
he was placed in detention on remand on the suspicion of murder,
alternatively manslaughter. The applicant remained in detention
throughout the subsequent criminal proceedings against him.
After having been granted partial access to the applicant's case-
file on 6 June 1991, the applicant's lawyer obtained full access to the
case-file on 17 September 1991.
By summons of 13 November 1991 the applicant was ordered to
appear on 28 November 1991 before the Regional Court (Arrondissements-
rechtbank) of Amsterdam on charges of murder, alternatively
manslaughter of X. On the same date, or shortly after, the preliminary
judicial investigation against the applicant was closed.
According to a police procès-verbal dated 15 December 1991 and
drafted by police officer C., the police officers W.R. and J.K. of the
RRT had, on 14 December 1989, recognised the applicant's voice on the
recordings of the tapped conversations on Y.'s telephone.
On 28 November 1991 the Regional Court of Amsterdam adjourned its
examination. On 12 December 1991 the Regional Court resumed its
examination of the applicant's case. In view of its changed
composition, the Regional Court fully recommenced its examination. It
heard the applicant, who invoked his right to remain silent, and
adjourned the hearing of witnesses until 5 March 1992.
On 5 March 1992 the Regional Court resumed its examination and
heard the witnesses C.K. and R.C. - who invoked their right to remain
silent in order to avoid making self-incriminating statements -,
C.H.K., E.D., A.A. and T.W. With the consent of both the prosecution
and the defence the Regional Court decided not to hear the witnesses
R.P. and Y.
On 19 March 1992, following adversarial proceedings in which the
applicant was represented by a lawyer, the Regional Court convicted the
applicant of manslaughter and sentenced him to seven years'
imprisonment under deduction of the time spent in pre-trial detention.
The Regional Court rejected the complaint of the defence that it
had been unjustly restricted in the exercise of the rights of the
defence as regards its access to the applicant's case-file. The
Regional Court noted that between 4 and 17 June 1991 most of the
documents in the case-file had been communicated to the defence and
that, on 17 June 1991, the applicant had obtained full access to his
case-file.
The Regional Court also rejected the complaints on the
admissibility of the evidence originating from the tapping of Y.'s
telephone, holding that the procedure contained in the relevant
Sections of the Code of Criminal Procedure (Wetboek van Strafvordering)
had been respected. It noted that, although the actual recordings of
the tapped conversations had been lost, the verbatim record of these
conversations and the procès-verbal on the recognition of the
applicant's voice by two police officers had been added to the case-
file and that the defence had not argued that the contents of the
conversations as stated in these verbatim records were incorrect.
The Regional Court based its conviction, inter alia, on the
statements by the witnesses C.H.K., R.C., R.P., A.A., the police
officers W.R. and J.K. of the RRT and the verbatim records of two
tapped telephone conversations from Y.'s telephone on 9 December 1989
and one tapped telephone conversation of 10 December 1989 from Y.'s
telephone. The applicant filed an appeal against the Regional Court's
judgment with the Court of Appeal (Gerechtshof) of Amsterdam.
On 1 October 1992 a hearing was held before the Court of Appeal.
The defence submitted a number of requests to the Court of Appeal. They
requested, inter alia, to be allowed to verify the way the police
officers W.R. and J.K. had obtained their knowledge of the applicant's
voice. The defence further stated that they were still considering
whether or not to request the hearing of [additional] witnesses
("Overigens beraadt cliënt zich nog over eventueel op te roepen
[verdere] getuigen."). After having deliberated, the Court of Appeal
decided to request the prosecution to submit further information on the
investigation against Y., and ordered the hearing of the police
officers W.R. and J.K. on the reasons behind their knowledge of the
applicant's voice. It rejected the other requests of the defence
holding, inter alia, that several of the documents requested by the
defence were already in the applicant's case-file.
On 4 November 1992 the Court of Appeal heard the police officers
W.R. and J.K. Each of them stated that he had recognised the
applicant's voice from telephone conversations tapped by the police
between March and November 1988 in the context of an earlier criminal
investigation. This telephone tapping had been authorised by the
investigating judge. W.R. and J.K. both stated that they had listened
to many tapped conversations of the applicant and that, as regards the
tapped conversations on Y.'s telephone at issue, they had recognised
the applicant's voice and specific way of speaking.
After the hearing of the witnesses, the President of the Court
of Appeal gave an oral summary of the contents of the documents in the
applicant's case-file. Finally, the Court of Appeal heard the applicant
who denied the charges against him. The defence did not request the
hearing of additional witnesses.
On 16 November 1992, following adversarial proceedings in which
the applicant was represented by a lawyer, the Court of Appeal quashed
the judgment of 19 March 1992, convicted the applicant of manslaughter
and sentenced him to eight years' imprisonment under deduction of the
time spent in pre-trial detention.
The Court of Appeal rejected the preliminary objections in
respect of the admissibility of the prosecution made by the defence
concerning, inter alia, the alleged manipulation of documents in the
applicant's case-file, the limited access the defence had to the
applicant's case-file, the tapping of Y.'s telephone and the lawfulness
of the extradition proceedings.
The Court of Appeal based its conviction, inter alia, on the
applicant's statement before the Court of Appeal, the Court of Appeal's
own observations, statements by the witness C.K. before the police and
the investigating judge, the verbatim record of two tapped telephone
conversations of 9 December 1989 from Y.'s telephone, the verbatim
record of one tapped telephone conversation of 10 December 1989 from
Y.'s telephone, statements of the witness R.C. before the police,
statements of the witness R.P. before the police, statements of the
witness A.A. before the police and the investigating judge, the
statement of the witness Y. before the police, a police procès-verbal
containing the findings of police officer C., a police procès-verbal
on the findings of police officer H.D. of the RRT and statements by the
police officers W.R. and J.K. of the RRT before the investigating judge
and the Court of Appeal.
As regards its assessment of the evidence, the Court of Appeal
stated that it had used the tapped telephone conversations only in
combination with other means of evidence relating to the same matters.
The Court of Appeal rejected the applicant's argument that the
Dutch rules on telephone tapping are contrary to Article 8 of the
Convention and found that the relevant rules on telephone tapping had
been respected as regards both the tapping of the telephone of the
applicant in 1988 and the telephone of Y. on 9 and 10 December 1989.
It found it established that the applicant was a party to the telephone
conversations tapped on Y.'s telephone on 9 and 10 December 1989 and
that the contents of these tapped conversations were corroborated by
the other evidence before it, inter alia, the statements of the persons
with whom the applicant had spoken in these telephone conversations.
Immediately on 16 November 1992 the applicant filed an appeal in
cassation with the Supreme Court (Hoge Raad). The Court of Appeal
transmitted the applicant's case-file on 26 July 1993 to the Supreme
Court. The applicant submitted his complaints in cassation to the
Supreme Court on 12 October 1993 when the Supreme Court started its
examination of the case. The Procurator General (Procureur Generaal)
to the Supreme Court submitted his conclusions on 21 December 1993.
The Supreme Court rejected the applicant's appeal in cassation
on 8 March 1994. It rejected the applicant's complaints relating to the
defence's access to the applicant's case-file, to the use in evidence
of certain statements by witnesses and to an allegedly vague procès-
verbal of the Court of Appeal hearing on 4 November 1992 in that the
documents summarised orally by the President of the Court of Appeal had
not been specified in this procès-verbal.
As regards the applicant's complaint that the tapped
conversations of 9 and 10 December 1989 had been admitted and used in
evidence whilst the tapes on which these conversations had been
recorded had been unavailable to the defence as they had been erased,
the Supreme Court held that an impossibility to listen to actual
recordings of tapped telephone conversations in principle constitutes
an objection against the use of such a means of evidence. However,
noting that these tapes had been erroneously erased, the Supreme Court
held that the Court of Appeal, after a thorough investigation and on
the basis of other connected evidence, could reasonably find it
established that the applicant was a party to these conversations and
that the verbatim records contained a correct statement as regards the
contents of these conversations. Also taking into account that the
applicant's conviction was based for an important part on other
evidence, the Supreme Court accepted the Court of Appeal's decision to
admit and use in evidence the verbatim records of the conversations
tapped on Y.'s telephone.
The Supreme Court further rejected the applicant's complaint that
the Court of Appeal had unjustly rejected the request of the defence
to add to the applicant's case-file all relevant documents in
connection with the tapping of his telephone in 1988, in order to
verify that the police officers W.R. and J.K. had lawfully obtained
their knowledge of the applicant's voice. The Supreme Court noted that
the Court of Appeal had held on this point that several documents
concerning this telephone tap operation were already included in the
applicant's case-file, such as the prolongation decisions of the
investigating judge, a procès-verbal of destruction (proces-verbaal van
vernietiging) from which it appeared that the applicant's telephone had
been tapped between 7 March 1988 and 26 November 1988. It further noted
that the Court of Appeal had not granted the request to add more
documents in this connection to the applicant's case-file, as the
necessity for this had not been established and that this refusal, in
view of the Court of Appeal's finding as regards the voice recognition
by W.R. and J.K., would not have harmed the applicant in his defence.
The Court of Appeal had found that W.R. and J.K. had obtained knowledge
of the applicant's voice in a lawful manner and that their statements
in this regard could be admitted and used in evidence. The Supreme
Court found that the Court of Appeal had rejected these points on
correct grounds.
The applicant did not complain of the length of the proceedings
against him in the proceedings before the trial courts or in the
cassation proceedings before the Supreme Court.
b. Relevant domestic law and practice
Telephone tapping is regulated by Sections 125 f-h of the Code
of Criminal Procedure (Wetboek van Strafvordering). It may only be
utilised for the investigation of offences for which detention on
remand may be imposed, i.e. offences of a certain gravity.
Telephone tapping is only possible following a previous
authorisation by the investigating judge and can only take place in the
course of a preliminary judicial investigation. The Code of Criminal
Procedure does not limit the tapping of telephones to a certain period.
However, according to the Guidelines regarding Interception of
Telephone Conversations of 2 July 1984, which have been published, the
duration of a telephone tapping shall not exceed four weeks. The
investigating judge can prolong the duration of the tapping operation
but no longer than for a period of four weeks each time. A verbatim
record of the tapped conversations must be prepared within 48 hours.
Records without relevance must be destroyed as soon as possible.
Pursuant to Sections 433 and 439 of the Code of Criminal
Procedure appellants in cassation may submit their grounds of appeal
in cassation (middelen van cassatie) at the latest on the day of the
hearing before the Supreme Court. If the Supreme Court considers a
complaint about the length of criminal proceedings to be founded, it
may quash the appealed judgment and refer the case for retrial. It can
also provide for another appropriate form of reparation of its own
motion (cf. Eur. Court H.R., Abdoella judgment of 25 November 1992,
Series A no. 248-A, pp. 12-14, paras. 13 and 14).
COMPLAINTS
1. The applicant complains under Article 6 paras. 1 and 3 (b) of the
Convention that in the criminal proceedings against him he did not
receive a fair trial in that his conviction was based on unlawfully
obtained and incorrectly admitted and assessed evidence. i.e. tapped
telephone conversations which the applicant has not been able to listen
to, statements by police officers that they had recognised the
applicant's voice in the tapped telephone conversations, written
statements by certain witnesses which have not been signed by them and
which are in contradiction with subsequent statements these witnesses
have signed as well as incomplete procès-verbaux of the hearings before
the trial courts.
2. The applicant complains under Article 6 para. 1 of the Convention
that the criminal proceedings against him have not been determined
within a reasonable time. He complains in particular that the Court of
Appeal transmitted his case-file only on 26 July 1993 to the Supreme
Court, despite several requests by his lawyer to the Court of Appeal
to do so expeditiously.
3. The applicant finally complains that the tapping of his telephone
conversations in the course of a preliminary judicial investigation
against a person or persons unknown and against Y. is contrary to
Article 8 of the Convention in that it was not in accordance with the
law as required by the second paragraph of this provision.
THE LAW
1. The applicant complains under Article 6 paras. 1 and 3 (b)
(Art. 6-1, 6-3-b) of the Convention that in the criminal proceedings
against him he did not receive a fair trial in that his conviction was
based on unlawfully obtained and incorrectly admitted and assessed
evidence.
Article 6 (Art. 6) of the Convention, insofar as relevant,
provides:
"1. In the determination ... of any criminal charge against
him, everyone is entitled to a fair ... hearing within a
reasonable time by a ... tribunal ..."
...
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;
..."
The Commission will examine the applicant's complaints under
Article 6 paras. 1 and 3 (Art. 6-1+6-3) taken together, since the
guarantees in paragraph 3 of Article 6 represent constituent elements
of the general concept of a fair hearing set forth in paragraph 1 of
this provision (cf. Eur. Court H.R., Lala judgment of 22 September
1994, Series A no. 297-A, p. 12, para. 26).
With regard to the judicial decisions in the case, the Commission
recalls its constant case-law that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties to the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by the domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77 p. 81, at p. 88).
The Commission further recalls that the taking of evidence is
primarily governed by the rules of domestic law, and that it is in
principle for the domestic courts to apply these rules and to assess
the evidence before them. The task of the Convention organs in this
respect is to ascertain whether the proceedings in their entirety,
including the way in which the evidence was taken, were fair (cf. Eur.
Court H.R., Saïdi judgment of 20 September 1993, Series A no. 261-C,
p. 56, para. 43).
The Commission notes that the applicant was convicted following
adversarial proceedings in the course of which he was represented by
a lawyer and that he was provided with ample opportunity to challenge
the admissibility and probative value of the evidence against him, to
question the witnesses heard, to state his case and to submit whatever
he found relevant. The Commission further notes that, apart from the
police officers W.R. and J.K., the applicant did not request the Court
of Appeal to hear any witnesses. In these circumstances the Commission
finds no indication that the requirements of Article 6 paras. 1 and 3
(Art. 6-1, 6-3) of the Convention were not respected in the proceedings
at issue.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the criminal proceedings against him were not
determined within a reasonable time. He complains, in particular, of
the fact that the Court of Appeal transmitted his case-file only on 26
July 1993 to the Supreme Court, despite several requests by his lawyer
to the Court of Appeal to do so expeditiously.
The Commission notes that the applicant did not raise any
complaint relating to the length of the criminal proceedings against
him before the domestic courts dealing with his case.
The Commission recalls that, in order to exhaust domestic
remedies within the meaning of Article 26 (Art. 26) of the Convention,
an applicant must have raised before the national courts, either in
form or in substance, the complaints submitted to the Commission (cf.
No. 11425/85, Dec. 5.10.87, D.R. 53 p. 76, and No. 21132/93, Dec.
6.4.94, D.R. 77 p. 75).
The Commission notes that the applicant could have raised this
complaint at the latest on 12 October 1993, the day the Supreme Court
started its examination of the applicant's appeal in cassation. This
date is after the end of the period during which, in the applicant's
opinion, the main delay occurred, i.e. the period between 16 November
1992, when the Court of Appeal rendered its judgment, and 26 July 1993,
when the Court of Appeal transmitted the case-file to the Supreme
Court.
The Commission further notes that the Supreme Court can offer
redress for a violation of the reasonable time requirement contained
in Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court H.R.,
Abdoella judgment of 25 November 1992, Series A no. 248-A, pp. 12-14,
paras. 13 and 14).
It follows that, as regards this complaint, the applicant has not
satisfied the condition of exhaustion of domestic remedies and that
this part of the application must be rejected in accordance with
Article 27 para. 3 (Art. 27-3) of the Convention.
3. The applicant finally complains that the tapping of his telephone
for a period of eight months in 1988 in the course of a preliminary
judicial investigation against a person or persons unknown is contrary
to under Article 8 (Art. 8) of the Convention in that it was not in
accordance with the law as required by the second paragraph of this
provision.
Article 8 (Art. 8) of the Convention reads as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Commission recalls that telephone communications are covered
by the notion of "private life" and "correspondence" within the meaning
of Article 8 para. 1 (Art. 8-1) of the Convention (cf. Eur. Court H.R.,
Huvig judgment of 24 April 1990, Series A no. 176-B, p. 52, para. 25).
The Commission therefore finds that the tapping of the
applicant's telephone conversations constituted an interference by a
public authority with his right to respect for his private life and
correspondence.
The question thus arises whether this interference was justified
under paragraph 2 of Article 8 (Art. 8-2) of the Convention.
The Commission must first examine whether the tapping of the
applicant's telephone conversations was "in accordance with the law"
within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
The Commission recalls in this respect that, where the Convention
refers to domestic law, it is primarily the task of the national
authorities to apply and interpret domestic law, and that the
Convention organs have a limited jurisdiction in controlling the manner
in which this is done (cf. No. 10689/83, Dec, 14.5.84, D.R. 37 p. 225).
However, the phrase "in accordance with the law" does not merely refer
back to domestic law, but also relates to the quality of the law,
requiring it to be compatible with the rule of law (cf. Eur. Court
H.R., Olsson judgment of 24 March 1988, Series A no. 130, p. 30, para.
61).
The Commission has previously examined the Dutch regulations on
telephone tapping as contained in, inter alia, Sections 125 f-h of the
Dutch Code of Criminal Procedure, and has found that these regulations
are sufficiently precise to be considered as "law" within the meaning
of Article 8 para. 2 (Art. 8-2) of the Convention (cf. No. 21207/94,
Dec. 30.11.94, D.R. 79 p. 31 with further references). The Commission
finds no reason to take a different view in the present case.
The Commission notes that, in the present case, the Court of
Appeal found that the relevant rules on telephone tapping under Dutch
law had been respected as regards both the tapping of the telephone
conversations of the applicant in 1988 and the telephone of Y. on 9 and
10 December 1989, and that this finding was accepted by the Supreme
Court.
The Commission cannot find this ruling unreasonable or arbitrary
and finds no indication of non-observance of the relevant provisions
of the Dutch Code of Criminal Procedure. Consequently, the Commission
considers that the interference at issue was "in accordance with the
law" within the meaning of Article 8 para. 2 (Art. 8-2) of the
Convention.
The Commission further finds that the interference complained of
can reasonably be regarded as necessary in democratic society for the
legitimate aim of the prevention of crime within the meaning of Article
8 para. 2 (Art. 8-2) of the Convention.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy