T.D. v. THE NETHERLANDS



                      AS TO THE ADMISSIBILITY OF

                      Application No. 33127/96

                      by T.D.

                      against the Netherlands

     The European Commission of Human Rights (Second Chamber) sitting

in private on 14 January 1998, the following members being present:

           MM    J.-C. GEUS, President

                 M.A. NOWICKI

                 G. JÖRUNDSSON

                 A. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H. DANELIUS

           Mrs   G.H. THUNE

           MM    I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

                 E. BIELIUNAS

                 E.A. ALKEMA

                 A. ARABADJIEV

           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 10 September 1996

by T.D. against the Netherlands and registered on 24 September 1996

under file No. 33127/96;

     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 1946, and is currently

serving a prison sentence in Maastricht. Before the Commission, he is

represented by Ms I.N. Weski, a lawyer practising in Rotterdam.

a.   Particular circumstances of the present case

     On 14 February 1992, the applicant was arrested and detained on

suspicion of having committed offences under the Opium Act (Opiumwet),

i.e. production and trafficking of amphetamines ("XTC").

     Following hearings held on 20 May, 10 August and on 3, 4, 5 and

6 November 1992, the Regional Court (Arrondissementsrechtbank) of

Amsterdam, by judgment of 20 November 1992, convicted the applicant of

participation in a criminal organisation and a number of offences under

the Opium Act and sentenced him to ten years' imprisonment.

     In the subsequent proceedings on appeal before the Court of

Appeal (Gerechtshof) of Amsterdam, hearings were held on 13 May,

10 June, 6, 7 and 9 September, 24 November, 1, 8 and 10 December 1993,

1, 11 and 21 February 1994, 21 April and 25 and 27 May 1994. The

witnesses heard before the Court of Appeal included the police officer

and general Interregional Criminal Investigation Team (Interregionaal

Recherche Team, hereinafter referred to as "IRT") leader Mr Van Baarle,

the PTT employees Mr J. and Mr S., the police officer Van den Berg, the

chief public prosecutor of Amsterdam Mr Vrakkink, the chief

commissioner of the Amsterdam police Mr Nordholt, the executive IRT

team leader Mr Lith, and the public prosecutor at the Amsterdam

Regional Court Mr Wortel. Although the proceedings remained formally

separated, the hearings in the applicant's case were held

simultaneously with the hearings in the cases of seven co-accused.

     When on 1 February 1994 the Court of Appeal took evidence from

the witness Wortel, one of the three public prosecutors involved in the

investigation against the applicant, Mr Wortel confirmed that the

criminal investigation against the applicant had started on the basis

of information provided by the Criminal Intelligence Service (Criminele

Inlichtingen Dienst, hereinafter referred to as "CID") and that thus

use had been made of informers not being police officers. He refused,

however, to answer the question put by the defence whether after the

start of the criminal investigation against the applicant further use

had been made of such informers. He further stated that he preferred

not to answer questions giving an insight in crime detecting working

methods.

     The defence objected to the witness' refusal to answer this

question. Having deliberated, the Court of Appeal accepted Mr Wortel's

refusal, holding:

     "...the witness Wortel does not have to answer the precited

     questions, as does not see that answering these

     questions can add anything to any decision to be taken by the

     court in this case, to which moreover it considers:

     - as to the question whether after the start of the investigation

     use has been made of informers, not answering this question can

     be considered as justified from the point of view of protection

     of investigation interests as the methods used by the police in

     detecting punishable acts which have probably been committed do

     not have to be made public without due reasons."

     By judgment of 9 June 1994, the Court of Appeal quashed the

judgment of 20 November 1992, convicted the applicant of participation

in a criminal organisation and various offences under the Opium Act and

sentenced him to ten years' imprisonment with deduction of the time

spent in pre-trial detention. It further ordered the confiscation of

a large number of items and assets. It declared the request of the

prosecution also to deprive the applicant of any unlawfully obtained

proceeds inadmissible on formal grounds.

     In the determination of its sentence, the Court of Appeal stated

that the duration of the criminal proceedings against the applicant

constituted a mitigating factor, although the extensive investigation

before the Court of Appeal had mainly been caused by requests of the

defence.

     Insofar as the defence had argued that the prosecution should be

declared inadmissible, the Court of Appeal held that the placement of

a printer on a telephone line in order to obtain information as to

which numbers were dialled, the time and duration of any connections

established via that telephone line and, upon request, the transmission

of this information, which did not concern the contents of any

telephone conversations, to the public prosecutor was provided for by

Article 125f of the Code of Criminal Procedure (Wetboek van

Strafvordering, hereinafter referred to as "CCP"). The Court of Appeal

accepted that requests by the prosecution to be provided with

information obtained by the use of such printers constituted an

interference with the personal sphere, but held that it could be

regarded as foreseen in the law and necessary in a democratic society

for the prevention of crime.

     The Court of Appeal further held that in any event a judicial

control over the activities of the prosecution should remain possible.

It considered that, therefore, the position taken by the public

prosecutor at the Regional Court, to the effect that the Note of

2 September 1991 of police officer Van den Berg, in which the latter

requested the use of the powers under Article 125f CCP, and the

prosecutor's decision of 4 September 1991 on this request, should not

be included in the case-file, was incomprehensible and unlawful. The

Court of Appeal noted, however, that at the order of the Regional Court

these documents had been added to the applicant's case-file.

     The Court of Appeal considered it established on the basis of the

formal report (proces-verbaal) of police officer Van den Berg and his

testimony before the Regional Court and the Court of Appeal, that the

data obtained through the printers had been destroyed at the order of

the public prosecutor. In view of judicial control that was required,

the Court of Appeal considered the decision to destroy these data

incomprehensible and unlawful.

     It found that this destruction had infringed the rights of the

defence, but that this infringement was of such a limited nature that

it could not lead to the consequences suggested by the defence. It held

on this point:

     "The court considers it to have been made plausible, in the

     absence of any elements for finding that the statements of      police officer who wrote the formal reports> Van den Berg should

     be or could be put in doubt, that in the present investigation

     the printer has been attached exclusively on grounds of

     efficiency to only two telephone connections, only in order to

     verify whether in fact use was made of these telephone lines,

     that already shortly after the placement of these printers it has

     been decided to continue the investigation only in respect of one

     of those telephone lines by requesting the investigating judge

     to authorise the tapping of telephone conversations on this one

     line, and that the data from the printers do not in any event

     contain any information relevant for the investigation. In this

     connection the court further remarks that ... it has not been

     made plausible in any way that in this case telephone

     conversations have been tapped without the required authorisation

     from the investigating judge."

     As to the alleged unlawful start of the investigation regarding

the applicant, the Court of Appeal found it established, on the basis

of evidence obtained in the proceedings at issue, that the IRT had been

informed on 23 August 1991 by the CID that the applicant and one other

identified person, Mr R.E., were involved in the production of and

trafficking in XTC and/or amphetamines. According to the witness Lith,

the executive IRT team leader, this information had come from a

reliable source. Further information from other sources had

subsequently been received. On 2 September 1991, police officer Van den

Berg had requested the public prosecutor to connect a printer to the

two telephone lines used by R.E. This request had been granted on the

same day. As from 5 September 1991, observations had taken place and,

on 10 September 1991, a request to commence a preliminary judicial

investigation had been made which had been granted by the investigating

judge the same day. In the course of this investigation telephone

conversations had been tapped.

     Insofar as the defence argued that the above course of action had

not in fact taken place in that way, the Court of Appeal found that

this argument was based on an incorrect reading of the investigating

judge's formal report on the hearing of the witness Lith. As to the

argument advanced by the defence that the start of the investigation

had been unlawful in that the information received on 2 September 1991

had been insufficient to warrant placing a printer on two telephone

lines, the Court of Appeal found that the public prosecutor had not

been wrong when deciding to authorise the placement of the printers.

In this respect the Court had regard, on the one hand, to the nature

and intrusive character of this method of investigation in connection

with the information obtained which could justify the suspicion that

serious offences were being or could be committed and, on the other

hand, the requirements of proportionality and subsidiarity.

     The Court further held that the rights of the defence did not

include a right to obtain more information about the background of the

initial CID information than the information which had been provided

by the witness Lith. The Court considered that no facts or

circumstances had been submitted by the defence which would justify a

finding that the CID information had been obtained unlawfully. The

defence had further not in any other way corroborated this contention.

     As to the allegation of the defence that the investigating judge

had been misled in respect of the request for authorisation of the

tapping of telephone conversations, the Court of Appeal considered that

this was not supported by the facts. As to the allegation that

telephone conversations had been tapped without authorisation of the

investigating judge, the Court of Appeal concluded that this was also

not supported by the facts. It considered that in relation to this

allegation several witnesses had been heard before the Regional Court

as  well as before the Court of Appeal. Only one of these witnesses had

given evidence - of a hearsay nature - that unauthorised tapping had

occurred. However, this statement was not in the least supported by the

other testimonies. On the basis of the evidence before it, the Court

of Appeal further concluded, in particular as regards conversations

tapped on telephone number 01807-5****, that it had not been made

plausible that telephone conversations had been tapped without the

required authorisation of the investigating judge, that the connection

between that telephone number and a particular address would have been

known to the IRT prior to 22 January 1992, or that this address had

been identified unlawfully. It further rejected the defence's argument

that the search carried out at this address had been unlawful.

     The Court of Appeal further rejected a request by the defence,

in which it relied on Article 6 of the Convention, to add to the case-

file the unpublished part of the Report of the Wierenga Commission,

which had carried out an investigation following the disbandment of the

IRT. It held on this point that the necessity for granting this request

had not appeared.

     In this respect it stated, inter alia:

     "Together with counsel the Court considers that the finding of

     the truth is the primary purpose in a trial concerning the

     determination of a criminal charge, and that this point of

     departure, which may be labelled inquisitorial, should be

     maintained. To this extent it can thus not be said that such

     proceedings are of an accusatory character. The Court agrees ...

     with counsel's opinion that only adversarial proceedings, in

     which the direct evidence rule, interpreted reasonably, is

     respected, enhance the chance of finding the truth.

     Noting the above point of departure the Court does not subscribe

     to the opinion, as expressed by the procurator-general, that in

     cases where it is argued, for instance, that irregularities have

     occurred during the investigation, it is up to the defence to

     substantiate this claim.

     Depending on the circumstances of the case it must be determined

     what may be asked from the defence in this respect. In any event,

     it is generally for the defence to submit facts and circumstances

     which in its opinion put the lawfulness of the investigation in

     doubt and it cannot confine itself merely to submitting that such

     lawfulness should or may be in doubt. In addition, the purpose

     of the investigation at the trial is not, at least not in the

     first place, to fill in lacunae in respect of the possibilities

     to verify the course of events during the pre-trial investigation

     by hearing witnesses or adding further elements to the case-file.

     The general, and, in the eyes of the Court, realistic point of

     departure is that the case-file submitted to the judge contains

     sufficient elements on the basis of which it can be assessed

     whether the investigation has taken place in compliance with the

     relevant rules of law. The Court notes in this respect ... that

     it is the explicit task of the judge to form his own opinion as

     to the question whether the investigation has taken place in the

     said manner.

     In certain circumstances it must be accepted that no more can be

     asked of the defence than that it give an indication in general

     terms of, in its opinion, possible shortcomings in the pre-trial

     investigation, and that it is for the prosecution or the

     investigating authorities to elaborate on those facts and

     circumstances which render a well-balanced judicial opinion

     possible. This may occur, for instance, where the use and

     permissibility of certain investigation methods are concerned -

     i.e. subjects which the procurator-general has classified as

     belonging to the "grey area". In this connection the Court

     considers in the first place that it is finally and exclusively

     for the judge to decide, with due regard to the law and thus the

     relevant statutory rules and case-law, whether or not applicable

     limits have been respected, and in the second place and connected

     to the foregoing, whether or not the prosecution and the

     investigating authorities were at liberty to withhold, by

     invoking the interests of the investigation, information from the

     judge which, given the task that he must carry out, should be

     known to him. As an aside the Court would note that it does not

     follow from the above that it is also required that facts which

     are irrelevant for the examination of the case concerned should

     be disclosed; moreover, in certain circumstances it should be

     possible, but for a judge to determine, that whilst sufficient

     information is being provided, the justified interests of

     investigation and prosecution are taken into account at the same

     time. In this respect the Court finally considers in the first

     place and on the one hand, ... that it is normal for a certain

     selection to take place when a case-file is being compiled and

     when, especially at first sight, some of the information

     contained therein may be deemed irrelevant, and that, therefore,

     the mere fact that at the trial additions and clarifications are

     found to be required cannot lead to the conclusion that

     irregularities have taken place; and in the second place and on

     the other hand, that the deliberate withholding of relevant

     information or the failure to provide such information when

     subsequently requested cannot remain without consequence for the

     assessment of the questions at issue in the trial.

     As regards the case at issue, the Court has, as a result of

     public information about the disbandment of the IRT, investigated

     in the course of various trials, by hearing a number of

     witnesses, the question whether there were reasons to doubt the

     lawfulness of the pre-trial investigation.

     The Court has further taken note of the published Report of the

     above-mentioned Wierenga Commission and the various widely

     publicised articles and comments concerning the IRT. The Court

     considers that this information is in the public domain and of

     common knowledge.

     The Court finds it established that no facts or circumstances

     have been made plausible which would justify the conclusion that

     the unpublished part of the Report of the Wierenga Commission

     contains information concerning the investigation in the present

     case, and neither can this be assumed in any other way. This

     follows in the first place from the statements made by the

     witnesses at the trial. It also follows from the published part

     of the Report seen against the background of various press

     reports. The Court deduces from these elements that the pre-trial

     investigation or investigations by IRT teams under the direction

     of public prosecutors and police officers, in respect of which

     an inquiry has been held, did not concern the pre-trial

     investigation in the present case. This finding is also supported

     by the established fact that the charges in the present case

     concerned - production and export of  - the substances MDA and/or

     MDMA (XTC), whereas it appears clearly from the said Report and

     publications that they are concerned with - import of - the

     substances hashish and/or cocaine. Moreover, as regards the

     specific points concerning the (un)lawfulness of the pre-trial

     investigation indicated by counsel in the present case, the Court

     has carried out a further investigation and according to its

     findings stated above has each time reached the conclusion in

     respect of those points that there was no unlawfulness or,

     insofar as there was a certain flaw, that this flaw could be

     considered as limited in character and not to have any connection

     with the use of unlawful methods of investigation.

     Apart from the said points, counsel has not referred to other

     aspects, in any way specified, as regards the pre-trial

     investigation which would require the Court to carry out a

     further investigation.

     Although the Court is aware that absolute certainty in this

     matter can never be obtained, and therefore also not in the

     present case, and although it finds that it should be considered

     unacceptable, in view of the consideration mentioned above that

     in a trial the finding of the truth is the primary aim, if

     information known to the prosecution and the police authorities

     is withheld from a judge, whereas the nature of this information

     is such that, if he would have been aware of it, the judge could

     or should reach a different finding, the Court finds on the basis

     of the above considerations that there is sufficient ground for

     its finding reached above that for a sound decision in this case

     it does not find it necessary to add the unpublished part of the

     Report of the Wierenga Commission [to the case-file]."

     The Court of Appeal based the applicant's conviction on, inter

alia, formal police reports on observations, statements made by various

persons before the police, forensic evidence and the contents of

forty-two telephone conversations tapped between 7 October 1991 and

6 February 1992 with authorisation by the investigating judge.

     The applicant's appeal in cassation was rejected by the Supreme

Court (Hoge Raad) on 12 March 1996. Insofar as the applicant's

complaints could be examined in proceedings in cassation, which are

limited to points of law, the Supreme Court accepted the findings of

the Court of Appeal and found that the reasons stated by the Court of

Appeal were sufficient.

     Insofar as the applicant complained of the Court of Appeal's

decision that the witness Wortel did not have to answer the question

whether after the investigation regarding the applicant had started

further use was made of informers as it had not appeared that a reply

to this question could contribute anything to the decision to be taken

by the Court of Appeal in the proceedings against the applicant, the

Supreme Court stated:

     "The reasons stated by the Court of Appeal as to why it availed

     itself of its powers under Article 288 CCP in conjunction with

     Article 415 CCP, contain its finding that the general interest

     of an effective investigation and the importance of protecting

     informers against possible disclosure of their identity which in

     the present case is connected with that general interest outweigh

     the interest of the suspect in obtaining an answer to this

     question.

     This finding does not constitute an incorrect legal finding, in

     particular not as regards Article 288 CCP and Article 6 of the

     Convention. Furthermore, no additional reasons are required in

     order to comprehend this finding, in view of the fact that it

     does not appear that the defence has indicated that and why the

     answer to this question was relevant for any decision to be taken

     by the Court of Appeal."

b.   Relevant domestic law

     Article 125f CCP, insofar as relevant, provides as follows:

     "In case of flagrante delicto or of a crime which allows for

     detention on remand, anyone working in a telephone agency shall

     provide the public prosecutor or, during a preliminary judicial

     investigation, the investigating judge at his demand with the

     required information concerning all communications effected

     through this agency where there is a suspicion that the suspect

     has participated in these communications."

     Article 125g CCP reads as follows:

     "During the preliminary judicial investigation the investigating

     judge may, if the investigation urgently so requires and if it

     concerns a crime which allows for detention on remand, authorise

     the investigating official to tap or record telephone

     conversations where there is a suspicion that the suspect has

     participated in them. A formal report of the tapping or recording

     shall be drawn up within forty-eight hours."

     Article 125h CCP provides:

     "1.   The investigating judge shall have destroyed, in his own

     presence, formal reports and other items from which data can be

     derived which have been obtained as a result of the information,

     referred to in Article 125f, or by means of tapping or recording,

     within the meaning of the preceding Article (125g), and which are

     not relevant to the investigation. A formal report of the

     destruction shall immediately be drawn up.

     2.    The investigating judge shall likewise have destroyed

     immediately formal reports and other items referred to in the

     preceding paragraph, insofar as they concern statements made by

     or to a person who, on the basis of Article 218 (CCP), could

     refuse to testify if he would be asked as a witness about the

     contents of those statements.

     3.    The investigating judge shall include further formal

     reports and other items referred to in the first paragraph in the

     case-file at the latest when the decision to close the

     preliminary judicial investigation becomes irrevocable.

     4.    The public prosecutor shall have destroyed, in his own

     presence, formal reports and other items from which data can be

     derived which have been obtained as a result of the information

     referred to in Article 125f, if he has not demanded a preliminary

     judicial investigation within a month after obtaining that

     information. He shall draw up a formal report of the

     destruction."

c.   General background

     On 26 January 1994, the Minister of Justice (Minister van

Justitie) and the Minister of the Interior (Minister van Binnenlandse

Zaken) informed the Lower House of Parliament (Tweede Kamer der Staten-

Generaal) of the disbandment in December 1993 of the IRT Noord-

Holland/Utrecht. The task of the IRT, which had been established in

December 1988, was to combat serious organised crime through concerted

activities of different regional police forces.

     The methods of criminal investigation applied by the IRT gave

rise to serious criticism, in particular in respect of certain

practices where, for instance, considerable sums of money were paid to

informers, where important narcotics transactions were allowed to

proceed under IRT observation - which entailed these narcotics reaching

the market -, and where use was made of infiltrators and so-called

"peeping-Tom" operations ("inkijkoperaties"). The use of the so-called

"Delta method" was one of the reasons which led to the disbandment of

the IRT Noord-Holland/Utrecht.

     This Delta method consisted of using informers, under the

direction of the police and the prosecution department, who provided

criminal organisations with facilities. These informers were used by

the police in order to gather information as to the functioning of the

criminal organisation. These informers, including persons working in

the transport industry, had in one way or another contacts with members

of criminal organisations. These informers would inform the police of

the expected arrival of a container in which drugs were concealed. The

police would make sure that this container would not be checked by the

customs authorities and would ensure proper importation papers and

clearance of the container. The police would proceed to check the

contents and weigh the drugs found. These drugs would then be

transported by the informer to the location indicated by the criminal

organisation. Such drugs could then either be seized by the police or

deliberately left unhindered in order to protect the informer or to

allow an increase in the latter's prestige in the criminal organisation

or the trust placed in him. In the latter case the drugs were enabled

to reach the market. In some cases the police lost track of the drugs

as not all deliveries could be placed under observation. The informers

were paid for their activities by the criminal organisations and did

not have to surrender this income to the police. The aim of the Delta

method was to gain an insight into the distribution network and the

persons in charge of a criminal organisation.

     On 31 January 1994, upon request of the Lower House, the

Ministers of Justice and the Interior requested an extraordinary

commission of inquiry (bijzondere onderzoekscommissie) under the

presidency of H. Wierenga, a former Member of Parliament, to:

-    conduct an independent inquiry into the creation, functioning and

     disbandment of the IRT;

-    determine and assess the grounds on which the decision to disband

     had been based and the way in which this decision had been

     implemented; and

-    formulate conclusions and recommendations.

     The Report of the Wierenga Commission was presented to the

Ministers of Justice and the Interior on 24 March 1994. In its public

report, it concluded:

     "As regards the working methods of the IRT, the Commission has

     determined that these have been applied in a well-considered and

     careful manner and not unlawfully. The Commission further finds

     that the application fell within the scope of the directives

     determined within the framework of the Public Prosecutions

     Department. As to the application of the methods like the present

     one, both in general and in concrete cases, differences of

     opinion remain possible. The decision lies with the Public

     Prosecutions Department. The Minister of Justice must be able to

     carry the political responsibility for that decision. The

     Commission, however, is of the opinion that, noting the aim of

     the present inquiry, the application of the methods was sound."

     The Report contained a number of classified annexes, consisting

of a cover letter, parts of formal reports (processen-verbaal) of

hearings of 27 persons and two formal reports on findings (processen-

verbaal van bevindingen) of the hearings of a public prosecutor and a

chief of police.

     The Wierenga Commission recommended the Ministers not to publish

these annexes in order to prevent damaging the interests of third

persons. This recommendation was accepted by the Prime Minister, the

Minister of Justice and the Minister of the Interior and they also

undertook to keep certain statements secret where certain persons heard

had been promised that their statements would remain classified. Only

the Ministers concerned and the Parliamentary Standing Committee on

Intelligence and Security Services (Vaste Commissie voor de

inlichtingen- en veiligheidsdiensten uit de Tweede Kamer) were provided

with this part of the Report of the Wierenga Commission.

     The subsequent parliamentary debate on 7 April 1994 in the Lower

House resulted in the opening of a parliamentary inquiry (parlementaire

enquête) into the methods of criminal investigation used in the

Netherlands. The appointed parliamentary commission of inquiry

(parlementaire enquêtecommissie) was given the task to inquire into:

-    the nature, seriousness and scope of the serious organised crime;

-    the factual application, the lawfulness, the amount of

     consideration given to, and the effectiveness of the methods of

     criminal investigation; and

-    the organisation, the functioning of and the supervision over the

     criminal investigation.

     The parliamentary commission of inquiry presented its final

report containing its findings and recommendations on 1 February 1996.

In the opening remarks of this report, the President of the commission

stated that in the report certain changes in the structure of the

investigation authorities were recommended, as it had been found that

the prosecution department did not always have sufficient authority

over the police. In his words, the police should be made aware that in

a democratic legal order it could not operate outside the authority and

direction of the prosecution department and public administration, and

that the gap, large at times, between distant persons in positions of

authority and the day to day reality of crime fighting should be

bridged.

COMPLAINTS

1.   The applicant complains that the connection of printers to the

telephone lines at issue is contrary to Article 8 of the Convention.

2.   The applicant complains under Article 6 paras. 1 and 3 of the

Convention that he did not receive a fair trial in that it was not

possible for him to verify the print-outs as regards the telephone

lines to which a printer had been connected.

3.   The applicant further complains under Article 6 paras. 1 and 3

of the Convention that he was unable to investigate the origins of the

information held by the police and to verify whether the investigation

methods used by the police in gathering this information were in

conformity with the requirements of Article 6 of the Convention. He

submits that it is within the realm and the duty of the prosecution to

disclose fully all police proceedings leading to the origin of the

charges against him.

4.   The applicant also complains under Article 6 of the Convention

of the rejection of his request to add to his case-file the contents

of the unpublished part of the Report of the Wierenga Commission which

could have shed light on the investigation conducted prior to the

official judicial investigation.

5.   The applicant finally complains under Article 6 paras. 1 and 3

of the Convention that the Court of Appeal allowed the witness Wortel

not to answer questions put by the defence as to the possible use by

the police of informers after the start of the criminal investigation

against him.

THE LAW

1.   The applicant complains that the connection of printers to the

telephone lines at issue is contrary to Article 8 (Art. 8) of the

Convention.

     Article 8 (Art. 8) of the Convention, insofar as relevant, reads:

     "1.   Everyone has the right to respect for his private ... life

     ... 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 ... for the

     prevention of ... crime..."

     The Commission recalls that communication by telephone falls

within the concepts of "private life" and "correspondence" within the

meaning of Article 8 para. 1 (Art. 8-1) of the Convention (cf. Eur

Court HR, Kruslin and Huvig v. France judgments of 24 April 1990,

Series A no. 176-A and 176-B, p. 20, para. 26 and p. 52, para. 25

respectively; and Halford v. United Kingdom judgment of 25 June 1997,

Reports 1997-III, no. 39, para. 44). The surveillance by criminal

investigation authorities of communications by telephone, either by

tapping and recording telephone conversations or by registering other

data in this area by the use of surveillance devices, does therefore

constitute an interference by a public authority with the exercise of

a right guaranteed under Article 8 para. 1 (Art. 8-1) of the

Convention.

     The question therefore arises whether this interference was

justified under Article 8 para. 2 (Art. 8-2) of the Convention.

     As to the question whether the placement of the printer on the

telephone lines at issue was "in accordance with the law", the

Commission has previously examined the Dutch rules on secret

surveillance of communications by telephone as contained in, inter

alia, Articles 125f-h of the Netherlands Code of Criminal Procedure and

found that these rules are sufficiently precise to be considered as

"law" within the meaning of Article 8 para. 2 (Art. 8-2) of the

Convention (cf. No. 21207/93, Dec. 30.11.94, D.R. 79, p. 31).

     The Commission notes that, in the present case, the domestic

courts found that the use of the printers was in conformity with

Article 125f of the Code of Criminal Procedure. The Commission finds

no reason to take a different view.

     The Commission further considers that, in the present case, the

use of printers in the course of a preliminary investigation into

suspected large scale narcotics offences can reasonably be considered

as being necessary in a democratic society for the prevention of crime

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

     It follows that this complaint must be rejected for being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2.   The applicant complains under Article 6 paras. 1 and 3

(Art. 6-1, 6-3) of the Convention that he did not receive a fair trial

in that it was not possible for him to verify the print-outs of the

telephones lines to which a printer had been connected, in that he

could not verify the origins of the information held by the police

which had led to the investigation against him and whether this

information had been obtained by lawful means, in that the Court of

Appeal rejected his request to add the unpublished part of the Wierenga

report to his case-file and in that the Court of Appeal allowed the

witness Wortel not to answer a specific question, i.e. whether after

the start of the criminal investigation against the applicant further

use had been made of police informers.

     Article 6 (Art. 6) of the Convention, insofar as relevant, reads:

     "1.   In the determination of ... any criminal charge against

     him, everyone is entitled to a fair .. hearing ... by a ...

     tribunal established by law.  ...

     2.    ...

     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;

     ..."

     The Commission recalls that the guarantees of paragraph 3 of

Article 6 (Art. 6) of the Convention are specific aspects of the

general right to a fair trial contained in Article 6 para. 1

(Art. 6-1) of the Convention (cf. No. 25062/94, Dec. 18.10.95, D.R. 83,

p. 77). The Commission will therefore examine this part of the

application under Article 6 paras. 1 and 3 (Art. 6-1+6-3) taken

together.

     The Commission further recalls that questions concerning the

admissibility of evidence is primarily a matter for regulation by

national law and as a general rule it is for the national courts to

assess the evidence before them. The task of the Convention organs

under the Convention is not to give a ruling as to whether evidence was

properly admitted, but rather to ascertain whether the proceedings as

a whole, including the way evidence was taken, were fair (cf. Eur.

Court, Doorson v. the Netherlands judgment of 26 March 1996, Reports

1996-II, no. 6, p. 470, para. 67).

     The Convention does not preclude reliance, at the investigation

stage, on sources such as anonymous informants. The subsequent use of

information provided by such sources by a trial court to found a

conviction may, however, raise issues under the Convention (cf. Eur.

Court HR, Windisch v. Austria judgment of 27 September 1990, Series A

no. 186, p. 11, para. 30).

     As to the origins of the information which led to the police

investigation against the applicant, the Court of Appeal found that it

had not been made plausible that this information had been unlawfully

obtained and that, given the nature of this information, the public

prosecutor had not been wrong in ordering the connection of printers

to the two telephone lines at issue.

     Noting that the applicant's conviction was not based on any

initial information communicated to the police prior to the start of

the police investigation against the applicant, but on other evidence

obtained in the course of the police and judicial investigation and

that the evidence thus obtained was subsequently examined in the course

of adversarial proceedings before the trial courts, whereas in these

proceedings the trial court did in fact examine the question whether

unlawful investigation methods had been used in obtaining this initial

information, the Commission cannot find that, in this respect, the

proceedings against the applicant fell short of the requirements of

Article 6 (Art. 6) of the Convention.

     Insofar as the applicant complains that he was unable to verify

the data collected by the printers connected at the order of the public

prosecutor, the Commission notes that the Court of Appeal held that

these data only disclosed whether or not use had been made of the

telephone lines at issue and had not served any other purpose useful

for the investigation, although it acknowledged that the decision of

the public prosecutor to destroy these data had been unlawful and had

infringed the rights of the defence to a limited extent.

     Noting the limited scope of the information which can be obtained

through the use of such printers and considering that the applicant's

conviction was not at all based on the data obtained by the use of the

printers at issue, but rather, inter alia, on the contents of tapped

telephone conversations whereas these conversations and the other

evidence were subsequently examined in the course of adversarial

proceedings before the trial courts, the Commission does not find that

the fact that the applicant could not verify the data obtained by the

printers deprived him of a fair trial within the meaning of Article 6

(Art. 6) of the Convention.

     As regards the applicant's complaint that the Court of Appeal

rejected his request to add the unpublished part of the Wierenga Report

to his case-file, the Commission notes that the Court of Appeal found

no indication that the unpublished part of this Report contained

information as regards the investigation conducted by the police in the

applicant's case. This factual finding cannot be reviewed by the

Commission under the terms of Article 19 (Art. 19) of the Convention.

     Noting that the Wierenga Report concerned an official inquiry

into the creation, functioning and disbandment of the IRT in general

and further noting that, in the adversarial proceedings in the present

case, the Court of Appeal did examine the lawfulness of the methods by

which evidence against the applicant had been obtained and the evidence

itself, the Commission cannot find that the refusal of the Court of

Appeal to add the unpublished part of the Wierenga Report to the

applicant's case-file deprived him of a fair hearing within the meaning

of Article 6 (Art. 6) of the Convention.

     The applicant finally complains under Article 6 (Art. 6) of the

Convention that the Court of Appeal allowed the witness Wortel not to

answer the question put by the defence whether or not further use of

informers had been made following the opening of the criminal

investigation against the applicant.

     On this point, the Commission recalls that, as a general rule,

it is for the national courts to assess the evidence before them as

well as the relevance of the evidence which the defence seeks to

adduce. More specifically, Article 6 para. 3(d) (Art. 6-3-d) of the

Convention leaves it to them, again as a general rule, to assess

whether it is appropriate to call witnesses. It does not require the

attendance and examination of every witness on the accused's behalf

(cf. Eur. Court HR, Vidal v. Belgium judgment of 22 April 1992, Series

A no. 235-B, p. 32, para. 33).

     The Commission further recalls that it follows from the national

courts' margin of appreciation in assessing the relevance of the

evidence which the defence seeks to adduce that they also have a margin

of appreciation in controlling the accused's questioning of such

witnesses as are called (cf. No. 30059/96, Dec. 26.2.97, unpublished).

     The Commission finds no indication in the case-file that the

evidence before the Court of Appeal included any information obtained

by the investigation authorities from informers after the start of the

criminal investigation against the applicant. Consequently, the Court

of Appeal did not have to address any questions related to such

informers in the applicant's case.

     In these circumstances, the Commission cannot find that the

decision of the Court of Appeal allowing Mr Wortel not to answer the

question at issue was unreasonable or arbitrary or otherwise contrary

to the applicant's defence rights under Article 6 paras. 1 and 3

(Art. 6-1, 6-3) of the Convention.

     It follows that this part of the application must also be

rejected as 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.

    M.-T. SCHOEPFER                                J.-C. GEUS

       Secretary                                    President

to the Second Chamber                        of the Second Chamber

 

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