VAN MECHELEN, VENERIUS AND PRUIJMBOOM v. THE NETHERLANDS



                      AS TO THE ADMISSIBILITY OF

     1. Application No. 21363/93       2. Application No. 21364/93

     by Hendrik VAN MECHELEN           by Willem VENERIUS

     against the Netherlands           against the Netherlands

     3. Application No. 21427/93       4. Application No. 22056/93

     by Johan VENERIUS                 by Antonius Amandus PRUIJMBOOM

     against the Netherlands           against the Netherlands

     The European Commission of Human Rights sitting in private on

15 May 1995, the following members being present:

           MM.   C.A. NØRGAARD, President

                 H. DANELIUS

                 C.L. ROZAKIS

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 S. TRECHSEL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 E. KONSTANTINOV

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

           Mr.   H.C. KRÜGER, Secretary to the Commission

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 27 November 1992

by Hendrik VAN MECHELEN against the Netherlands and registered on

10 February 1993 under file No. 21363/93;

     Having regard to the application introduced on 27 November 1992

by Willem VENERIUS against the Netherlands and registered on

10 February 1993 under file No. 21364/93;

     Having regard to the application introduced on 8 December 1992

by Johan VENERIUS against the Netherlands and registered on

25 February 1993 under file No. 21427/93;

     Having regard to the application introduced on 24 November 1992

by Antonius Amandus PRUIJMBOOM against the Netherlands and registered

on 14 June 1993 under file No. 22056/93;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     1 July 1994 and the observations in reply submitted by the first,

     the second and the third applicant on 26 September 1994 and by

     the fourth applicant on 30 September 1994;

     Having deliberated;

     Decides as follows:

THE FACTS

     The first applicant is a Dutch citizen, born in 1960, and

detained in 's-Hertogenbosch. The second applicant is a Dutch citizen,

born in 1961, and detained in Grave. Before the Commission the first

and second applicants are represented by T.N.B.M. Spronken, a lawyer

practising in Maastricht.

     The third applicant is a Dutch citizen, born in 1962, and

detained in Rotterdam. Before the Commission he is represented by J.M.

Sjöcrona, a lawyer practising in The Hague.

     The fourth applicant is a Dutch citizen, born in 1964, and

detained in Veenhuizen. Before the Commission he is represented by

G.G.J. Knoops, a lawyer practising in 's-Hertogenbosch.

     The facts of the case, as submitted by the parties, may be

summarised as follows.

     In the course of the investigation of a series of bank robberies

in the province of Noord-Brabant, the police received information about

a group of five persons, amongst whom the applicants, which seemed to

be involved in the robberies and which operated from two mobile home

sites, where three of the four applicants lived. The police decided,

apparently in the beginning of November 1988, to place these two mobile

home sites under observation by a special team.

     On 27 January 1989, three or four men robbed the Post Office in

Oirschot and stole an amount of some 87.000 Dutch guilders. While being

pursued by the police, the perpetrators fired several times at

policemen and passers-by, deploying inter alia an automatic gun. At one

point they ambushed the police, wounded several policemen, and got

away.

     The applicants were arrested in January and February 1989. They

were charged in March 1989 with the robbery of 27 January 1989 and a

similar robbery in October 1988. They were also charged with multiple

attempts of murder or manslaughter during the pursuit after the robbery

in Oirschot. The applicants have always denied all charges.

     The Regional Court (Arrondissementsrechtbank) of 's-Hertogenbosch

convicted the applicants of multiple attempts of manslaughter and

aggravated theft by judgments of 12 May 1989, 3 August 1989 and

9 October 1989, while acquitting them of the 1988 bank robbery. Each

of the applicants was sentenced to 10 years' imprisonment. The Regional

Court used a number of police reports about the events in evidence. The

reports contained, inter alia, statements of six anonymous police

officers, who were only referred to by a number. The Regional Court

also relied on the statements of six passers-by who had witnessed the

robbery or parts of the pursuit.

     The applicants appealed to the Court of Appeal (Gerechtshof) of

's-Hertogenbosch. At the hearing of 2 May 1990, the defence requested

to have the anonymous police officers examined before the Court. The

Procurator General (Procureur-generaal) objected to this request as he

felt that the anonymity of the witnesses should be preserved. He

submitted that the rights of the defence would not be prejudiced if

these witnesses were examined by an investigating judge (rechter-

commissaris) instead of appearing before the Court.

     The Court of Appeal decided to refer the case to the

investigating judge in order to hear all twenty-one witnesses and to

examine the objections the anonymous policemen might have against

revealing their identity. The Court also considered that, given the

large number of witnesses, it did not appear to be efficient at that

stage of the proceedings to hear them all before the Court. On the

basis of the findings of the investigating judge, the Court would then

decide whether or not the witnesses were to appear before it.

     In total, the investigating judge examined twenty witnesses under

oath, eleven of whom remaining anonymous. The latter witnesses were

examined before the investigating judge while both the defence and the

Procurator General remained in different rooms, which were connected

to each other and the investigating judge's cabinet through sound

equipment. The anonymous witnesses were all police officers assigned

to special police units, namely observation teams and arrest teams.

Each of them stated before the investigating judge that, if their

identity was disclosed, they could no longer function in their service.

According to some statements the police authorities had actually

ordered officers not to reveal their identity, although others denied

this. Some of the officers added that they wanted to remain anonymous

out of fear for reprisals against them or their families. They all

confirmed the reports which they had previously made and which had been

used in evidence by the Regional Court.

     In the procès-verbal on his findings (proces verbaal van

bevindingen) to the Court of Appeal of 19 November 1990, the

investigating judge stated that he had endeavoured to observe the

conditions for the statements of an anonymous witness to be used as

evidence, as defined by the Supreme Court (Hoge Raad) following the

judgment of the European Court of Human Rights in the Kostovski case

(judgment of 20 November 1989, Series A no. 166). He recalled that in

principle these conditions are: 1) that the statement must have been

taken by a judge who knows the witness' identity; 2) that, in the

procès-verbal of the hearing of the witness, this judge must have

expressed his opinion as to the reliability of the witness and as to

the reasons for the witness' wish to remain anonymous; and 3) that the

judge must give the defence an opportunity to put questions or have

questions put to the witness. The investigating judge stated in his

report that, in the instant case, he was aware of the identity of each

anonymous police officer acting as a witness. The minutes of the

hearings contained their reasons for their anonymity, which he

considered to be credible. The investigating judge felt that the

anonymous witnesses were reliable, while at the same time acknowledging

that the assessment of the probative value of all evidence fell within

the competence of the Court of Appeal. The report indicated that both

the applicants and their lawyers had been able to question the

witnesses extensively, specifying that the interrogations had lasted

between two and five hours per witness. Some questions remained

unanswered as the witnesses feared that their answers to these

questions would lead to the disclosure of either their identity or the

research methods of the police. These questions were specifically

mentioned in the procès-verbaux of the interrogations. The draft

minutes of all hearings were circulated to the persons having attended

the hearing and they had the possibility to comment on the contents.

     At the hearings of 3 October and 28 November 1990 before the

Court of Appeal the defence repeated its request to have the anonymous

witnesses examined before the Court. The defence submitted that the

questioning of the witnesses before the investigating judge had proved

to be troublesome due to both technical problems and the impossibility

to see how the witnesses reacted to questions posed to them. The

Procurator General again objected arguing that the policemen had well-

founded reasons for remaining anonymous. The Court of Appeal rejected

the request by the defence, considering that this decision could not

reasonably prejudice the interests of the defence, in particular as the

investigating judge had interrogated the witnesses under oath, the

defence had had ample opportunity to question them thoroughly, and the

investigating judge had expressed a reasoned opinion as to the

reliability of the witnesses examined. The Court decided that the

anonymity of these witnesses was to be preserved during the trial, as

the reasons for their anonymity as submitted before the investigating

judge were relevant and sufficient.

     On 16 and 18 January 1991 the Court of Appeal examined a number

of identified persons as witnesses in respect of the facts of the case

and a reconstruction of the events made on 14 November 1990 and

4 January 1991. On 21 January 1991 the Court of Appeal heard the final

pleas in the case and closed its investigation.

     In four separate judgments of 4 February 1991, the Court of

Appeal quashed the judgments of the Regional Court in view of a

different assessment of the evidence and convicted the applicants of

several counts of attempted murder, and robbery, preceded and

accompanied by violence against persons, committed with a view to

preparing the robbery and facilitating it, and committed together with

two or more others. Each of the applicants was sentenced to 14 years'

imprisonment.

     The Court of Appeal based its conviction, apart from the physical

and forensic evidence, on the statements of: (1) a number of identified

policemen who had been involved in the investigation; (2) five

identified civilians who had witnessed parts of the events; and (3) the

eleven anonymous police officers who had been involved in the events

following the robbery. A procès-verbal of a telephone conversation,

shortly after the bank robbery, between the wife of one of the

applicants and her mother was also included in the evidence. Only some

of the anonymous witnesses stated that they had recognised one or more

of the suspects during the events. In response to the final submissions

of the defence, the Court held:

     "De bezwaren van de door de rechter-commissaris onder nummer

     gehoorde getuigen om anoniem te blijven leveren voor het hof

     voldoende argumenten op om die anonimiteit te handhaven. Het bij

     pleidooi door de raadsman gedane verzoek om die getuigen alsnog

     ter terechtzitting te horen wordt door het hof afgewezen, ook

     voor het geval dat verzoek inhoudt dat zulks onder vermomming van

     die getuigen zou kunnen plaatshebben, nu herkenning van die

     getuigen op de openbare terechtzitting niet is uit te sluiten.

     Met bedoelde argumenten om de anonimiteit van de getuigen te

     handhaven heeft het hof met name het oog op de persoonlijke

     veiligheid van de getuigen en hun gezinsleden, waaraan niet

     afdoet dat die getuigen nog niet zijn bedreigd. Zoals reeds

     verwoord in de interlocutoire beslissing van het hof d.d. 3

     oktober 1990 gaat het in casu immers om buitengewoon ernstige

     misdrijven, waarbij het sub 1 bewezenverklaarde is begaan om

     herkenning en aanhouding door de politie te ontlopen en waarbij

     de daders bereid zijn geweest een aantal mensenlevens op te

     offeren. Onder die omstandigheden zijn de risico's die de onder

     nummer gehoorde getuigen en hun familieleden lopen, indien die

     getuigen uit de anonimiteit treden, c.q. hun anonimiteit niet

     voldoende is gewaarborgd, van doorslaggevende aard.

     Voorzover anonieme getuigen geweigerd hebben antwoord te geven

     op bepaalde vragen is dit geschied om geen onderzoeksmethode

     prijs te geven of om de persoonlijke anonimiteit of die van

     andere bij de zaak betrokken opsporingsambtenaren te waarborgen.

     Ook het hof zou deze gronden hebben gerespecteerd in het geval

     de getuigen ter terechtzitting zouden zijn gehoord.

     Bij zijn beslissing heeft het hof tevens in aanmerking genomen

     dat door de raadsman niet, althans onvoldoende, is aangegeven

     welke vragen - die nog niet aan de getuigen bij de rechter-

     commissaris zijn gesteld - hij alsnog, naar aanleiding van het

     verhoor van de getuigen ter terechtzitting in hoger beroep, aan

     de anonieme getuigen zou willen stellen."

     "The reasons for remaining anonymous advanced by those witnesses

     heard under a number by the investigating judge, give the Court

     of Appeal enough arguments to maintain their anonymity. The

     request made by counsel in his final pleadings to have these

     witnesses examined before the Court is rejected, also if the

     request would aim at the hearing of these witnesses in disguise,

     since recognition of the witnesses at the public hearing cannot

     be excluded.

     When referring to the arguments to maintain the anonymity of the

     witnesses, the Court has paid special attention to the personal

     security of the witnesses and their family members, a

     consideration which is valid even though these witnesses have not

     yet been threatened. As already stated in the Court's

     interlocutory decision of 3 October 1990, the present case

     involves exceptionally serious offences, of which the acts

     established under (1) have been committed to avoid recognition

     and arrest by the police while the offenders were prepared to

     sacrifice a number of human lives. What is decisive under these

     circumstances are the risks incumbent upon the witnesses heard

     under a number and their family members if these witnesses give

     up their anonymity or if their anonymity is insufficiently

     guaranteed.

     Insofar as the anonymous witnesses have refused to answer certain

     questions, this has been done in order not to disclose an

     investigation method or in order to safeguard the personal

     anonymity or the personal anonymity of other investigation

     officers involved in the case.

     Also the Court of Appeal would have respected these grounds in

     case the witnesses would have been examined before it.

     In its decision the Court has also taken into account that

     counsel has not, in any event insufficiently, indicated which

     questions - which so far have not been put to the witnesses

     before the investigating judge - he still wishes to put to the

     anonymous witnesses following the examination of witnesses at the

     hearing on appeal."

     After having fully quoted the investigating judge's report on the

hearings of the anonymous witnesses, the Court of Appeal found that it

was not in conflict with Article 6 para. 3 (d) of the Convention to use

their statements in evidence.

      A complaint of the fourth applicant that in their investigation

the police had used a book containing a photograph of him unlawfully

obtained via the municipal or provincial driving licence or passport

administration was also rejected by the Court of Appeal.

     The applicants appealed in cassation to the Supreme Court. They

argued, inter alia, that the Court of Appeal, contrary to Article 6

paras. 1 and  3 (d) of the Convention, had used the statements of the

anonymous witnesses in evidence to a decisive extent. They referred to

the case-law of the European Court and Commission of Human Rights

relating to anonymous witnesses and put particular emphasis on the

Windisch judgment (27 August 1990, Series A vol. 186). The applicants

argued that the criteria for the use of the statements of an anonymous

witness in evidence, as defined by the Supreme Court following the

Kostovski judgment of 20 November 1989 of the European Court, were not

in conformity with the Convention. In support of this contention, they

argued that the judges sitting in the trial court were prevented from

forming themselves an opinion on the reliability of the witnesses and

their statements; they were fully dependent on the assessment of the

investigating judge. Furthermore, the defence was restricted as the

witnesses remained anonymous and refused to answer certain questions.

They further pointed in this respect to the fact that those witnesses,

who had not remained anonymous, had not been threatened, which implied

that the fear of reprisals among the anonymous witnesses had been

exaggerated. The presumption that the police officers could no longer

function in their service if their identity was disclosed was an

insufficient reason to maintain their anonymity. The applicants finally

argued that the fact that the anonymous witnesses were police officers

did not in itself make their statements more reliable.

     The fourth applicant repeated his complaint that in their

investigation the police had used a book containing an unlawfully

obtained photograph of him.

     The Supreme Court rejected the appeal in four separate judgments

on 9 June 1992. It found that the Court of Appeal had applied the

correct criteria in its decision to maintain the anonymity of the

eleven witnesses and in its subsequent decision to admit their

statements in evidence. The Supreme Court found that the Convention

provisions relied upon by the applicants had not been violated. It

held, inter alia:

     "In aanmerking genomen

     (1)   dat, zoals het Hof heeft vastgesteld, de anoniem gebleven

     opsporingsambtenaren onder ede onderscheidenlijk belofte zijn

     gehoord door de Rechter-Commissaris, die van hun onderscheiden-

     lijke identiteit op de hoogte was, die gemotiveerd heeft doen

     blijken van zijn oordeel omtrent hun betrouwbaarheid en omtrent

     de redenen voor hun wens om anoniem te blijven, en die voorts de

     verdachte en zijn raadsman in de gelegenheid heeft gesteld om aan

     die opsporingsambtenaren vragen te stellen, van welke

     gelegenheiduitvoerig gebruik is gemaakt zodat ook de verdediging

     het waarheidsgehalte van de afgelegde verklaringen heeft kunnen

     toetsen en bestrijden; en

     (2)   het door het Hof kennelijk met het oog op de

     betrouwbaarheid van de door de anonymi afgelegde verklaringen

     vastgesteld verband tussen die verklaringen onderling en dat

     tussen de verklaringen van de anonymi enerzijds en het niet

     anonieme bewijsmateriaal anderzijds;

     heeft het Hof zonder schending van het recht van de verdachte op

     een eerlijk proces zoals bedoeld in de verdragsbepalingen die in

     het middel als geschonden worden aangehaald de processen-verbaal

     houdende de verklaringen van de anoniem gebleven opsporings-

     ambtenaren voor het bewijs kunnen bezigen. Immers de hiervoren

     onder (1) opgesomde, door het Hof vastgestelde, omstandigheden

     vormen een voldoende tegenwicht tegen het nadeel dat de verdachte

     zou hebben kunnen ondervinden als gevolg van de omstandigheid dat

     de anoniem gebleven opsporingsambtenaren niet ter terechtzitting

     zijn gehoord."

     "Considering

     (1)   that, as established by the Court of Appeal, the

     investigating officers, who remained anonymous, were examined

     under oath or affirmation by the investigating judge, who was

     aware of their respective identities, who stated, giving reasons,

     his opinion as regards their reliability and as regards the

     reasons for their wish to remain anonymous, and who further gave

     the accused and his counsel the opportunity to question those

     investigating officers, of which opportunity extensive use has

     been made so that also the defence was enabled to test and

     challenge the veracity of the statements made; and

     (2)   the connection established by the Court of Appeal -

     apparently for the purpose of testing the reliability of the

     statements made by the anonymous persons - between those

     statements themselves and between those statements on the one

     hand and the non-anonymous evidence on the other hand;

     the Court of Appeal could use in evidence the procès-verbaux

     containing the statements of the investigating officers, who

     remained anonymous, without violating the suspect's right to a

     fair trial within the meaning of the provisions of the Convention

     which are mentioned in the means of cassation as being violated.

     The circumstances referred to under (1), as established by the

     Court of Appeal, form a sufficient counterbalance against the

     disadvantage the suspect may have suffered as a result of the

     fact that the investigating officers, who remained anonymous,

     were not examined at a hearing before the trial court."

     The fourth applicant's separate complaint under Article 8 of the

Convention was also rejected.

     On 1 February 1994 the Act on the Protection of Witnesses (Wet

Getuigenbescherming) entered into force, leading to an amendment to the

Code of Criminal Procedure. Under the amended Code of Criminal

Procedure, the judicial authorities may allow a witness to remain

anonymous in criminal proceedings concerning offences which seriously

rock the legal order. In cases where a witness or another person feels

threatened if a statement would be made, and where there are reasonable

grounds for the assumption that a statement by such a witness could

give rise to fear for the life, the health or safety or the disruption

of the family life or the social-economic existence of that witness or

of another person, and where this witness has stated not to be willing

to make a statement in view of such fears, the witness may be allowed

to remain anonymous. The procedure to be respected as regards the

statements by anonymous persons is, inter alia, based on the criteria

established in the Supreme Court's case-law following the European

Court's judgment of 20 November 1989 in the case of Kostovski against

the Netherlands (cf. Hoge Raad, judgment of 2 July 1990, N.J. 1990,

no. 692). A judge may not convict a person on the sole basis of

statements from anonymous persons.

COMPLAINTS

1.   Before the Commission, the applicants repeat their submissions

to the Supreme Court. They claim that the domestic courts violated

Article 6 paras. 1 and 3 (d) of the Convention by using the statements

of the anonymous witnesses as conclusive evidence and that the defence

rights in respect of these witnesses were unacceptably restricted.

2.   The fourth applicant also complains that the police used in their

investigations a book containing a photograph of him, unlawfully

obtained from the municipal or provincial driving licence or passport

administration. He claims that this interferes with his right to

respect for his private life as protected by Article 8 para. 1 of the

Convention and that the interference does not satisfy the requirements

of Article 8 para. 2.

PROCEEDINGS BEFORE THE COMMISSION

     The first and second applications were introduced on

27 November 1992 and registered on 10 February 1993. The third

application was introduced on 8 December 1992 and registered on

25 February 1993. The fourth application was introduced on

24 November 1992 and registered on 14 June 1993.

     On 11 April 1994 the Commission decided to join the four

applications and to communicate them to the respondent Government and

invite the Government to submit their observations on the admissibility

and merits of the applications.

     The Government's written observations were submitted on

1 July 1994.  The first, second and third applicants replied on

26 September 1994. The fourth applicant replied on 30 September 1994.

     On 21 October 1994 the Commission granted the first, second and

third applicants legal aid.

THE LAW

1.   The applicants claim that the domestic courts violated Article

6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention by using the

statements of the anonymous witnesses as conclusive evidence, since the

defence rights in respect of these witnesses were unacceptably

restricted.

     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. (...).

     (...)

     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 Government submit, referring to the European Court's findings

in the cases of Kostovski (judgment of 20 November 1989, Series A no.

166) and Lüdi (judgment of 15 June 1992, Series A no. 238) as regards

the use in evidence of statements made by anonymous persons, that the

proceedings at issue were in conformity with the principles formulated

by the European Court in those two judgments. They are therefore of the

opinion that the proceedings in the present case complied with the

requirements of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the

Convention.

     In the Government's opinion, the use made of the statements by

the anonymous witnesses in the present case fully complied with the

conditions laid down in the Supreme Court's case-law following the

European Court's judgment in the Kostovski case (loc. cit.). The

statements were taken down by a judge, i.e. the investigating judge,

who knew the identity of the witnesses, who expressed in the procès-

verbal on his findings his opinion, furnished with reasons, in respect

of the witnesses' justification for wishing to remain anonymous and

these witnesses' reliability, and who provided the defence with ample

opportunity to question each of the witnesses, who were examined under

oath or affirmation.

     Furthermore, the Government point out that, like the

investigating judge, the Court of Appeal accepted the reasons for the

anonymous witnesses' wish to remain anonymous and the fact that certain

questions put to these persons remained unanswered, whereas in its

decision on the request of the defence to have these witnesses examined

before the Court of Appeal, it noted that the defence had amply availed

itself of the opportunity to question the anonymous witnesses during

their examination before the investigating judge, and considered that

the defence had failed to indicate with sufficient clarity, which

questions - which had not yet been put to these witnesses in the course

of their examination before the investigating judge - it would wish to

put to the anonymous witnesses before the Court of Appeal.

     Finally, the Government submit that neither Dutch law nor the

Convention acknowledges an unrestricted right to question witnesses,

and that the applicants were not convicted on the sole basis of

statements by anonymous witnesses, but also on the basis of statements

made by identified witnesses and physical evidence.

     The applicants submit that the judicial authorities dealing with

the applicants' cases unjustly held that preservation of the witnesses'

anonymity was justified. They submit that the fear of reprisals was not

plausible in the absence of any concrete evidence of actual threats or

anything which would justify fear of reprisals.

     The applicants maintain that they did not receive a fair trial

within the meaning of Article 6 (Art. 6) of the Convention as they were

denied an essential element of a fair trial, namely the cross-

examination before the trial court of witnesses who give incriminating

evidence. The applicants submit that they were not given an adequate

opportunity by the investigating judge to test the reliability of the

anonymous witnesses. The mere existence of an opportunity in some way

to question witnesses does not necessarily mean that the opportunity

is adequate. It was not adequate in their respective cases in view of

the way the examination before the investigating judge took place, the

fact that important questions remained unanswered and that the

witnesses could not be observed during their examination.

     The applicants consider that the principle of "immediacy"

(onmiddellijkheidsbeginsel), i.e. the principle according to which the

evidence should be produced and taken before the trial court itself,

has been violated in respect of the anonymous witnesses' statements.

The applicants submit that they were denied the opportunity to have the

trial court form its own opinion of the reliability of the evidence

given, which is a crucial flaw given that their convictions were mainly

based on anonymous evidence. They argue that, even if it would have

been necessary to hear witnesses anonymously, certain alternative

measures could have been taken, such as hearing witnesses in camera,

or in the absence of the accused.

     After a preliminary examination in the light of all the parties'

submissions, the Commission considers that this part of the application

raises serious questions of fact and of law which require an

examination of the merits. This part of the application cannot,

therefore, be declared inadmissible as being manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

No other grounds for inadmissibility have been established.

2.   The fourth applicant complains that the police used in their

investigations a book containing an unlawfully obtained photograph of

him. He claims that this interfered with his right to respect for his

private life as protected by Article 8 para. 1 (Art. 8-1) of the

Convention and that the interference did not satisfy the requirements

of Article 8 para. 2 (Art. 8-2).

     Article 8 (Art. 8) of the Convention provides 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 notes that the photograph at issue was not taken

in a way which constitutes an intrusion upon the applicant's privacy,

that the photograph was kept in official archives since it had been

provided voluntarily by the applicant in connection with an application

for a passport or a driving licence, and that the police had obtained

and used the photograph solely for the identification of one of the

authors of the robbery in the context of a judicial investigation.

There is no indication that the photograph at issue has been made

available to the general public or used for any other purpose.

     In view of these elements the Commission finds that the use of

the fourth applicant's photograph does not amount to an interference

with his private life within the meaning of Article 8 (Art. 8) of the

Convention (cf. No. 20524/92, Dec. 29.11.93, Doorson v. the

Netherlands, Comm. Report 11.10.94, Appendix II).

     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, by a majority,

     DECLARES ADMISSIBLE, without prejudging the merits of the case,

     the applicants' complaint under Article 6 paras. 1 and 3 (d)

     (Art. 6-1, 6-3-d) of the Convention on the use in evidence of

     statements of anonymous persons;

     and, unanimously,

     DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission       President of the Commission

       (H.C. KRÜGER)                    (C.A. NØRGAARD)

 

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