EUROPEAN COMMISSION OF HUMAN RIGHTS
Application Nos. 21363/93,
21364/93, 21427/93 & 22056/93
Hendrik van Mechelen, Willem Venerius,
Johan Venerius & Antonius Amandus Pruijmboom
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 27 February 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-54). . . . . . . . . . . . . . . . . . . . . . . . 4
A. The particular circumstances of the case
(paras. 16-36) . . . . . . . . . . . . . . . . . . . . . 4
B. Relevant domestic law
(paras. 37-54) . . . . . . . . . . . . . . . . . . . . .10
III. OPINION OF THE COMMISSION
(paras. 55-86). . . . . . . . . . . . . . . . . . . . . . . .13
A. Complaint declared admissible
(para. 55) . . . . . . . . . . . . . . . . . . . . . . .13
B. Point at issue
(para. 56) . . . . . . . . . . . . . . . . . . . . . . .13
C. As regards Article 6 paras. 1 and 3 (d) of the Convention
(paras. 57-85) . . . . . . . . . . . . . . . . . . . . .13
CONCLUSION
(para. 86) . . . . . . . . . . . . . . . . . . . . . . .17
DISSENTING OPINION OF MR. E. BUSUTTIL . . . . . . . . . . . . . . .18
DISSENTING OPINION OF MRS. J. LIDDY, JOINED BY
MM. H. DANELIUS, C.L. ROZAKIS, L. LOUCAIDES, M.A. NOWICKI,
N. BRATZA AND A. PERENIC . . . . . . . . . . . . . . . . . . . . .20
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . .22
I. INTRODUCTION
1. The following is an outline of the cases as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicants are Dutch citizens, born in 1960, 1961, 1962 and
1964 respectively. At the time of the introduction of the applications
they were all in detention in the Netherlands. In the proceedings
before the Commission, the first two applicants were represented by
Mrs. T.N.B.M. Spronken, a lawyer practising in Maastricht, the third
applicant by Mr. J.M. Sjöcrona, a lawyer practising in The Hague, and
the fourth applicant by Mr. G.G.J. Knoops, a lawyer practising in
's-Hertogenbosch.
3. The applications are directed against the Netherlands. The
respondent Government were represented by their Agent, Mr. K. de Vey
Mestdagh of the Netherlands Ministry of Foreign Affairs.
4. The cases concern the fairness of the criminal proceedings
against the applicants, in which the applicants were convicted on the
basis of, inter alia, statements by unidentified witnesses. The
applicants invoke Article 6 paras. 1 and 3 (d) of the Convention.
B. The proceedings
5. The first and second applications were introduced on
27 November 1992, the third application on 8 December 1992 and the
fourth application on 24 November 1992. The first and second
applications were registered on 10 February 1993, the third application
on 25 February 1993 and the fourth application on 14 June 1993.
6. On 11 April 1994, the Commission decided to join the applications
and, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give
notice of the applications to the respondent Government and to invite
the parties to submit written observations on their admissibility and
merits.
7. The Government's 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 requests by the first, second and third
applicants for legal aid for the representation of their respective
cases.
8. On 15 May 1995, the Commission declared admissible the
applicants' complaints under Article 6 paras. 1 and 3(d) of the
Convention. It declared inadmissible the remainder of the
applications.
9. The text of the Commission's decision on admissibility was sent
to the parties on 2 June 1995 and they were invited to submit such
further information or observations on the merits as they wished. No
such observations have been submitted.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
C.A. NØRGAARD
G. JÖRUNDSSON
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
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
12. The text of this Report was adopted on 27 February 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. The Commission's decision on the admissibility of the application
is annexed hereto.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. 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, who seemed to be
involved in the robberies and who 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.
17. On 26 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 in a car chase, the perpetrators fired several
times at policemen and passers-by, deploying inter alia an automatic
gun. At one point, in the inhabited part of a small town, they ambushed
and opened fire at the police, more or less seriously wounded four
policemen and got away. The getaway car was later found burning on a
sand path.
18. The applicants were arrested in January and February 1989. In the
course of a confrontation with a number of persons through a two-way
mirror, some of the police officers involved in the events prior to and
after the robbery identified one or more of the applicants. The
applicants were charged in March 1989 with the robbery of
26 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.
19. The Regional Court (Arrondissementsrechtbank) of 's-Hertogenbosch
which dealt with the four separate sets of criminal proceedings,
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 ten years' imprisonment. The
Regional Court used several police reports about the events in
evidence. The reports contained, inter alia, statements of unidentified
police officers, who were only referred to by a number. The reports had
been taken down by named police officers. The Regional Court also
relied on the statements of passers-by who had witnessed the robbery
or parts of the pursuit.
20. The applicants appealed to the Court of Appeal (Gerechtshof) of
's-Hertogenbosch, which dealt with the four separate cases
simultaneously. At the hearing of 2 May 1990, the defence requested to
have the unidentified police officers heard 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 heard by an investigating judge (rechter-
commissaris) instead of appearing before the Court.
21. The Court of Appeal decided to refer the case to the
investigating judge in order to hear all twenty-one witnesses, i.e.
eleven unidentified police officers, eight identified police officers
and two civilians, and to examine the objections which the unidentified
policemen might have against revealing their identity. The Court
specified that, in principle, all questions the defence wished to put
should be asked during the examination of these witnesses before the
investigating judge. 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.
22. In total, the investigating judge examined twenty witnesses under
oath, eleven of whom remaining unidentified. 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.
23. The unidentified 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 properly in their service.
According to some statements the police authorities had actually
ordered officers not to reveal their identity, although others denied
this. Each of the officers added that they wanted to remain
unidentified out of fear for reprisals against them and/or their
families. They all confirmed the reports which they had previously made
and which had been used in evidence by the Regional Court.
24. 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 was aware of the identity of each
unidentified police officer acting as a witness and that the eleven
unidentified witnesses were different persons. The minutes of the
hearings contained their reasons for their anonymity, which he
considered to be credible and justified. The investigating judge
further gave reasons for his findings that the unidentified witnesses
were reliable.
25. The investigating judge explicitly acknowledged that the final
assessment of the probative value of the evidence and of the validity
of the reasons put forward by the unidentified witnesses for their wish
to remain anonymous should be made by the Court of Appeal.
26. The report indicated that both the applicants and their lawyers
had been able to question the witnesses, and that the defence had
availed itself extensively of this possibility, sometimes in a rather
forceful way ("soms vrij felle wijze van ondervraging"). The report
specified that the hearings had lasted between two and five hours per
witness. Some questions had 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 explicitly mentioned in the minutes of the hearings. The
draft minutes of all hearings were circulated to the persons having
attended the hearing and they had the possibility of commenting on the
contents.
27. At the hearings of 3 October and 28 November 1990 before the
Court of Appeal the defence repeated its request to have the
unidentified 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 put to
them. The Procurator General again objected arguing that the policemen
had well-founded reasons for remaining anonymous.
28. 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.
29. 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 hearings.
30. 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. It 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 fourteen
years' imprisonment.
31. 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 unidentified 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 third applicant's wife and
her mother was also included in the evidence. Only the unidentified
witnesses stated that they had recognised one or more of the applicants
at the relevant time.
32. 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 gezinsleden 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 sufficient 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, and 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 is 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 not sufficiently, 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." 33. After having fully quoted the investigating judge's report on the hearings of the unidentified 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. 34. The applicants appealed in cassation to the Supreme Court (Hoge Raad). 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 unidentified witnesses in evidence to a decisive extent. They referred to the case-law of the European Court and Commission of Human Rights relating to unidentified witnesses and put particular emphasis on the Windisch judgment of 27 August 1990. The applicants argued that the criteria for the use of the statements of an unidentified 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. 35. In support of this contention, the applicants 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 unidentified and refused to answer certain questions. They further pointed in this respect to the fact that those witnesses, who had not remained unidentified, had not been threatened, which implied that the fear of reprisals among the unidentified 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 unidentified witnesses were police officers did not in itself make their statements more reliable. 36. 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 gelegenheid uitvoerig 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 able 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." B. Relevant domestic law 37. Section 168 of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering, hereafter: "CCP") provides that each Regional Court has one or more investigating judges to whom criminal cases are entrusted. They are nominated, for a term of two years, by the competent Court of Appeal from amongst the members of the Regional Court. 38. One of the tasks of the investigating judge is to conduct, in the context of a preliminary judicial investigation, a pre-trial investigation by gathering evidence in preparation of the subsequent examination of the case before the trial court. The investigating judge must act impartially, by also collecting evidence which might exculpate the suspect. 39. The investigating judge will hear the suspect, witnesses and experts as soon as possible and as often as required (Section 185 CCP). The examination of witnesses and other activities by the investigating judge are recorded in procès-verbaux (Section 172 CCP). Both the public prosecutor and defence counsel are, in principle, entitled to be present at those hearings (Sections 185 para. 2 and 186 CCP) and, even if they are absent, to give notice of questions they wish to be put to the persons heard. Most investigating judges invite the accused and his counsel to attend when they hear witnesses. 40. The law does not make the presence of counsel for the defence compulsory during the investigation by the police. The same applies to the preliminary judicial investigation by the investigating judge. 41. If the public prosecutor finds that the results of the preliminary judicial investigation justify prosecution, he will notify the suspect and commit the latter for trial. The investigation at the trial will then follow. 42. If, pending its examination, the trial court considers that a further investigation is called for, it can decide to refer the case back to the investigating judge indicating the object of the investigation and, if necessary, the way it should be carried out (Sections 316, 415 and 420 CCP) 43. As regards evidence in criminal proceedings, Section 338 CCP provides that the finding that the accused has committed the act with which he is charged may be made by a trial judge only if he has been fully convinced, after the investigation at the trial, by the contents of "legal means of evidence" (wettige bewijsmiddelen). Section 338 CCP embodies the principle of immediacy (onmiddellijkheidsbeginsel), according to which, inter alia, witnesses are obliged to appear before the trial court and only statements made in court can be accepted as valid evidence. 44. The "legal means of evidence" consist, according to Section 339 CCP, exclusively of (i) the judge's own observations; (ii) statements made by the accused; (iii) statements made by a witness; (iv) statements made by an expert; and (v) written documents. 45. Evidence in the third category is defined in Section 342 CCP, which reads: "1. A statement by a witness is understood to be his statement, made in the investigation at the trial, of facts or circumstances which he himself has seen or experienced. 2. The judge cannot accept as proven that the defendant has committed the act with which he is charged, solely on the statement of one witness." 46. Sections 280 and 281-295 CCP contain various provisions concerning the examination of witnesses before the trial courts (for further details see, Eur. Court H.R., Kostovski judgment of 20 November 1989, Series A no. 166, pp. 14-15, paras. 25 and 26). 47. Evidence in the fifth category is defined in Section 344 CCP, which, as far as relevant, reads: "1. Written documents are understood to be: 1° ...; 2° official reports and other documents, drawn up in the lawful form by bodies and persons who have the proper authority and containing their statement of facts or circumstances which they themselves have seen or experienced; 3° ...; 4° ...; 5° all other documents; but these are valid only in conjunction with the content of other means of evidence. 2. (...)." 48. An anonymous statement contained in an official police report falls within the scope of sub-paragraph 2° of paragraph 1 of this Section. 49. In the great majority of criminal cases in the Netherlands, in apparent contrast with the principle of immediacy, witnesses are not heard at the trial, but by the police and/or the investigating judge either before or pending the trial (see para. 39 above). This is to a considerable extent due to a leading judgment of the Supreme Court of 20 December 1926 (Nederlandse Jurisprudentie 1927, nr. 85). According to this judgment it is permissible to use as "legal means of evidence" de auditu statements, i.e. statements made by a witness not at the trial but before a police officer or the investigating judge, provided they are recorded in an official report which is read out in court. 50. Until 1 February 1994 the Code of Criminal Procedure contained no express provisions concerning the use in evidence of statements by unidentified witnesses. However, with the increase in violent organised crime a need was felt to protect those witnesses who had justified reasons for fearing reprisals by granting them anonymity. The possibility to use in evidence statements by unidentified persons was examined and, under certain circumstances, found acceptable by the Supreme Court in a number of cases between 1980 and 1985 (for further details see, Eur. Court H.R., Kostovski judgment of 20 November 1989, loc. cit, pp. 16-17, paras. 31 and 32). 51. Following the Court's judgment in the Kostovski case (loc. cit.), the Supreme Court defined the conditions under which statements of an unidentified witness may be used in evidence. According to these conditions such a statement must have been taken by a judge who is aware of the identity of the witness; in the procès-verbal of the hearing of such a witness, the judge must have expressed his opinion as to the reliability of the witness and as to the reasons for the wish of the witness to remain unidentified; moreover, the judge must provide the defence with the opportunity to put questions or have questions put to this witness (Hoge Raad, judgment of 2 July 1990, NJ 1990, no. 692). 52. 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 "threatened witness" to remain unidentified in criminal proceedings concerning offences which seriously rock the legal order. According to Section 226a of the amended Code of Criminal Procedure such a situation arises when "in view of the statement to be made by the witness, the witness or another person may feel threatened to such an extent that it may reasonably be assumed that there is fear for the life, health or the safety or otherwise the breakdown of family life or the social-economic existence of that witness or that other person, and the witness has made it known that he is not willing, because of this threat, to make a statement". 53. According to the Explanatory Memorandum to the Act on the Protection of Witnesses, it has been endeavoured to implement in this Act the principles established by the European Court of Human Rights in the cases of Kostovski (loc. cit.) and Windisch (judgment of 27 September 1990, Series A no. 186) and by the Netherlands Supreme Court in its judgment of 2 July 1990 (NJ 1990, no. 692) as regards the use in evidence of statements by unidentified witnesses (Tweede Kamer, 1991-1992, 22 483, nr. 3, paras. 4-5. pp. 7-13). 54. According to the wording of Section 344a of the amended Code of Criminal Procedure, a judge may not convict a person on the sole basis of statements of unidentified persons. III. OPINION OF THE COMMISSION A. Complaint declared admissible 55. The Commission has declared admissible the applicants' complaint under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention that, in the criminal proceedings against each of them, they did not receive a fair hearing as the domestic courts used in evidence statements of unidentified persons in respect of whom the exercise of the defence rights was unacceptably restricted. B. Point at issue 56. The point at issue is accordingly whether there has been a violation of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention. C. As regards Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention 57. Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention, insofar as relevant, provide as follows: "1. In the determination of (...) any criminal charge against him, everyone is entitled to a fair (...) hearing (...) by a (...) tribunal (...). (...) 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; (...)." 58. The applicants complain that they did not have a fair trial in that unacceptable restrictions were placed on the exercise of their defence rights as regards the unidentified witnesses whose statements the trial courts relied upon in their respective judgments. 59. The applicants submit that the judicial authorities dealing with their cases unjustly held that the preservation of the witnesses' anonymity was justified. They submit that the alleged fear of reprisals was not plausible in the absence of any concrete evidence of actual threats or anything which would justify fear of reprisals. 60. In the applicants' view, they were denied an essential element of a fair trial, namely the cross-examination before the trial court of witnesses who gave incriminating evidence. The applicants submit that they were not given an adequate opportunity by the investigating judge to test the reliability of the unidentified 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 given the way the examination before the investigating judge took place. Important questions remained unanswered and the witnesses could not be observed during their examination. 61. The applicants consider that the principle of immediacy, the principle according to which the evidence should be produced and taken before the trial court itself, has been violated in respect of the unidentified 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. They consider this a crucial flaw given that their convictions were mainly based on evidence given by unidentified witnesses. They argue that, even if it would have been necessary to hear witnesses whose identity was not disclosed, certain alternative measures could have been taken, such as hearing the witnesses in camera, or in the absence of the accused. 62. The Government submit, referring to the European Court's findings in the cases of Kostovski (loc. cit.) and Lüdi (Eur. Court H.R., judgment of 15 June 1992, Series A no. 238) as regards the use in evidence of statements made by unidentified 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. 63. In the Government's opinion, the use made of the statements by the unidentified witnesses in the present case further 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 his opinion in the procès-verbal on his findings, furnished with reasons, in respect of the witnesses' justification for wishing to remain unidentified 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. 64. Furthermore, the Government point out that, like the investigating judge, the Court of Appeal accepted the reasons for the witnesses' wish to remain unidentified and the fact that certain questions put to these persons remained unanswered. In its decision on the request of the defence to have these witnesses examined before the Court of Appeal, the court noted that the defence had amply availed itself of the opportunity to question the unidentified witnesses during their examination before the investigating judge. It further 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 unidentified witnesses before the Court of Appeal. 65. 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 unidentified witnesses, but also on the basis of statements made by identified witnesses and other independent corroborating evidence. 66. As the guarantees in para. 3 (d) of Article 6 (Art. 6-3-d) are specific aspects of the right to a fair trial set forth in para. 1 of this article, the Commission will consider the applicants' complaint under the two provisions taken together (cf. Eur. Court H.R., T. v. Italy judgment of 12 October 1992, Series A no. 245-C, p. 41, para. 25). 67. The Commission recalls that the admissibility of evidence is primarily governed by the rules of domestic law, and that as a general rule it is for the domestic courts to assess the evidence before them (cf. Eur. Court H.R., Saïdi judgment of 20 September 1993, Series A no. 261-C, p. 56, para. 43). 68. However, for the purposes of the Convention it must be ascertained whether the proceedings in their entirety, including the way in which evidence was taken, were fair (cf. Eur. Court. H.R., Edwards judgment of 16 December 1992, Series A no. 247-B, pp. 34-35, para. 34). 69. All evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. However, the use as evidence of statements obtained at the stage of the police inquiry or the judicial investigation is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6 (Art. 6-3-d, 6-1), provided that the rights of the defence have been respected. As a rule these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when the witness was making his statement or at a later stage of the proceedings (cf. Eur. Court H.R., Kostovski judgment, loc. cit., pp. 20-21, paras. 41-45; Windisch judgment, loc. cit., pp. 10-11, paras. 26-31; Lüdi judgment, loc. cit., p. 21, paras. 47-50; and Saïdi judgment, loc. cit., p. 56, para. 43). 70. The Court, however, has also accepted that there are exceptions to the general principle that all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument, insofar as the rights of the defence are not infringed (Eur. Court H.R., Kostovski judgment, loc. cit., p. 20, para. 41; and Lüdi judgment, loc. cit., p. 21, para. 47). 71. The Commission notes that the court which in the last resort examined the questions of evidence in the proceedings at issue was the Court of Appeal of 's-Hertogenbosch. It appears from that court's respective judgments that it based its finding of guilt to a large extent, although not exclusively, on the statements of the unidentified police officers. 72. The Commission must therefore examine whether these unidentified police officers gave their evidence under conditions which ensured the applicants' rights of defence and their right to a fair trial. 73. The Commission notes that in the present case the Court of Appeal, for reasons of efficiency, decided to refer the case to the investigating judge in order to hear all twenty-one witnesses, including the eleven unidentified police officers, under the explicit instruction that, in principle, all questions the defence wished to put to these witnesses should be asked. 74. The Commission further notes that the investigating judge was aware of the identity and function of each unidentified witness, of these witnesses' private and/or professional reasons for their wish to remain unidentified and that the investigating judge expressed his findings as regards the credibility of these reasons and the reliability of these witnesses. 75. The Commission also notes that the defence was provided with ample opportunity to question each witness heard before the investigating judge, who could directly observe the witnesses' demeanour during questioning. Having regard to the length of time during which each individual witness was heard, the defence apparently made extensive use of the opportunity to put questions to these witnesses. 76. The Commission finally notes that the Court of Appeal rejected the subsequent requests by the defence for a further hearing of the unidentified witnesses before the Court of Appeal itself, finding inter alia that the defence has insufficiently indicated which questions it still wished to put to these witnesses. 77. The Commission recalls that Article 6 (Art. 6) does not grant the accused an unlimited right to secure the appearance of witnesses in court. It is normally for the national courts to decide whether it is necessary or advisable to hear a witness (cf. No. 8231/78, Dec. 6.3.82, D.R. 28, p. 5, and Eur. Court H.R., Bricmont judgment of 7 July 1989, Series A No. 158, p. 31, para. 89). 78. Since neither before the investigating judge nor before the Court of Appeal counsel for the defence had been able directly to confront the unidentified witnesses, and since the witnesses were not heard before the Court of Appeal, the Commission must examine whether the applicants were harmed in the exercise of their rights of defence by reason of the Court of Appeal's refusal to order a further hearing of the unidentified witnesses directly before that court. 79. The Commission notes that the applicants were suspected of having committed serious offences involving violence, including the attempted murder of police officers. It further notes that the Court of Appeal, before rejecting the request of the defence for a further hearing of the unidentified witnesses, had already found that these witnesses had justified reasons for wishing to remain unidentified. 80. The Commission recalls that the European Court of Human Rights has acknowledged that the growth in organised crime doubtless demands the introduction of appropriate measures (cf. Eur. Court H.R., Kostovski judgment, loc. cit., p. 21, para. 44). 81. Unlike the situations which the Court examined in the cases of Kostovski, Windisch, Lüdi and Saïdi (loc. cit.), the unidentified witnesses in the present case were heard before an investigating judge, whose independence and impartiality are not disputed, who was aware of the unidentified witnesses' identity, function and reasons for their wish to remain unidentified. These reasons and the investigating judge's findings as regards the credibility and reliability of these witnesses were accepted by the Court of Appeal. 82. The evidence given by the unidentified witnesses was debated in adversarial proceedings in which the applicants were given ample opportunity to challenge this evidence both when these witnesses made their statements before the investigating judge and subsequently in the proceedings before the Court of Appeal. The Commission further finds no indication that in the proceedings on appeal the applicants were prevented from submitting whatever they found relevant to their respective cases. 83. Also having regard to the fact that the request of the defence for a further hearing of the unidentified witnesses was rejected for lack of substantiation, the Commission cannot find that the Court of Appeal's decision not to order a further hearing of the unidentified witnesses was unreasonable or substantially harmed the applicants in the exercise of their defence rights. 84. Finally, the applicants' conviction did not solely rest on the statements by these unidentified witnesses. Apart from forensic evidence and the contents of a tapped telephone conversation between two members of the applicants' family, the Court of Appeal also used in evidence statements by identified witnesses heard before the Court of Appeal. The Court of Appeal found that these other means of independent evidence corroborated the statements of the unidentified police officers. 85. In these circumstances, the Commission is of the opinion that, on balance, the proceedings against the applicants taken as a whole cannot be regarded as unfair. CONCLUSION 86. The Commission concludes, by twenty votes to eight, that in the present cases there has been no violation of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention. Secretary to the Commission President of the Commission (H.C. KRÜGER) (S. TRECHSEL) (Or. English) DISSENTING OPINION OF MR. E. BUSUTTIL I dispute the finding of the majority that there has been no breach of Article 6 paras. 1 and 3(d) of the Convention in the present cases, and agree with the conclusion reached in Mrs. Liddy's dissenting opinion that the constraints imposed on the rights of the defence were such that the applicants were deprived of a fair trial. I am also in broad agreement with the reasoning contained in the dissenting opinion, but would myself highlight in particular the publicity ingredient inherent in the concept of a fair trial. The public character of court proceedings is a cardinal principle enshrined in para. 1 of Article 6. It protects litigants against the administration of justice in secret without public scrutiny and ensures the maintenance of the confidence of the public at large in the judicial system. Publicity renders the administration of justice visible and is therefore conducive to the achievement of a fair trial, the guarantee of which is one of the fundamental principles of any democratic society. This characteristic is all the more important in contemporary democratic societies where openness and public accountability are constantly extolled and clandestinity is viewed with disfavour. To preserve its credibility, democracy must practice what it preaches. It is small wonder, therefore, that the Court has underscored the explicit character of court proceedings by stating that all evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. While the Convention does not preclude the taking of anonymous evidence in the interests of public policy in the investigation stage of criminal proceedings, to consider such evidence at the trial stage as sufficient to found a conviction, as in the present cases, involves restrictions on the rights of the defence which are irreconcilable with the guarantees embodied in Article 6. Incriminating evidence should be produced and taken before the trial court in public so that that court itself (and not some examining magistrate sitting in private) should form its own opinion of the reliability of the evidence presented and not rely on second-hand evidence. The majority of the Commission itself concedes in para. 71 of the Report that the Courts in the Netherlands based their finding of guilt to a large extent (even if not exclusively) on the statements of the unidentified police officers. The tale which we see unfolding before our eyes in the present cases consists of an ostensibly public hearing held by a trial court which reached a finding of guilt, based to a large extent on evidence taken in private by an investigating judge, out of sight and hearing of the trial court itself. The evidence taken before the investigating judge was largely anonymous evidence taken out of sight of but within the hearing of the defence and prosecution counsel. The identity of the unidentified police officers was unknown to the Regional Court, unknown to the Court of Appeal, unknown to the Supreme Court, unknown to defence and prosecution counsel, and unknown to the community at large. Their identity was only known to the investigating judge in the privacy of his conscience. To my mind, this scenario smacks of stage management and, in the final analysis, cannot be disassociated from the danger of arbitrariness. In addition, in these days of investigative journalism, one could be led to speculate about the consequences, under Dutch law and under the Convention, for some particularly enterprising journalist who happened to discover the identity of the unidentified witnesses and then proceeded to divulge it to the general public. (or. English) DISSENTING OPINION OF MRS. J. LIDDY, JOINED BY MM. H. DANELIUS, C.L. ROZAKIS, L. LOUCAIDES M.A. NOWICKI, N. BRATZA AND A. PERENIC The applicants were convicted by the Court of Appeal on the basis of a number of written statements. It had heard direct evidence from identified police witnesses concerning forensic evidence and the investigation. None of the identified police officers was close to the events. A bystander was unable to identify the applicants. The Court of Appeal had also examined a reconstruction of the events of 26 January 1989. It had not heard any direct evidence from eleven unidentified police officers who had been involved in the events of that day, but whose evidence was apparently crucial to the convictions. In particular, it related to the identification of some of the applicants on the day in question. The applicants challenged the identification and prosecution case as a whole. The eleven police officers had been examined on oath earlier by an investigating judge within the hearing but outside the sight of defence and prosecution counsel. These witnesses had refused to answer questions that might lead to a disclosure of their identity including questions relating to their friendship with colleagues. The issue is whether the use of the eleven unidentified witnesses' evidence involved such limitations on the rights of the defence that the applicants cannot be said to have had a fair trial. The Court has established certain principles under the Convention in this connection: - In principle, all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument. However to use statements obtained at the pre-trial stage is not in itself inconsistent with Article 6 paras. 1 and 3(d) provided the rights of the defence have been respected (Kostovski Case, Judgment of 23 May 1989, Series A, No. 166). - A relevant factor is whether each of the trial courts was precluded by the absence of unidentified witnesses from observing their demeanour under questioning and thus forming their own impression of their reliability. The use of caution in evaluating such statements can scarcely be regarded as a proper substitute for direct observations (Kostovski, loc.cit.). - Police officers' evidence at the hearing as to the reliability of the unidentified witnesses cannot be regarded as a proper substitute for direct observation (Windisch case, Judgment of 27 September 1990, Series A, Vol. 186). - Even where the unidentified witnesses are sworn police officers, an accused must have during the proceedings an opportunity to question them and cast doubt on their credibility (Lüdi Case, Judgment of 15 June 1992, Series A, Vol. 238). In the present case, the investigating judge, but neither of the trial courts, had an opportunity to observe the demeanour of the unidentified witnesses. This cannot be said to provide a "proper substitute for direct observation" (cf. Windisch Case) in the circumstances of the case. In the first place, there was no pressing reason for the Court of Appeal not to hear these witnesses itself. They were available within the jurisdiction. The Court appears merely to have followed a practice of recent times, possibly based on convenience (cf. para. 49 of the Report). In the second place, counsel for the defence was deprived of the possibility of seeing how the witnesses reacted to questions put to them, and to draw on such observations for the purpose of questioning and persuading the judge to adopt a certain view of their credibility. In the third place, there is no evidence that the Court treated the unidentified statements with caution. On the contrary, it stated (without further elaboration) that it would have respected the refusal of the unidentified witnesses to answer certain questions in order not to disclose an investigation method or in order to safeguard personal anonymity of investigation officers. The facts that the evidence as to the reliability of the unidentified witnesses came from an investigating judge rather than police officers (as was the case in Windisch) and that the Court of Appeal had insufficient indication of the questions counsel still wished to put to the witnesses are not such as to justify the fundamental flaw in the proceedings. The Court of trial was unable to assess for itself the credibility of those witnesses in circumstances where it would have been open to it to do so in a way which took into account any legitimate interest of the police authorities in preserving the anonymity of undercover agents (cf. mutatis mutandis, Lüdi Case, loc. cit.). Accordingly, there was a violation of para. 3(d) in conjunction with para. (1) of Article 6.
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