AS TO THE ADMISSIBILITY OF
Application No. 24384/94
by Peter Johnny VAN REESWIJK
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 18 May 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
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 27 April 1994 by
Peter Johnny VAN REESWIJK against the Netherlands and registered on
13 June 1994 under file No. 24384/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch national, born in 1955, who at present
serves a prison sentence in Veenhuizen, the Netherlands. Before the
Commission, he is represented by Mrs. T. Spronken, a lawyer practising
in Maastricht.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In the context of an investigation, started in 1989, into a South
American group, operating from Columbia and involved in large scale
transports of cocaine and marihuana from South America to Germany,
Italy, Spain and the Netherlands, the German Federal Office of Criminal
Investigation (Bundeskriminalamt, hereinafter referred to as "BKA") at
Wiesbaden, Germany, set up a transport company called Mertrans. This
company was run by police officers and its telephone was tapped. Two
police officers, known under the code names of A 253 and A 256, were
registered as the company's owners.
The aim of this operation was to infiltrate the European
distribution network of the South American organisation, by providing
it with storage facilities for the imported drugs pending a further
distribution to other European countries and thus to find the buyers
of those drugs. A central role in Mertrans was given to "Hugo", a
police informer who apparently had good contacts with the Columbian
group and its clients.
The BKA informed the Dutch Central Investigation Department
(Centrale Recherche Informatiedienst, hereinafter referred to as "CRI")
of the Netherlands Ministry of Justice of this investigation and
requested the Dutch police and judicial authorities to co-operate where
necessary in order to make it possible to trace and arrest the
organisers, suppliers, transporters and buyers involved in this drug
traffic.
On 5 October 1990 a first shipment of about 960 kilogrammes of
cocaine sent by the South American group at issue was seized by the BKA
in Frankfurt, Germany. It further appeared that a second shipment
consisting of about 800 kilogrammes of cocaine and about 10.000
kilogrammes of marihuana was on its way to Germany.
In the beginning of November 1990, Mertrans was contacted by
telephone by H.M., a Dutchman, who presented himself as "Martin". On
26 October 1990 the German police authorities involved requested the
Public Prosecutor (officier van justitie) at Roermond, the Netherlands,
to allow a supervised delivery of drugs. This request was granted under
the condition that the German police officers involved would be
accompanied by Dutch police officers.
Following several telephone conversations in Spanish between H.M.
and "Hugo", they met on 6 November 1990 in Venlo, the Netherlands, in
order to discuss the transaction. On that occasion H.M. was accompanied
by the applicant. "Hugo" was accompanied by the two "owners" of
Mertrans, A 253 and A 256. During this meeting, while being observed
by the Dutch police, H.M. handed 500.000 Dutch guilders over to "Hugo",
after the applicant had given him a plastic bag out of which H.M. took
the money.
On 12 November 1990, while being observed and photographed by the
Dutch police, A 253 and A 256 delivered five carton boxes and a plastic
bag, containing altogether about 125 kilogrammes of cocaine, to H.M.
and the applicant on a parking lot in Venlo. H.M., the applicant, A 253
and A 256 placed the cocaine in the car in which H.M. and the applicant
had arrived. Thereupon H.M. and the applicant drove to another nearby
town in the Netherlands, where they met E.G. at a hospital parking lot.
They then loaded the drugs into the car of E.G. and drove away. Shortly
after they had left the parking lot, H.M. and the applicant were
arrested by the Dutch police and subsequently detained on remand.
On 13 and 14 January 1991 the Dutch police questioned A 253 and
A 256 on the drug transaction and their respective part in it. The
police were aware of the identity and function of both A 253 and A 256,
who both identified the applicant and H.M. from photographs.
On 23 January 1991 the investigating judge (rechter-commissaris)
of the Regional Court (Arrondissementsrechtbank) of Roermond, assisted
by an interpreter, examined A 253, A 256 and M., the BKA officer who
had been in charge of the investigation in Germany in respect of the
second shipment from the South American group. The lawyers of the
applicant and of the co-suspects H.M. and E.G. were present and were
provided with the opportunity to put questions to A 253, A 256 and
H.M., and they availed themselves of this opportunity. During the
examination of the witnesses, the applicant and his co-suspects H.M.
and E.G. were present in another room with sound equipment enabling
them to listen to and communicate with the persons in the room where
the witnesses were examined.
As the investigating judge considered that, because of their
anonymity, A 253 and A 256 would not appear before the trial court,
they were examined under oath pursuant to Section 216 of the Code of
Criminal Procedure (Wetboek van Strafvordering). Before A 253 and A 256
were heard, the investigating judge verified their identity and their
status as German police officers.
A 253 declared to the investigating judge that he was not
authorised to make any statement concerning "Hugo"'s particulars, to
indicate whether or not he was a police officer, or to give any
information about his relation to the BKA. A 253 stated that "Hugo" and
A 256 were not the same person, that "Hugo" had offered his services
at his own initiative and had not been invited or recruited. He stated
that at some point in time "Hugo" had come forward with the information
that he had obtained contacts with South American cocaine dealers, who
had offered him 6.000 German Marks per kilo imported cocaine if he
would organise storage facilities in Germany from where the imported
drugs could be further distributed and transported. It was on the basis
of that information that the investigation at issue, including the
creation of the Mertrans company, had started. As regards the
transaction with H.M., A 253 stated that all contacts with the
Columbian organisation had been made through "Hugo" and that the
contacts between the Columbian organisation and the drug purchasers had
been made directly between them, without passing via Mertrans. When at
some point in time Mertrans had made certain financial demands to the
Columbian organisation for its services, it was informed that its
requests would be met from the Netherlands. Subsequently, on
5 November 1990, a certain "Martin" called from the Netherlands
offering 500.000 Dutch guilders. "Hugo", in the presence of A 253,
spoke with "Martin" over the telephone in Spanish. During the
subsequent meeting in Venlo A 253 spoke directly with "Martin". Insofar
as "Martin" and "Hugo" spoke Spanish at that meeting, "Hugo" translated
from Spanish into German for A 253, although the latter had a passive
knowledge of Spanish and had understood the contents of the
conversation. At that meeting it became clear that "Martin" wished to
obtain 300 kilogrammes in three parts of 100 kilogrammes each. A 253
did not recall whether "Martin" had used the codeword of "balineros"
for cocaine and "verduras" for marihuana. A 253 further stated that he
had made written reports on all his activities to the officers in
charge of the investigation.
Following a question from the applicant's lawyer, A 253 stated
that the applicant had remained passive during the meeting on
6 November 1990, but that he had participated in the conversation that
took place on 12 November 1990, when the cocaine was delivered. A 253
stated that on that occasion "Martin", the applicant, "Hugo" and
himself discussed a delivery of 6.000 kilogrammes of marihuana. It was
agreed that "Martin" would provide a car, which A 253 and his partners
would then fill with marihuana and return to "Martin". They had also
discussed the delivery of the cocaine, but insofar as A 253 could
recall, only briefly in the form of statements such as "Is the cocaine
there" and "Yes".
A 256 stated before the investigating judge that he had nothing
to correct or add to his previous statement made to police on
13 November 1990. He further answered questions by the suspects'
lawyers.
The investigating judge further examined M., whose identity was
disclosed. He stated that the CRI had been informed of the BKA
investigation on 23 October 1990 and that on 26 October 1990 the CRI
informed the German authorities that the supervised deliveries in the
Netherlands could proceed. He further stated that the meetings on 6 and
12 November 1990 had been organised in agreement with the Venlo police
authorities. He also answered questions by the suspects' lawyers.
All witnesses refused to answer questions put by the suspects'
lawyers insofar as these questions concerned the identity, role,
status, function and remuneration of "Hugo".
Following two hearings, on 14 May and 18 July 1991 respectively,
the Regional Court (Arrondissementsrechtbank) of Roermond convicted the
applicant on 30 July 1991 of drug trafficking and sentenced him to
seven years' imprisonment. The applicant filed an appeal.
On 25 March 1992 a hearing took place before the Court of Appeal
(Gerechtshof) of 's-Hertogenbosch. The defence requested the Court to
summon "Hugo", D. - the German officer in charge of the BKA narcotics
department -, H. of the German public prosecution department at Mainz,
Germany, and G., V, and P., three Dutch police officers involved in the
operation.
After deliberating, the Court of Appeal rejected the request to
summon "Hugo". It observed that his name and address were not known to
the Dutch police and judicial authorities and that it was clear from
the statements of A 253, 256 and M. of 23 January 1991 before the
investigating judge that the German authorities did not wish to
disclose the identity of "Hugo" for policy reasons. Moreover, given
these witnesses' statements that they were not allowed to disclose
"Hugo"'s identity, role and functioning, the Court found it very
unlikely that "Hugo" himself would appear before the Court to answer
any questions on these points.
The Court of Appeal also rejected the applicant's request to hear
D. and H. It considered that the applicant would only have a valid
interest in examining these persons if they could state that he had
been provoked by them or committed the acts he was charged with under
their responsibility, as this could form the basis for a plea for the
inadmissibility of the prosecution or unlawfully obtained evidence. The
Court of Appeal found this not at all likely given the applicant's
statement that he had only acted upon the request of the co-suspect
H.M. and not following any act of "Hugo", A 253, A 256 or any other
person in Germany. In this respect the Court also had regard to the
statement of the co-suspect H.M. that he had acted at the request of
"a person from Amsterdam" who had given him the telephone number of a
drug supplier named "Hugo", and that he had subsequently called "Hugo".
Since H.M. had refused to provide any information as regards this
"person from Amsterdam", the Court did not find that an examination of
D. and H. would be useful for a clarification of the relations between
"Hugo" and the "person from Amsterdam".
The Court of Appeal granted the applicant's request to summon the
three Dutch police officers G., V. and P. The Court of Appeal further
decided to summon the investigating judge, who had examined A 253, A
256 and M. on 23 January 1991 in order to put certain questions in
respect of that examination.
The Court of Appeal further examined the applicant, who stated
that he had been approached by the co-suspect H.M. requesting him to
assist in a marihuana deal. He further admitted that he had been
present when H.M. handed over 500.000 Dutch guilders on
6 November 1990, that H.M. had shown him the money beforehand and that
H.M. was called "Martin" by the persons he and H.M. met on
6 November 1990. The applicant stated he had acted throughout at H.M.'s
request and that he had always assumed that the deal concerned soft
drugs as H.M. had told him so and in view of the amount of money paid
for the drugs.
On 8 April 1992 the Court of Appeal examined the investigating
judge, who stated that he knew the function and identity of A 253 and
A 256 and that he had found them to be reliable witnesses. He further
considered that they had given valid reasons for wishing to remain
anonymous, i.e. their normal professional usefulness and the danger of
reprisals (hun normale inzetbaarheid en gevaar voor represailles). He
also stated that A 253 and A 256 had stated in a preliminary meeting
with him before their actual examination that, if during the
examination they would be questioned about their identity, they would
not tell the truth. The Court of Appeal subsequently examined G., V,
and P., the three Dutch police officers whose examination had been
requested by the defence. At the request of the defence, the Court also
examined E., a police officer from The Hague. The defence was given the
opportunity of questioning the five witnesses heard.
On 6 July 1992 the Court of Appeal heard the applicant and the
final pleas, and subsequently closed its examination.
In its judgment of 20 July 1992 the Court of Appeal quashed the
judgment of 30 July 1991, finding that the Regional Court had
insufficiently dealt with certain arguments of the defence, and finding
that the Regional Court had admitted the statements of A 253 and A 256
before the police as evidence whereas the requirements for the use of
anonymous statements in evidence, as defined by the European Court of
Human Rights and the Dutch Supreme Court, had not been complied with.
After a full new examination of the case, the Court of Appeal
convicted the applicant of drug offences and, after having noted the
applicant's previous conviction for similar offences, sentenced him to
seven years' imprisonment. It based its conviction, inter alia, on the
statements of the applicant of 23 November 1990 before the police and
of 25 March 1992 before the Court of Appeal, the statements of A 253
and A 256 before the police and the investigating judge, the minutes
of the statements of the Dutch police officers involved in the
operation, reports of the Forensic Laboratory of the Ministry of
Justice and a statement made by the co-suspect H.M. before the police.
The Court of Appeal rejected the defence's argument that the
prosecution should be declared inadmissible as the investigation method
used, i.e. the sham transaction, was disproportionate to the aim
pursued, had incited the applicant to commit offences and had
insufficiently been supervised by the Dutch prosecution authorities.
The Court of Appeal found that, given the nature and scope of the
investigation, namely an organised international hard drug traffic, the
investigating authorities' choice of a sham transaction, provided this
did not incite the persons under investigation to commit other offences
than those originally intended, was reasonable and could not be
regarded as disproportionate. The Court of Appeal did not find it
established that the applicant or H.M. had been incited by A 253, A 256
or "Hugo" to commit any act other than those they had already intended
to commit and further found that none of the suspects involved had been
deprived of the possibility to withdraw from the planned transaction.
The Court of Appeal further did not find it established that the
investigation, insofar as the operation had taken place in the
Netherlands, had violated any Dutch norms.
As regards the use of the statements of the witnesses A 253 and
A 256, the Court of Appeal noted that the investigating judge was aware
of and had verified their identity and status as German police
officers, that the investigating judge had heard them under oath and
had found no reasons to doubt the reliability of these witnesses. The
Court of Appeal found that the investigating judge had examined these
witnesses with the required caution. It accepted the investigating
judge's finding as regards the reliability of these witnesses and
observed that it had used and assessed their statements with the
required caution.
Furthermore, the Court of Appeal, noting the investigating
judge's finding that the reasons put forward by these witnesses for
wishing to remain anonymous, i.e. their normal professional usefulness
and the danger of reprisals, were valid, and considering the nature of
the offences committed and the nature of the anonymous witnesses'
professional activities, found that they had justified their wishes to
remain anonymous. Finally, noting that the defence had been provided
with ample opportunity to question the anonymous witnesses, of which
the defence had in fact availed itself extensively, the Court of Appeal
did not find that the use in evidence of the statements of A 253 and
A 256 violated the applicant's right to a fair trial within the meaning
of Article 6 para. 1 of the Convention.
The applicant's appeal in cassation, in which he challenged the
Court of Appeal's findings concerning the admissibility of the
prosecution in respect of the investigation method used and concerning
the rejection of his request to summon "Hugo" as a witness, was
rejected by the Supreme Court (Hoge Raad) on 2 November 1993. The
Supreme Court accepted the Court of Appeal's findings on both points.
COMPLAINTS
The applicant complains under Article 6 paras. 1 and 3 (d) of the
Convention that the domestic courts rejected his requests to summon and
examine "Hugo" as a witness. He submits that, as the statements by A
253 and A 256 were largely based on what "Hugo" had told them, the
trial courts should not have used their statements as evidence without
having examined "Hugo". The applicant argues that also the co-suspects
in this case, H.M., E.G., maintained throughout the criminal
proceedings against them that it had been agreed with "Hugo" that the
delivery at issue would concern soft drugs, i.e. marihuana or hashish.
According to the applicant, "Hugo" was the only person who could
clarify this issue, as he was the only one who could indicate what H.M.
and himself had agreed upon in their coded telephone conversations and
which code word meaning which substance was used in these
conversations.
THE LAW
The applicant complains under Article 6 paras. 1 and 3 (d)
(Art. 6-1, 6-3-d) of the Convention that the domestic courts rejected
his requests to summon and examine "Hugo" as a witness. He states that,
since "Hugo" was not heard, it was unfair to use as evidence the
statements of A 252 and A 256.
Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention,
insofar as relevant, provides 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;
(...)."
The Commission recalls that, as a general rule, it is for the
domestic courts to assess the relevance of the evidence which the
parties seek to adduce. It is the task of these courts to assess
whether proposed evidence is relevant to the case or necessary for the
proper conduct of the proceedings, although their assessment can to
some extent be reviewed by the Convention organs on the basis of
Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention.
Article 6 para. 3 (d) (Art. 6-1, 6-3-d) of the Convention does not
require the attendance and examination of every witness proposed by an
accused, but it requires that witnesses proposed by the accused should
be called and examined "under the same conditions" as 0witnesses
against him or, in other words, that there should be full equality of
arms between the prosecution and the defence. The concept of "equality
of arms" does not, however, exhaust the content of Article 6 para. 3
(d) (Art. 6-1, 6-3-d), nor that of Article 6 para. 1 (Art. 6-1) of the
Convention. It has to be ascertained whether the proceedings,
considered as a whole, were fair as required by Article 6 para. 1
(Art. 6-1) of the Convention, of which the guarantees contained in
Article 6 para. 3 (d) (Art. 6-1, 6-3-d) form a specific aspect (Eur.
Court H.R., Vidal judgment of 22 April 1992, Series A no. 235, p. 32,
paras. 33).
The Commission notes that the prosecution authorities did not
have any more information about "Hugo" than the applicant and, like the
applicant, were not in a position to put any questions to him. It
follows that the Court of Appeal's refusal to summon "Hugo" as a
witness did not place the applicant at a disadvantage vis-à-vis the
prosecution. Consequently, there was no lack of equality of arms in
this respect.
Nevertheless, it is clear that "Hugo" was a central witness and
that a fair trial would normally have required that he should be heard
at the request of the defence.
The Commission notes that the German police officers, who were
examined by the Dutch police and the investigating judge, refused to
give any information about the identity, role, status, function and
remuneration of "Hugo", stating they were not authorised to do so. The
Commission further notes that the Court of Appeal rejected the
applicant's request to summon "Hugo", observing that his name and
address were not known to the Dutch police and judicial authorities,
that it was clear from the statements of A 253, 256 and M. of
23 January 1991 before the investigating judge that the German
authorities were not prepared to disclose the identity of "Hugo" for
policy reasons and that, in view of these circumstances, it was very
unlikely that "Hugo" would appear before the court in order to be
examined.
At the relevant time, "Hugo" was apparently not in the
Netherlands but on German territory and the Commission finds it a
reasonable assumption that he would not have voluntarily appeared
before the Dutch courts and that, moreover, the German authorities
would not have assisted in making him available as a witness in the
Netherlands. In these circumstances, the Commission considers that it
must be accepted as a fact that it was impossible to hear "Hugo" before
the courts in the proceedings against the applicant. The failure to
call him as a witness cannot, therefore, be considered as unfair but
merely reflects a factual impossibility.
It remains to be considered whether, in these circumstances, it
was unfair to use as evidence the statements of A 253 and A 256,
insofar as they conveyed information which they had obtained from
"Hugo".
In this respect, the Commission first notes that the applicant
does not complain of the fact that the identity of A 253 and A 256 was
not disclosed to the defence. It is clear that they were German police
officers and that they were heard under conditions which made it
possible for the defence to put questions to them. Article 6
(Art. 6) of the Convention cannot be considered to prevent a court from
using as evidence witness statements providing information about what
the witness has heard from a third person. It is another matter that
such information may often have a reduced value as evidence, in
particular where, as in the present case, that third person is not also
heard in the proceedings.
However, when determining the case against the applicant, the
Court of Appeal did not only rely on the statements of A 253 and A 256,
but they also had other important evidence at their disposal.
Moreover, the applicant himself had admitted participation in the
narcotics transactions, although he had stated that he had believed
that the drugs were soft drugs and not cocaine.
When examining the proceedings in their entirety, the Commission
cannot find that they violated the principles of fairness inherent in
Article 6 (Art. 6) of the Convention.
It follows that the application must be rejected as being
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 THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy