Verdam v. the Netherlands (dec.)

Information Note on the Court’s case-law 9

August 1999

Verdam v. the Netherlands (dec.) - 35253/97

Decision 31.8.1999 [Section I]

Article 6

Article 6-3-d

Examination of witnesses

Statements made by victims to the police taken as evidence for the trial: inadmissible

The applicant was arrested on suspicion of having raped three prostitutes, A, B and C. A fourth,D, reported to the police after the applicant's arrest that she had also been raped. D made her statement in the presence of the applicant’s lawyer who was able to question her. B and D recognised the applicant as the man who had raped them from a series of photographs shown to them by the police in the presence of the lawyer. C also recognised the applicant from the photographs but his lawyer was not there at the time. A DNA examination carried out during the investigation did not exclude his being guilty. He was eventually convicted of rape and attempted rape and sentenced to six years’ imprisonment. He lodged an appeal, requesting that B, C and D be heard as witnesses, which the court agreed to. However, the proceedings were adjourned several times, the witnesses having failed to turn up at the hearings. The police, at the court’s request, attempted to find them, but were unsuccessful. The Court of Appeal also convicted the applicant on the basis of evidence which included, inter alia, the statements made to the police by the victims.

Inadmissible under Article 6 § 3(d): The use as evidence of statements obtained at the stage of the police inquiry and the judicial investigation is not in itself inconsistent with this provision, provided the rights of the defence have been respected. These rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him or her either when the statement is made or at a later stage of the proceedings. In the circumstances, the applicant’s conviction of the rape of C and D was based, inter alia, on the statements made before the police. D was heard in the presence of the applicant’s lawyer, who was able to question her on that occasion. Although it would have been preferable that C and D testified in court, the authorities, despite their efforts, did not manage to secure their attendance. It was thus open to the court to take into account C’s and D’s statements before the police, especially as they could be corroborated by other evidence produced before it. Moreover, having regard to all the evidence used against the applicant, his conviction cannot be said to have been based “to a decisive extent” on the statements made by C and D to the police: manifestly ill-founded.

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This summary by the Registry does not bind the Court.

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