VERHOEK v. THE NETHERLANDS

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54445/00
by Johan VERHOEK
against the Netherlands

The European Court of Human Rights (Second Section), sitting on 27 January 2004 as a Chamber composed of

MrJ.-P. Costa, President,
MrA.B. Baka,
MrL. Loucaides,
MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen,
MrM. Ugrekhelidze, judges,
and Mr T.L. Early, Deputy Section Registrar,

Having regard to the above application lodged on 5 October 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Johan Verhoek, is a Netherlands national, who was born in 1954 and has no known fixed abode in the Netherlands. He is represented before the Court by Mr M. Moszkowicz Sr., a lawyer practising in Maastricht.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  Events prior to the criminal proceedings against the applicant

In 1991 a combined fiscal and criminal investigation under the code name Kolibrie (hummingbird) was opened into a criminal organisation allegedly engaged in large-scale shipment of drugs from Pakistan to the Netherlands, the Azores and Canada. For this purpose an investigation team was created composed of police officers, fiscal investigation officers and public prosecutors (the Kolibrie-team). Over the years numerous witnesses and suspects were questioned, requests for mutual legal assistance were made to, inter alia, Paraguay, Sweden, the Bahamas, Spain and Switzerland, rafts packed with drugs were seized in Canada, a search operation was carried out in co-operation with the navy and barrels filled with drugs were salvaged by divers off the coast of the Azores.

The investigation concentrated, inter alia, on the following shipments:

        the shipment of about 20,000 kilograms of marihuana to the Netherlands aboard the Aquarius/Moana B;

        the shipment of about 60,000 kilograms of marihuana to the Netherlands and Canada aboard the Lukas;

        the shipment of about 120,000 kilograms of marihuana to Canada and the Azores aboard the Pacific Tide/Giant 4.

In June 1993 a certain K., who was under investigation for his alleged participation in the Pacific Tide/Giant 4 shipment, gave a statement to a Netherlands public prosecutor about one of these shipments. At the time he was being detained in France, where he had been convicted of involvement in another shipment of drugs. He indicated that he was willing to make further statements in exchange for an early extradition to the Netherlands. After he had served his prison sentence in France, K. spent several months in detention pending extradition and in July 1995 he arrived in the Netherlands. He was detained on remand on suspicion of participation in the above-mentioned shipments of drugs. He made further statements to the police. Seven of these statements consisted of falsehoods. According to K., his statements contained falsehoods because he did not trust his lawyer. In August 1995 a written agreement was concluded between K. and the public prosecutors T. and W. According to the agreement, K. undertook to make truthful statements about the criminal offences of which he had knowledge without relying on his right to remain silent and to testify before a judge if requested to do so. In exchange for his statements he was released from detention on remand and was given an undertaking that if the prison sentence imposed on him exceeded the time he had already spent in detention pending extradition and detention on remand, the sentence would not be executed. Furthermore, the public prosecution service (openbaar ministerie) undertook to take appropriate measures to safeguard his safety as far as possible. If K. reneged on his obligations, the prosecution service reserved the right to use his statements and would no longer be bound to comply with its part of the agreement.

Thereupon, K. continued to make detailed statements about the preparation for and the carrying out of the shipments of drugs as well as about the people involved, including himself and the applicant.

In 1995 the lawyers of a certain A., a suspect in the Kolibrie investigation, contacted the public prosecution service. A. was aware of the fact that he was under investigation in the Netherlands and indicated that he was interested in talking to the prosecution service. An agreement between A. and the public prosecutors T. and W. was concluded and was consigned to writing. A. undertook to make truthful statements about the criminal offences of which he had knowledge without relying on his right to remain silent and to testify before a judge if requested to do so. In exchange, he was enabled to trade off any criminal prosecution in the Netherlands in respect of the criminal offences to which he had confessed by making a payment of 1,800,000 Netherlands guilders (NLG) (820,000 euros (EUR)). The public prosecution office undertook to inform the authorities of several other countries about A.’s co-operation. The prosecution service reserved the right to use A.’s statements and not to comply with its part of the agreement if A. reneged on his obligations. A. made 23 statements about the organisation of the drugs shipments and the people involved, including himself and the applicant. The first seven statements contained demonstrable falsehoods.

K. and A. were also questioned by the United States Drugs Enforcement Administration (“DEA”) about several shipments of drugs.

In January 1996 the applicant, who was by then suspected of being one of the ringleaders of the criminal organisation responsible for the shipments, was arrested and detained on remand.

2.  The criminal proceedings against the applicant

The applicant was charged with membership of a criminal organisation and participation in the shipment of drugs aboard the Aquarius/Moana B, the Lukas and the Pacific Tide/Giant 4. Between 22 April 1996 and 24 January 1997, 29 hearings were held before the Regional Court (arrondissementsrechtbank) of Amsterdam. On 7 February 1997 the Regional Court convicted the applicant of all charges and sentenced him to six years’ imprisonment. The applicant lodged an appeal and between 20 June 1997 and 16 January 1998, 20 hearings were held before the Court of Appeal (gerechtshof) of Amsterdam.

In the course of the proceedings before the Regional Court and the Court of Appeal the following relevant events occurred:

K. and A. were questioned extensively before the investigating judge, before the Regional Court and before the Court of Appeal about their motives for testifying, about the falsehoods in their initial statements, about the agreements reached with the public prosecution service and about the contents of their statements. K. was also questioned about the course of events during his imprisonment in France in 1993.

Both K. and A. claimed the right to remain silent in respect of certain questions put by the defence. After having heard the arguments of K. and A. as well as the submissions of the defence and of the prosecution, the domestic courts ordered that K. and A. answer most of these questions. They were excused from answering some questions relating to their contacts with the DEA and their financial situation, since replying to these questions was considered likely to incriminate or endanger them.

Numerous other witnesses were questioned, inter alia, business and personal contacts of K. and A., about the latter witnesses’ reliability and credibility. A French investigating judge was questioned about K.’s situation in 1993. Furthermore, two law professors and an expert who had made a comparative law study on agreements with witnesses were extensively questioned by the Regional Court about all manner of legal issues relating to this kind of agreement. The public prosecutors T. and W. were questioned before the Court of Appeal about the course of the investigation, the agreements with K. and A. and their contacts with several other witnesses.

The Court of Appeal rejected the defence’s request to question Maître Chégin, K.’s lawyer in France in 1993, being of the opinion that his testimony could not have any bearing on any decision to be taken in the case against the applicant. The Court of Appeal reasoned in this connection that the questions which the defence wanted to put to him concerned the agreement concluded between K. and the public prosecution service in August 1995, whereas Maître Chégin had been K.’s lawyer in 1993.

In the course of the proceedings before the Regional Court it became clear that the public prosecution service and K.’s lawyer, Van G., had been in contact and had exchanged correspondence relating to various financial aspects of the agreement concluded between the public prosecution service and K. Part of this correspondence was added to the case file and K., the public prosecutors T. and W. as well as Van G. were questioned before the Court of Appeal about their correspondence.

During the hearings and in their pleadings before the Regional Court and the Court of Appeal, the defence extensively challenged the lawfulness of the agreements and their contents, sought to cast doubt on the credibility of the witnesses K. and A. and complained about the withholding of information relating to the financial aspects of the agreement with K. and the fact that the witnesses had been excused from answering certain questions in spite of the condition in the agreements that they would not invoke their right to remain silent. The defence further alleged that the prosecution had acted in bad faith and had tried to mislead both the defence and the judges on several occasions.

In a judgment of 30 January 1998 the Court of Appeal quashed the Regional Court’s decision, convicted the applicant on all charges and sentenced him to five years and six months’ imprisonment and a fine of NLG 1,000,000 (EUR 453,000).

The judgment contained a lengthy legal analysis of the compatibility of the agreements concluded between the public prosecution service and the witnesses K. and A. with Netherlands law, the political developments on this issue, the principles of proper conduct of proceedings and the requirements of Article 6 of the Convention. The Court of Appeal concluded that the agreements were permissible and lawful except for the undertaking made to K. to the effect that he would not have to serve a possible prison sentence. The Court considered:

“The public prosecution service is free to make decisions about the investigation and prosecution of criminal offences, including the giving of an undertaking to demand that a certain penalty be imposed. The public prosecution service is not free to assume the authority that any penalty which might be imposed on K. by a judge would not have to be executed... The decision to include this undertaking in the agreement with K. is thus ... not lawful. This unlawfulness ... however, is not of such a nature that the prosecution case against the applicant should be declared inadmissible. The present criminal proceedings are characterised by the fact that, for the first time, the conclusion of agreements with co-suspects has been submitted for the full consideration of a judge. No plausible grounds have been made out for concluding that the public prosecution service acted in bad faith, and thus intentionally breached the law, merely in order to frustrate the interests of the integrity of criminal proceedings. Nor have plausible grounds been made for concluding that the public prosecution service entered into the impugned undertaking with the purpose of acting in contempt of the decision of the judge in the present case.”

Although it decided that the prosecution of the applicant was not barred, the Court of Appeal considered that the unlawful undertaking made to K. was one of the factors which should lead to a reduction of his sentence from the seven years’ imprisonment it would have imposed, to five years and six months. The Court of Appeal considered that the remainder of the agreements was permissible under Netherlands law and that the conclusion of the agreements had neither violated the principles of the proper conduct of proceedings nor the applicant’s right to a fair trial. It proceeded to examine whether the statements of K. and A. could be used in evidence:

“The extent to which the statements of K. and A. may be used in evidence nevertheless requires further examination. It has to be examined whether K. and A. made their statements in the absence of pressure or constraint. Partly in view of the agreements underlying the statements, consideration should also be given to the question whether the defence had the opportunity adequately to scrutinise the statements of K. and A.

Such further examination is also necessary because the reliability and credibility of the statements of K. and A. may have been adversely affected by what they felt obliged to do or by what they deemed was in their own best interests, given the contents of the agreements with the public prosecution service. In addition, it should be borne in mind that these witnesses stand accused of offences relating to more or less the same set of facts as the defendant.”

Accordingly, the Court of Appeal went on to examine closely the reliability of K. and A. and the credibility of their statements. In this context, it had regard to the position and personality of both K. and A., the possibilities which the defence had had to examine their statements, the contents of these statements, the other evidence, the impression both witnesses had given the court as well as the applicant’s response to K.’s and A.’s statements. The Court of Appeal considered that their statements were detailed and disclosed concrete reasons for their knowledge. Although K. and A. did not know each other, their statements corresponded and were corroborated by the statements of four other witnesses as well as by other evidence. The Court of Appeal also considered that the applicant had not submitted any facts to challenge the statements of K. and A. Taking these considerations into account, and stating explicitly that this matter had to be treated with particular caution (bijzondere behoedzaamheid), the Court of Appeal found that the statements made by K. and A. were reliable and credible.

The Court of Appeal further considered:

“[The] principles of the proper conduct of proceedings imply above all that the defence, confronted with an agreement concluded by the public prosecution service with a witness, be given complete disclosure – with a view to the exercise of the rights of the defence – about the existence of the agreements, the manner of their conclusion as well as their contents, and also that the defence be given every opportunity to challenge the manner of conclusion and the contents of the agreements.

These requirements have been completely met. The existence of the agreements and the identity of K. and A. were disclosed from the outset. The agreements were put down in writing and were included in the case file together with all relevant documents. In the presence of the defence, K. and A. have been questioned as witnesses on this issue at every stage of the proceedings, and [the prosecutors] T. and W. have been questioned about it at the trial on appeal. It has appeared that no relevant difference of opinion exists between the prosecutors and K. and A. about the meaning of the agreements and the way in which they were concluded. Even apart from that, the defence has been enabled to obtain all necessary information concerning the agreements.”

With regard to the complaint that information about the negotiations between the public prosecution service and K.’s lawyer concerning the financial aspects of the agreement had initially been withheld, the Court of Appeal considered that the applicant had been able to raise this issue both before the Regional Court and the Court of Appeal and to have it examined fully: part of the correspondence between the public prosecution service and Van G. had been added to the case file and counsel for the defence had been able to question K., Van G. and the public prosecutors W. and T. on this issue. The allegation that the prosecution had intentionally misrepresented the amount of the financial reward promised to K. as well as the contents of the negotiations was dismissed as being implausible.

The Court of Appeal further dismissed as unfounded a number of other accusations made by the defence to the effect that the public prosecution service had intentionally violated the rights of the applicant. It convicted and sentenced the applicant as set out above. Apart from the statements made by K. and A., the Court of Appeal also relied on the statements of nine other witnesses, financial documents, several official reports of police officers and the results of the examination of samples of drugs.

The applicant lodged an appeal on points of law with the Supreme Court (Hoge Raad), submitting an extensive statement of grounds of appeal.

The Supreme Court gave judgment on 6 April 1999. It dismissed the appeal in its entirety.

In response to seven complaints concerning the contents and conclusion of the agreements with K. and A., and with reference to its own case-law (decision of 30 June 1998, Nederlandse Jurisprudentie – Netherlands Law Reports – 1998, no. 799) and to a number of Commission decisions (X. v. the United Kingdom, no. 7306/75, Commission decision of 6 October 1976, Decisions and Reports 7, p. 115; Salmon Meneses v. Italy, no. 18666/91, Commission decision of 30 November 1994, unreported; and Flanders v. the Netherlands, no. 25982/94, Commission decision of 15 January 1996, unreported), the Supreme Court reiterated that, as long as the conclusion of agreements was not regulated by law, the question to be examined was whether the actual circumstances of every case were compatible with the fundamental rights of an accused as guaranteed by Article 6 of the Convention and with the principles of the proper conduct of proceedings derived from, inter alia, Article 6 of the Convention. Noting that the reliability of statements of a suspect in exchange for promises by the prosecution may be adversely affected by what a witness feels obliged to do or by what he or she deems to be in their own best interest, it considered that this kind of witness should be questioned by a judge, preferably in open court, and, where the credibility of a witness was challenged, it should appear clearly from the trial courts’ judgments that this issue had been examined.

The Supreme Court upheld the decisions of the Court of Appeal regarding the agreements and dismissed ten other complaints, adopting mainly summary reasoning.

B.  Relevant domestic law and practice

In the early 1990s serious concerns arose over the methods of criminal investigation used in cases concerning organised crime. A parliamentary commission of inquiry (parlementaire enquêtecommissie) was instituted, which presented its final report on 1 February 1996. In this report agreements concluded with suspects testifying against co-accused were criticised. The commission was of the opinion that these kinds of agreements should be explicitly regulated by law and should in no event be allowed to lead to complete immunity from prosecution. The Minister of Justice subscribed to this opinion and legislation is now under preparation to regulate agreements with criminal witnesses.

Article 29 of the Code of Criminal Procedure (Wetboek van Strafvordering), insofar as relevant, provides that a suspect is not obliged to reply to questions put to him or her by a judge or investigating officer.

Article 219 of the Code of Criminal Procedure provides that a witness is allowed to refrain from answering questions if replying to those questions would expose him or her to the risk of a criminal conviction.

COMPLAINTS

The applicant complained under Article 6 of the Convention that the conclusion and contents of the agreements between the public prosecution service and the witnesses K. and A., as well as the subsequent use in evidence of the statements obtained in this manner, violated his right to a fair trial, in particular the principle of equality of arms, in that:

        the agreements lacked a legal basis and were incompatible with the recently expressed opinion of the legislator concerning agreements with criminal witnesses;

        the undertaking given by the public prosecution service to K. relating to non-execution of a prison sentence was found to be unlawful;

        the prosecution had withheld information regarding various financial promises made to K.;

        the agreement contained the condition that K. and A. would not rely on their right to remain silent – these witnesses were thus not free from pressures and constraints when making their statements; moreover, as they were subsequently nevertheless excused from replying to a number of questions put by the defence, the applicant was not sufficiently able to challenge the agreements and the defence was put at a disadvantage vis-à-vis the prosecution;

        the statements of K. and A. should have been considered unreliable, since the (manner of) conclusion of the agreements left K. and A. at the mercy of the prosecution and since they admitted to having lied in their initial statements.

The applicant also complained that the public prosecution service acted in bad faith in all of the aforementioned matters, bearing in mind, moreover, that his conviction rested almost entirely on the statements of K. and A.

He finally complained, also under Article 6 of the Convention, about the refusal of the national courts to hear Maître Chégin as a witness.

THE LAW

The applicant complained that his right to a fair trial as guaranteed by Article 6 of the Convention was violated by the conclusion and contents of the agreements made by the prosecution authorities with the witnesses K. and A. and by the use in evidence of the statements subsequently obtained from these witnesses. Article 6 of the Convention, in so far as relevant to the present case, 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: ...

(b)  to have adequate time and facilities for the preparation of his defence; ...

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”

According to the Court’s established case-law, the guarantees of paragraph 3 of Article 6 of the Convention are specific aspects of the right to a fair trial set forth in Article 6 § 1 of the Convention (see, among other authorities, Asch v. Austria, judgment of 26 April 1991, Series A no. 203, § 25, and more recently S.N. v. Sweden, no. 34209/96, § 43, ECHR 2002‑V). The Court will therefore examine the applicant’s complaints with regard to the overriding principle of fairness set out in that provision.

The Court reiterates at the outset that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Garcìa Ruiz v. Spain [GC], judgment of 21 January 1999, no. 30544/96, § 28, ECHR 1999-I). It is not the task of the Court to determine, as a matter of principle, whether particular types of evidence – for example unlawfully obtained evidence – may nevertheless be admitted in evidence. The question which must be answered is whether the proceedings in their entirety, including the way in which evidence was taken, were fair (see Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V).

The Court’s case-law further establishes that it is a fundamental aspect of the right to a fair trial that criminal proceedings should be adversarial and that there should be equality of arms between the prosecution and the defence. This does not mean that the parties must be put in exactly the same position as each other. This principle does, however, require that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party (see, among other authorities, Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 60, ECHR 2000‑II).

Finally, the Court has previously held that the use of statements made by witnesses in exchange for immunity or other advantages may put in question the fairness of the hearing granted to an accused and is capable of raising delicate issues since, by their very nature, such statements are open to manipulation and may be made purely in order to obtain advantages or for personal revenge. However, the use of this kind of statement does not in itself suffice to render the proceedings unfair (see Erdem v. Germany (dec.), no. 38321/99, 9 December 1999; X. v. the United Kingdom, cited above; Flanders v. the Netherlands, cited above; and, mutatis mutandis, Mambro and Fioravanti v. Italy, no. 33995/96, Commission decision 9 September 1998, unreported).

Turning to the circumstances of the present case, the Court observes that the public prosecution service concluded agreements with the applicant’s co-accused K. and A. and that statements obtained from them were used in evidence against the applicant. The applicant has raised a number of complaints relating specifically to the conclusion and contents of these agreements and to the use in evidence of K.’s and A.’s statements. The central question for the Court, however, is, as stated above, whether the proceedings as a whole were fair which, in a case like the present one, requires the existence of fair procedures to examine the admissibility and test the reliability of the disputed evidence including an adequate and proper opportunity for the applicant to challenge the evidence adduced and the observations filed by the prosecution.

In this context the Court notes in the first place that the defence was aware of the agreements and of the identity of both K. and A., and that the proceedings were conducted in such a way as to enable the trial courts as well as the defence ample opportunity to examine the agreements and the credibility of K. and A. Both men were questioned extensively by both the trial judges and the defence at every stage of the proceedings. In addition, the public prosecutors T. and W. were questioned about the agreements and about their contacts with K. and A. Three experts were also heard about the legal aspects of the agreements, and several relations of K. and A. were questioned about their reliability and the credibility of their statements. The applicant was thus provided with a considerable amount of relevant information giving him ample opportunity to challenge not only the conclusion of the agreements, but also the reliability of K. and A. and the credibility of their statements. This finding is not affected either by the fact that some questions put to K. and A. remained unanswered or by the fact that information concerning the financial negotiations with K.’s lawyer was not disclosed from the outset. The few unanswered questions, if relevant at all, were not linked to the charges and the finding of the national courts that there existed pertinent interests for excusing the witnesses from replying to those questions has not been challenged. With regard to the financial negotiations, the Court notes that part of the correspondence between K.’s lawyer and the public prosecution service was added to the case file, and that the applicant was given the possibility to question K., Van G. and the public prosecutors W. and T.  Therefore, the Court considers, as did the Court of Appeal, that the defence was provided with an adequate and proper opportunity to examine those negotiations.

In sum, the Court concludes that the applicant was provided with a fair and effective opportunity to challenge the agreements concluded with K. and A. and the statements made by them. The fact that the national courts rejected the arguments of the defence makes no difference.

Secondly, and with respect to the way in which the national courts dealt with the issue, the Court observes that during the hearings as well as in their judgments these courts showed that they were well aware of the dangers, difficulties and pitfalls surrounding agreements with criminal witnesses. In the judgments all aspects of the agreements were extensively and carefully scrutinised, with due attention being paid to the numerous objections raised by the defence. It was thus found that the prosecution service had sufficiently informed the defence and the courts about the agreements and that the allegations of the defence relating to intentional deception by the prosecution service were unfounded. Although it was found that the agreements themselves did not violate Netherlands law, the Court of Appeal agreed with the defence that the public prosecution service had exceeded its authority in respect of the undertaking given to K. relating to the non-execution of any prison sentence that might be imposed on him. The courts further displayed extreme caution in their assessment of the admissibility of the statements of K. and A. and they provided extensive reasoning as to why they considered these statements credible and reliable in spite of the doubts raised by the defence and in spite of part of the agreement concluded with K. having been found unlawful.

With regard to the complaint about the refusal of the national courts to hear Maître Chegrin as a witness, the Court recalls that Article 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 to hear a witness (see the S.N. judgment, cited above, § 44). The Court notes that, after having heard the arguments of both the prosecution and the defence, the Court of Appeal explained why it deemed the hearing of Maître Chégin unnecessary. Having regard to the reasoning adopted by the Court of Appeal in this context, the refusal to question this witness did not deprive the applicant of a fair trial.

The Court concludes that it does not appear that the applicant’s conviction was based on evidence in respect of which he was not, or not sufficiently, able to exercise his defence rights under Article 6 §§ 1 and 3 of the Convention. Furthermore, noting that the applicant was convicted following adversarial proceedings in the course of which he was given ample opportunity to state his case, to challenge the evidence before the trial courts and to submit whatever he found relevant for the outcome of the proceedings, the Court finds no indication that the criminal proceedings against the applicant fell short of the requirements of Article 6 of the Convention as regards fairness of proceedings.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

T.L. EarlyJ.-P. Costa
              Deputy RegistrarPresident

 

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