VISSER v. THE NETHERLANDS



                      AS TO THE ADMISSIBILITY OF

                      Application No. 26668/95

                      by Frederik Karel Paul Maria VISSER

                      against the Netherlands

     The European Commission of Human Rights sitting in private on

19 January 1998, the following members being present:

           Mr    S. TRECHSEL, President

           MM    J.-C. GEUS

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

           Mrs   G.H. THUNE

           MM    H. DANELIUS

                 F. MARTINEZ

                 C.L. ROZAKIS

           Mrs   J. LIDDY

           MM    L. LOUCAIDES

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

                 M. VILA AMIGÓ

           Mrs   M. HION

           MM    R. NICOLINI

                 A. ARABADJIEV

           Mr    M. de SALVIA, Secretary to the Commission

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 5 December 1994

by Frederik Karel Paul Maria VISSER against the Netherlands and

registered on 8 March 1995 under file No. 26668/95;

     Having regard to :

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

     the Commission;

-    the observations submitted by the respondent Government on

     28 March 1997 and the observations in reply submitted by the

     applicant on 26 May 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a Dutch citizen, born in 1947, and residing in

Soest, the Netherlands. Before the Commission he is represented by

Mr. H.H. Rieske, a lawyer practising in Amsterdam.

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

summarised as follows.

     In April 1988 preliminary judicial investigations were initiated

into allegations that the applicant and an accomplice, Mr D, had

intentionally deprived another person, Mr A, of his liberty on

30 September 1987. In a statement taken by the police and recorded in

a procès-verbal of 30 September 1987, Mr A said that he had been

kidnapped and beaten up by two men whom he did not know. He suspected

that they had acted at the orders of another man, Mr G, and that his

being kidnapped had constituted an act of revenge for a burglary which

he, Mr A, was rumoured to have, but had in fact not, carried out.

     On 17 August 1988 the applicant was summoned to appear before the

Regional Court (Arrondissementsrechtbank) of Utrecht on

18 October 1988. He was charged, inter alia, with having been an

accomplice to the offence of intentionally and unlawfully depriving

Mr A of his liberty and keeping him deprived thereof.

     On 1 June 1989 the Regional Court acquitted the applicant of this

charge, convicted him of another charge and sentenced him to a

partially suspended term of ten weeks' imprisonment less the time spent

in pre-trial detention. By judgment of the same date the Regional Court

also acquitted the applicant's co-accused, Mr D.

     Both the applicant and the Prosecutions Department filed an

appeal against the Regional Court's decision with the Court of Appeal

(Gerechtshof) of Amsterdam. No appeal was filed against the judgment

concerning Mr D.

     Following a public hearing on 4 April 1991, the Court of Appeal

quashed the Regional Court's judgment on 18 April 1991, convicted the

applicant, inter alia, of having deprived Mr A of his liberty and

sentenced him to one year's imprisonment less the time spent in pre-

trial detention. The Court of Appeal used the statement of a witness,

which was contained in a procès-verbal drawn up by two police officers

on 28 April 1988, in evidence. In this procès-verbal the witness was

not identified by name. The contents of the part of the procès-verbal

used by the Court read as follows:

     "The investigation has shown that several witnesses have seen

     Mr G, who was known to them, with two other persons in bars in

     Weesp in the night of 29 to 30 September. These witnesses also

     heard that these three persons made inquiries into the

     whereabouts of the victim Mr A.

     One witness was shown twelve photographs, including pictures of

     the suspects Mr D, [the applicant] and Mr G. The witness stated

     that he was 100% sure of recognising from the photographs the

     three named persons as being the persons who had made inquiries

     into the whereabouts of the victim on 29 and 30 September 1987

     in Weesp. The witness had subsequently seen that Mr D and [the

     applicant] had left together with the victim's brother, while

     Mr G had stayed behind in the bar in Weesp, where shortly

     afterwards this Mr G had been approached by [the applicant], who

     had returned in the meantime, and who took Mr G outside."

     The applicant filed an appeal in cassation against this judgment

with the Supreme Court (Hoge Raad).

     On 14 September 1992 the Supreme Court quashed the judgment of

the Court of Appeal. The Supreme Court considered that the way in which

the facts had been established by the Court of Appeal did not meet the

legal requirements. It recalled that the statement of an anonymous

witness could only be used in evidence if it had been taken down by a

judge who knew the identity of the witness, who had expressed his

opinion as regards the reasons for the witness's desire to remain

anonymous and this witness's reliability, and who had provided the

defence with ample opportunity to question the witness. The Supreme

Court added that it could not be said that the finding of guilt was to

a significant extent based on other evidence from non-anonymous

sources. The Supreme Court referred the case to the Court of Appeal of

The Hague.

     On 18 June 1993 a public hearing took place before this Court of

Appeal. The Court instructed the investigating judge (rechter-

commissaris) in Utrecht to hear the anonymous witness. This interview

took place on 13 September 1993. The investigating judge was aware of

the identity of the witness. In the procès-verbal of the interview the

judge noted that the statement of the witness appeared to be consistent

and that it corresponded to the statement given earlier to the police.

Furthermore the judge noted that the wish of the witness to remain

anonymous was based on the ground that the witness feared reprisals

since the offence with which the applicant had been charged and in

respect of which the witness was asked to testify had in itself

concerned an act of revenge. Moreover, the witness told the

investigating judge that one of the applicant's co-accused had a

reputation for being violent.

     A number of questions were put to the witness at the request of

the applicant's lawyer, who had submitted these questions to the

investigating judge. In reply to one of these questions the witness

said that when he had been interviewed by police, around 18 April 1988,

he had been handed a bundle of about fifteen photographs. He had taken

out three photographs of persons whom he had recognised. In reply to

a further question the witness stated that following a telephone

conversation with the investigating judge prior to the interview, he

had once had contact by telephone with one of the police officers who

had been involved in the investigation into the alleged offence.

     The applicant's lawyer attended this interview in a different

room. According to the procès-verbal of the interview, the

investigating judge twice gave the lawyer the opportunity to read

through the statement of the witness and to put questions, to be asked

by the investigating judge, to the witness, of which opportunity the

lawyer availed himself.

     On 29 September 1993 the Court of Appeal quashed the Regional

Court's judgment of 1 June 1989, convicted the applicant, inter alia,

of having deprived Mr A of his liberty and sentenced him to one year's

imprisonment less the time spent in pre-trial detention. It appears

from the Court's judgment that it accepted the reasons for the

anonymous witness's wish to remain anonymous and that it based its

finding of guilt on the following means of evidence:

-    a procès-verbal of 30 September 1987, drawn up by a police

officer, containing the statement of the victim Mr A;

-    a procès-verbal of 30 September 1987 containing a statement from

the police officers who had found Mr A to the effect that when they

were driving Mr A home the latter had recognised the car in which he

had been held and mistreated;

-    a procès-verbal of 30 September 1987 containing a statement from

the same police officers to the effect that they had found traces of

blood on the car indicated by Mr A and that they had arrested Mr G near

the car;

-    a procès-verbal of 20 October 1987 drawn up by the technical

investigation department and a report by a forensic laboratory

(Gerechtelijk Laboratorium) dated 14 December 1987 indicating that the

traces of blood which had been found on the inside and outside of the

car and on a revolver and jacket found inside the car could have come

from Mr A;

-    a procès-verbal of 14 March 1988 drawn up by a police officer and

a procès-verbal of 25 April 1988 drawn up by the officer who had been

in charge of a scent-association test which had been carried out with

a sniffer dog, to the effect that this dog had three times associated

the scent on the butt of the revolver which had been found in the car

with an object which had been held by the applicant;

-    the statement of the anonymous witness to the investigating

judge; and

-    the statement which the applicant had made at the hearing before

the Court of Appeal to the effect that he knew the co-accused Mr G and

Mr D well, that the car in question had been used by Mr G in the period

around 30 September 1987, that Mr D and he would regularly drive the

car and that the telephone which had been present in the car had been

registered in his name.

     The applicant filed an appeal in cassation with the Supreme

Court. He complained, inter alia, that insufficient facts and/or

circumstances had been adduced justifying the need for the witness to

remain anonymous and that the statement of the anonymous witness could

not be relied upon as it had been taken almost six years after the

alleged offence. The applicant further submitted that the series of

photographs from which the anonymous witness was said to have selected

the photograph of the applicant had not been put before the

investigating judge. Neither the investigating judge nor the defence

had therefore been in a position to assess the nature of the

photographs, the way in which they were presented or the certainty of

the recognition. The Supreme Court rejected the appeal in cassation on

7 June 1994.

COMPLAINT

     The applicant complains that the domestic courts violated

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

of an anonymous witness in evidence although this witness had been

interviewed by the investigating judge six years after the alleged

offence had taken place. Moreover, the applicant submits that the

manner in which the anonymous witness was heard infringed the rights

of the defence.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 5 December 1994 and registered

on 8 March 1995.

     On 27 November 1996 the Commission decided to communicate the

applicant's complaint concerning the use in evidence of a statement

made by an anonymous witness to the respondent Government and to

declare the remainder of the application inadmissible.

     The Government's written observations were submitted on

28 March 1997, after an extension of the time-limit fixed for that

purpose.  The applicant replied on 26 May 1997.

THE LAW

     The applicant complains that a statement made by an anonymous

witness was used in evidence against him. He invokes Article 6

(Art. 6) of the Convention which, insofar as relevant, provides as

follows:

     "1.   In the determination ... of any criminal charge against

     him, everyone is entitled to a fair and public hearing ... by a

     ... tribunal established by law.

     3.    Everyone charged with a criminal offence has the following

     minimum rights:

     ...

     d.    to examine or have examined witnesses against him and

     to obtain the attendance and examination of witnesses on his

     behalf under the same conditions as witnesses against him;

     ..."

     The Government submit that the criteria, defined by the European

Court of Human Rights, in order to assess whether statements from

anonymous witnesses may be used in evidence have been fully complied

with in the present case. Thus, the statement used had been made in the

presence of a judge who had ascertained the witness's identity. This

judge also gave his view of the witness's reliability and credibility,

and in doing so referred to the consistency of the statement made

before him with that which had been made to the police not long after

the incident. The Government argue that for this reason it cannot be

said that the long period of time which elapsed between the offence

taking place and the statement being made before the investigating

judge rendered this statement unreliable.

     The Government further point to the fact that the investigating

judge expressed his reasoned opinion of the witness's wish to remain

anonymous. Moreover, counsel for the applicant was present at the time

when the anonymous witness made his statement to the investigating

judge. Although he was sitting in a different room, counsel was given

the opportunity to have questions put to the witness, to read through

the witness's statement and then to have fresh questions put.

     The Government finally submit that the statement of the anonymous

witness was not the only evidence on which the Court of Appeal based

its conviction of the applicant.

     The applicant maintains that the hearing of the anonymous witness

by the investigating judge six years after the alleged offence did not

remedy the error made in the first instance proceedings. Moreover, the

manner in which the witness was heard did not do justice to the

applicant's right to a fair trial. Thus, the witness was not shown the

photographs again but was merely asked to confirm the statement he had

made before. Moreover, it appears that the witness had been in contact

with the police officers who had previously questioned him prior to the

interview with the investigating judge and it can thus not be excluded

that the police reminded him of what he had stated in April 1988.

     Counsel for the applicant was at no time given the opportunity

to see the witness and he was therefore unable to observe the witness's

demeanour during questioning. Nor was counsel given the opportunity to

express his views as to the validity of the witness's reasons for

wanting to stay anonymous. This was important since five and a half

years had passed since the witness had made the initial statement and

the co-accused, of whom the witness had said to be afraid, had already

been acquitted in 1988 and had never given any cause to fear that he

would resort to violence.

     The applicant finally submits that his conviction was, to a

decisive extent, based on the statement of the anonymous witness. The

other material used in evidence by the Court of Appeal did not contain

an indication of the guilt of the applicant but merely served to show

that the deprivation of liberty as such had taken place.

     The Commission notes in the first place that in the proceedings

before the Supreme Court the applicant did not explicitly complain of

the limited way in which the defence had been allowed to put questions

to the anonymous witness. The question thus arises whether the

applicant has complied with the requirement of exhaustion of domestic

remedies as laid down in Article 26 (Art. 26) of the Convention. The

Commission recalls, however, that this condition is fulfilled if the

complaint made before it has been raised at least in substance in the

domestic proceedings and that the condition does, therefore, not

necessarily require a particular reference to the Convention (cf. No.

11921/86, Dec. 12.10.88, D.R. 57, p. 81; No. 16278/90, Dec. 3.5.93,

D.R. 74, p. 93). Moreover, Article 26 (Art. 26) must be applied with

some degree of flexibility and without excessive formalism (cf. Eur.

Court HR, Hentrich v. France judgment of 22 September 1994, Series A

no. 296-A, p. 17, para. 30; and K.-F. v. Germany judgment of 27

November 1997, to be published in Reports 1997, para. 46).

     The Commission notes that the applicant complained to the Supreme

Court that there were insufficient reasons for maintaining the

witness's anonymity and that, as regards the photographs used to

identify the applicant, the defence had not had the opportunity to

observe the witness's demeanour. The Commission accepts that this

amounts to a complaint concerning the way in which the applicant or

counsel for his defence were able to examine a witness against him. In

the Commission's view, this amounts to a complaint of a violation of

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

Accordingly, the applicant must be considered to have satisfied the

requirement of exhaustion of domestic remedies.

     Having regard to the parties' submissions and the case-law of the

Convention organs, the Commission considers that the present

application raises complex questions of fact and law which require an

examination of the merits. This complaint cannot, therefore, be

declared inadmissible as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

grounds for inadmissibility have been established.

     For these reasons, the Commission, by a majority,

     DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without

     prejudging the merits of the case.

        M. de SALVIA                          S. TRECHSEL

         Secretary                             President

      to the Commission                     of the Commission

 

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