CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                        Application No. 11454/85                      by Slobodan KOSTOVSKI                      against the Netherlands           The European Commission of Human Rights sitting in private on 3 December 1986, the following members being present:              MM.    C. A. NØRGAARD, President                  E. BUSUTTIL                  G. JÖRUNDSSON                  G. TENEKIDES                  S. TRECHSEL                  B. KIERNAN                  A. WEITZEL                  J. C. SOYER                  H. G. SCHERMERS                  H. DANELIUS                  G. BATLINER                  H. VANDENBERGHE             Mrs   G. H. THUNE             Sir   Basil HALL             Mr.   F. MARTINEZ               Mr.   J. RAYMOND, Deputy 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 18 March 1985 by Slobodan KOSTOVSKI against the Netherlands and registered on 20 March 1985 under file No. 11454/85;           Having regard to   -        the Commission's decision of 2 December 1985 to bring the         application to the notice of the respondent Government         and invite them to submit written observations on its         admissibility and merits;   -        the observations submitted by the respondent Government on         25 February 1986 and the observations in reply submitted by         the applicant on 4 July 1986;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the application, as they have been submitted by the parties, may be summarised as follows.           The applicant is a Yugoslav citizen, born in 1953.   At present, he is detained in prison at The Hague, the Netherlands.   In the proceedings before the Commission, he is represented by Mrs. T. Spronken, a lawyer practising at Maastricht.           It appears that in August 1981, the applicant escaped from prison at The Hague where he was serving a prison sentence having been convicted by the Regional Court (Arrondissementsrechtbank) of Amsterdam on 4 June 1980.           On 1 April 1982, the applicant was arrested on suspicion of having participated in an armed bank robbery on 20 January 1982.           The applicant denied, and denies, the charges brought against him, but on 24 September 1982, the Regional Court (Arrondissements- rechtbank) of Utrecht convicted the applicant and sentenced him to six years' imprisonment.   The decisive evidence against the applicant consisted of statements by two witnesses who wanted to remain anonymous for fear of reprisals.   One witness was only heard by the police, the second witness also by both the investigating judge (Rechter-Commissaris) and his deputy.           According to the investigating judge, he only heard one of the two anonymous witnesses presented to him by the police because he could not guarantee the other's anonymity.   He did not identify the witness heard by him, but considered his fears to be well-founded, e.g. because of the fire-arms (including sub-machine-guns) found with the applicant and his co-accused, and because of his knowledge of a police report on the matter and of the dangerous nature of the applicant.           The court further took into account the fact that the applicant had previously been convicted for a similar offence.           The court noted that it could not examine the reasons for the witnesses' statements, and that it could not itself assess the witnesses' reliability.   However, the court considered that these statements could be admitted as evidence since they were complementary and mutually consistent.   Furthermore, since one of the witnesses had been considered to be very reliable by the police officer, reliable by the investigating judge and not unreliable by his deputy, the court had come to the conclusion that the applicant had in fact committed the offence he was charged with.           The applicant, thereupon, appealed to the Court of Appeal (Gerechtshof) of Amsterdam, which quashed the decision of the Regional Court on 27 May 1983 since it found that certain additional criminal offences were also proven.           The Court of Appeal also sentenced the applicant to six years' imprisonment.   The court considered that the statements of two anonymous witnesses could be admitted as evidence, in view of the submissions during the hearing by both the investigating judge and a senior police officer that the witnesses concerned had cause to fear reprisals, had made their statements out of their own initiative and had made a reliable, respectively reasonably reliable, impression on these officials.   In this respect, the court also took into account the mutual connection between the witnesses' statements.           The court further took into account the fact that the applicant had already been sentenced to a long prison-term for similar offences.           Subsequently, the applicant appealed to the Supreme Court (Hoge Raad).           The applicant, whilst invoking, inter alia, Article 6 of the Convention, claimed that the investigating judges had not ascertained the identity of the witnesses and that nearly all questions put forward by the defence during the hearing with a view to clarifying the reliability of the witnesses as well as their source of information had been prevented by the court, in order to safeguard the anonymity of the witnesses.           However, the Supreme Court rejected the applicant's appeal on 25 September 1984.   The Court held, inter alia, that the Court of Appeal had properly accounted for the fact that it had taken the statements of the anonymous witnesses into account.   It considered, furthermore, that the invoked provision of the Convention which, in general, ensured the equal treatment of defence and prosecution, did not prevent the Court of Appeal from applying certain restrictions on the rights contained therein, if this was considered necessary in the interest of the trial.           In his conclusion, the Attorney-General (Procureur-Generaal) considered that "...the entire situation, in particular in the light of Article 6 para. 3 (d) of the Convention, must soon lead to further reflection and the laying down of rights and obligations, as otherwise the confidence in the administration of justice will be seriously shaken."   COMPLAINTS           The applicant contends that during the criminal proceedings against him, the principle of equality of arms was violated, since witnesses against him were heard whilst neither he nor his lawyer were given the opportunity either to be present during this hearing or to have questions put to these witnesses.           The applicant further submits that the prosecution knew the identity and other circumstances of the witnesses, and was able to examine them and enquire after their source of information, but that he could not obtain any information on this.   The applicant claims that he was not given the opportunity to examine the contents of the witnesses' statements and that he was, therefore, unable to challenge them.           The applicant invokes Article 6 paras. 1 and 3 (d) of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 18 March 1985 and registered on 20 March 1985.           On 2 December 1985, the Commission decided to invite the respondent Government, pursuant to Rule 42 para. 2 b) of its Rules of Procedure, to submit written observations on admissibility and merits before 14 March 1986.   The Government's observations were submitted on 25 February 1986.           On 14 March 1986 the Commission decided to grant the applicant legal aid.           The applicant was invited to submit observations in reply before 12 May 1986.   At the request of the applicant, the President extended the time limit initially until 9 June 1986, and subsequently to 7 July 1986.   The applicant's observations were submitted on 4 July 1986.   SUBMISSIONS OF THE PARTIES   A.       The Government   I.       Article 6 paras. 1 and 3 (d)   a.       The complaint that neither the applicant nor his counsel were given the opportunity to have questions put to the witnesses has no factual basis.           In a letter of 2 June 1982 the investigating judge forwarded the applicant's lawyer a photocopy of the official report of the examination of an anonymous witness and gave the lawyer the opportunity to submit questions which the investigating judge could then put to the witness.   In a letter dated 14 June 1982 the applicant's lawyer sent the investigating judge a list of 14 questions.   The investigating judge then re-examined the witness on 22 June 1982.   On this occasion some of the questions were put to the witness and an answer given. With regard to the remaining questions the investigating judge stated as follows:           "The questions submitted, ... which remained unanswered, were in view of the necessity to safeguard the anonymity of the witness either not put by me, the investigating judge, or not answered by the witness for the same reason."   b.       The applicant's allegation that the prosecution was able to examine the witnesses and enquire after their source of information is unfounded since there is nothing to show that this actually happened. Instead, it must be assumed that with regard to the anonymous witnesses the prosecution had access to the same information as the defence, viz. the statements included in the documents in the file. In any case, the prosecution was not present at the examination of the anonymous witness;   the same applies to the suspect's lawyers.   In this respect it may be said that the prosecution and the applicant were accorded equal treatment in terms of their procedural position.   c.       The complaint by the applicant that he was not given the opportunity to apprise himself of the exact contents of the statements of the anonymous witnesses should also be rejected since the contents of these statements were used for no other purpose than their inclusion in an official report.   The defence was permitted access to the reports in question.   II.      Considerations with regard to views on anonymous witnesses         in the Netherlands           Cases of witnesses wishing to prevent a suspect learning their identity or that of a third party for fear of reprisals or other risks to themselves or such third parties or their immediate environment are relatively new in the Netherlands.   Such cases appear to be related to recent developments with regard to crime, which is becoming more violent, more aggressive and more "organised" (sometimes even at the international level).           The present Code of Criminal Procedure is not equipped to deal with this new situation.   Cases do occur in which suspects influence the course of justice by threatening witnesses.   Despite the principle of procedural equality between the prosecution and the suspect a situation can therefore arise in which the balance is tilted in favour of the suspect.   This means in practice that considerable ingenuity is sometimes required to ensure observance of the principle of equality between the prosecution and the defence while remaining within the bounds of the procedural rules.   The judiciary attempts to restore the balance as far as possible by allowing, under certain circumstances, the use of statements by anonymous witnesses as evidence.   In the course of time the courts have imposed various conditions on the admissibility of anonymous statements.   The Supreme Court of the Netherlands has indicated in a number of judgments that extreme caution should be used in assessing the worth of such statements as evidence (see, inter alia, the Supreme Court judgment of 4 May 1981, Dutch Jurisprudence 1982, 268).           In its judgment of 17 March 1981 (Dutch Jurisprudence 1981, 382) the Supreme Court ruled that police officers called to give evidence in respect of anonymous witnesses known to them may not be exempted from giving evidence.   It is therefore up to the judge to apply, if necessary, Section 288 of the Code of Criminal Procedure by ordering that questions which would reveal the identity of an anonymous witness are not answered.           In a number of judgments handed down on 25 September 1984 (including the one in question), the Supreme Court defined even more explicitly the obligation to indicate sufficient grounds for the use of anonymous statements as evidence in cases where the reliability of such statements is called in question by or on behalf of the suspect at the trial.   The judge must then give special reasons to justify his subsequent admission of such statements as evidence.           In the case in question the Supreme Court ruled that the judge had adduced sufficient reasons for his actions and, partly for this reason, upheld the decision of the court of appeal, while in another judgment handed down on the same day (Supreme Court, 25 September 1985, 427) it quashed a decision of the same appeal court on the ground that the reasons given for admitting anonymous statements as evidence were inadequate.           The problem of anonymous witnesses is recognised by the authorities.   On 20 September 1984 the Minister of Justice instituted an external advisory committee with the following mandate.   First, to investigate, in the light of a preliminary study carried out by the Netherlands Judicial Association (Nederlandse Vereniging voor Rechtspraak), the position in criminal proceedings of a witness who refuses to make a statement or is prepared to do so only if he receives assurances that his anonymity will be guaranteed, because he fears to reveal his own identity or that of another person to the suspect or persons connected with the suspect.   Second, to advise whether, in the light of its findings, it would be desirable to supplement or amend the Code of Criminal Procedure with regard to this question and, if so, to make proposals thereon.   III.     Outline of the relevant rules of evidence under Dutch law   a.       What constitutes evidence is laid down in Section 339 of the Code of Criminal Procedure:           i)       the judge's own observation;         ii)      statements made by the suspect;         iii)     statements made by a witness;         iv)      statements made by an expert;         v)       written documents.   b.       Section 342 para. 2 of the Code of Criminal Procedure contains the "unus testis nullus testis" rule.   Additional evidence is therefore required to corroborate the statement of a single witness.   c.       Since 1926 a body of case law has been built up admitting hearsay evidence (Supreme Court, 20 December 1927, Dutch Jurisprudence 1927, 85).   In this judgment the Supreme Court ruled, inter alia, that neither a literal nor a systematic inter- pretation of the law should lead to the exclusion of hearsay evidence; this would be contrary to the spirit of the (new) Code of Criminal Procedure.   d.       A deposition sworn in the presence of the investigating judge is deemed under Section 295 of the Code of Criminal Procedure to be a statement made by a witness at the trial.   In general witnesses are not examined under oath by the investigating judge.   A sworn deposition is taken only if the investigating judge considers it unlikely that a witness will be able to appear at the trial (Section 216 para. 1, of the Code of Criminal Procedure).   e.       A deposition made by a witness to the police and set out in an official report is deemed to be a written document within the meaning of the Code (Section 344 para. 1 (ii), Code of Criminal Procedure).           These rules clearly indicate that the Dutch law of criminal procedure is not governed by the principle of immediacy.   This is confirmed by case law.           In the present case therefore the evidence consisted of a statement by a witness and a written document.     IV.      Why the courts did not hear the witnesses in the absence of the applicant himself but in the presence of his counsel   a.       In the Dutch view a suspect's counsel is in principle not his proxy in judicial proceedings.   This means that in the absence of a suspect his counsel may not act for him in court proceedings, except in cases before the District Courts (kantongerechten) involving non-indictable offences, and, at the discretion of the court, in cases involving less serious indictable offences (not punishable by a prison sentence) before the Regional Courts as referred to in the Code of Criminal Procedure (Sections 270 and 398 (ii)).   This is confirmed by rulings by the Supreme Court, including:   Supreme Court 23 November 1971, Dutch Jurisprudence 1973, 293 and Supreme Court 26 February 1980, Dutch Jurisprudence 1980, 246.           In the latter decision the Supreme Court ruled that the guarantees laid down in Article 6 para. 3 (c) of the European Convention on Human Rights and Article 14 para. 3 (b) of the International Covenant on Civil and Political Rights mean that counsel should be allowed to appear and act in that capacity if, according to the court, there are cogent reasons which prevent the suspect from appearing in court and the court finds no grounds for suspending proceedings.           In the case in question there were no cogent reasons why the suspect could not appear in court.   b.       The Code of Criminal Procedure cites only three cases in which a suspect may be removed from the court and where his counsel may remain.   These are:   1.       Section 304:   dealing with questions relating to the mental                       state of the suspect;   2.       Section 303:   if the suspect refuses to remain silent or                       disturbs the conduct of the hearing;   3.       Section 292,   where a witness is examined in the absence of         para. 1:       the suspect.           The last-mentioned section offers no solution to the problem of the anonymous witness, since the suspect still has, under Section 285 para. 1, to be given the opportunity of putting questions to the witness at a later stage.   In the view of authoritative writers on the subject (Duisterwinkel/Melai) "the suspect's own right to examine the witness (under Section 285 para. 1) may not be curtailed by the application of Section 292.   Nor is the situation altered by the fact that the suspect's counsel remain in court and may question the witness."   This view finds general acceptance.           Failure to conform to the above results in the testimony being null and void (Section 292 para. 2).   c.       A solution to this problem is sought in hearing witnesses anonymously at the stage of the preliminary judicial investigation. In this event Section 216 of the Code of Criminal Procedure is applied. This investigating judge hears sworn testimony from a witness whom he assumes will be unable to appear in court.   It is accepted that this is the case when a witness fears reprisals.   Under Section 295 of the Code the deposition of such a witness is deemed to be a statement made at the trial.           Section 187 of the Code of Criminal Procedure is a rule of procedure which governs the conduct of the preliminary judicial investigation.   This section provides that if the investigating judge deems that there is good reason to assume that the witness will be unable to appear in court, he shall invite the public prosecutor and the suspect and his counsel to attend the examination of the witness, unless the examination has to be carried out without delay in the interest of the investigation.           This rule is not adhered to in practice in the case of the anonymous witness who fears reprisals.   By ruling in its judgment of 4 May 1981 (Dutch Jurisprudence 1982, 268) that failure to apply this rule did not render the testimony inadmissible, the Supreme Court in fact sanctioned this practice.   However, the suspect's counsel (and the prosecution) must be given an opportunity to comment on the official report of the hearing and if they so desire submit additional questions in writing.           It follows implicitly from the principle of equality of arms for prosecution and defence that if the suspect's counsel is not invited to attend the hearing the public prosecutor should not attend either.   This practice was followed in the present case.   d.       In addition to the statutory difficulties, outlined above, associated with temporarily removing the suspect from the court and having his counsel represent him during this period, the following is also of relevance.           The Dutch bar, in particular those lawyers who concentrate primarily on criminal cases, is of the opinion that the relationship of trust between the defence lawyer and his client demands that the former should not be placed in a position during judicial proceedings in which he acquires knowledge which he must keep secret from his client.   Since this position seems eminently reasonable, no attempt has been made in the Netherlands to solve the problem of anonymous witnesses by allowing the suspect's counsel to learn the identity (or to have a description of his appearance) of the witness if the suspect may not also have this knowledge.           The Netherlands Government is of the opinion that the application is manifestly ill-founded.   B.       The applicant           Article 6           The applicant recalls that he complained that the defence was not, or at least not sufficiently, able to challenge the statements against him by the anonymous witnesses.   Although the investigating judge gave the applicant the possibility to put questions to the anonymous witnesses, only one of these questions was in fact put to this witness by the investigating judge.   Similarly, during the hearings of the police officers and the investigating judges by both the regional court and the court of appeal, replies to virtually all questions were prevented.   The applicant therefore submits that no real possibility existed in the present case to put questions to the witnesses, this apart from the question whether the submission of written questions to the investigating judge meets the requirements of a fair trial under Article 6 of the Convention.           In this respect, the applicant notes that written questions do not contain the element of surprise which may be highly important in bringing out the truth.   Furthermore, the defence cannot assess the veracity of the witnesses' statements, for instance by visiting the place where something was supposed to have been witnessed.   In addition, the absence of direct confrontation leads to a situation in which the witness is more easily tempted not to tell the entire truth.           The Government denies that the public prosecutor was able to hear the anonymous witnesses and to assess the veracity of their declarations.   However, the applicant submits that the public prosecutor possesses all the information the police has concerning anonymous witnesses, as the public prosecutor is the hierarchical superior of the police, and is in charge of the investigations.   In view of this situation it cannot be maintained that the public prosecutor has, or can obtain, the same information as the defence. The applicant refers to the report by the External Advisory Committee referred to by the Government, which published its report on 11 June 1986.           In the present case the   public prosecutor did not attend the hearing of the anonymous witness by the investigating judge, but had no direct interest in doing so since he already possessed all information.   The applicant submits that if the prosecution wishes to use a statement against the accused made out of court, it can be said that the prosecution has already examined this witness.   On the basis of Article 6 para. 3 of the Convention this should result in the defence being able to hear this witness.   The hierarchical relationship between police and public prosecutor guarantees that the public prosecutor, at an early stage, can order the hearing of certain witnesses against the accused and have their statements at his disposal.           In reply to the submission of the Government that the defence was able to examine the procès-verbal containing the statement of the anonymous witnesses, the applicant submits that this procès-verbal does not contain an exact reproduction of the witnesses' statements, since the latter's anonymity must be guaranteed, whereas it is of supreme importance for the defence to have access to the exact statement.           The applicant contests the Government's view that the Dutch Code of Criminal Procedure is not based on the principle of immediacy, although he admits that certain exceptions to this principle are in fact made.           Development of case-law and opinion concerning anonymous witnesses in the Netherlands           The applicant refers to the decision of the Supreme Court of 4 May 1981 (Dutch Jurisprudence 1982, 268) in which it was decided that statements by anonymous persons may, with proper care, be used as evidence.   It further appears from later case law, that the defence must be given the possibility to submit questions, and that the judge must account for the use of an anonymous statement if the contents thereof are challenged.   Moreover, on 12 November 1985 (Dutch Jurisprudence 1986, 409), the Supreme Court explicitly decided that a conviction entirely on the basis of statements by anonymous witnesses was compatible with Article 6 of the Convention.           The applicant refers to the opinion of certain writers on the above cited case law.           The presence of counsel during the examination of an anonymous witness           The applicant contests the Government's view that the hearing of an anonymous witness in the absence of the accused but in the presence of the latter's lawyer would be incompatible with the Dutch legal system. Although the External Advisory Committee in its report of 11 June 1986 advised against such a solution, the applicant claims that there is a difference of opinion within the Dutch bar association on this matter.           The applicant submits that in case a decision is taken to hear anonymous witnesses, the interests of the defence are better served if counsel can be present than when such an examination is to take place in the absence of both the accused and counsel.           The External Advisory Commission has proposed to declare the statements of anonymous witnesses in principle inadmissible.           However, exceptionally, a witness may be heard in the absence of the applicant and his lawyer by the investigating judge, against which decision an appeal may be lodged with the regional court.   In his dissenting opinion a member of the committee drew attention to the fact that procedural guarantees assisted a judge in being cautious, and that the elimination of direct confrontation between the accused and the witness against him also eliminated one of the most important incentives to judicial cautiousness.           It appears from the Commission's case law, that the use of anonymous witnesses may be permissible under certain circumstances, but that this may not be the sole evidence.   Moreover, the Commission has accepted that there may be particular circumstances to hear a witness in the absence of the accused.   However, in that case the witness was heard in the presence of the accused's counsel, who was given the possibility to put questions.           In the present case, additional evidence consisted of the hearsay evidence of the investigating judge and the police.   However, these only repeated what others had told them.           The applicant submits that it is incompatible with Article 6 of the Convention that an accused is convicted exclusively on the basis of statements by anonymous witnesses, or the hearsay evidence of the police or investigating judge with regard to these anonymous witnesses, as happened in the present case.   THE LAW           The applicant has complained that he was not given the possibility to put questions to witnesses who were heard in the criminal proceedings against him, and he has invoked Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention in this respect.           Article 6 para. 1 (Art. 6-1) provides, inter alia:           "In the determination of ... any criminal charge against         him ... everyone is entitled to a fair and public hearing         ..."           Article 6 para. 3 (d) (Art. 6-3-d) provides:           "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 attendence and examination of witnesses on his         behalf under the same conditions as witnesses against him."           The Government have submitted that the applicant's lawyer was given the opportunity to submit certain questions to the witness heard by the investigating judge, that the prosecution and the defence were in an equal position, and that the defence had access to the reports in question.           The Commission, however, considers that the applicant's complaints raise complicated issues of fact and law which can only be resolved by an examination of the merits.   The application cannot, therefore, be declared manifestly ill-founded on the grounds invoked by the Government.           No other grounds for inadmissibility having been established, the application must be declared admissible.           For these reasons, the Commission, without in any way prejudging the merits,           DECLARES THE APPLICATION ADMISSIBLE.   Deputy Secretary to the Commission       President of the Commission             (J. RAYMOND)                               (C.A. NØRGAARD)