CEDH · CASELAW;REPORTS;ENG — 12 février 1990

.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 }  Application No. 13143/87   T.   against   the NETHERLANDS   REPORT OF THE COMMISSION   (adopted on 12 February 1990)   TABLE OF CONTENTS                                                           page                 INTRODUCTION   (paras. 1-5)                    1   PART I.      STATEMENT OF THE FACTS (paras. 6-11)          3   PART II.     SOLUTION REACHED (paras. 12-18)               4             INTRODUCTION   1.       This Report relates to Application No. 13143/87 introduced by T. against the Netherlands on 10 August 1987 under Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms.   The application was registered on 13 August 1987.   2.       The applicant was represented before the Commission by Mr. Vincent Kraal, a lawyer practising in Amsterdam.   The Government of the Netherlands were represented by their Agent, Ms.   Dorothea S. van Heukelom, Ministry of Foreign Affairs, The Hague.   3.       On 9 November 1989 the European Commission of Human Rights declared the application admissible*.   The Commission then proceeded to carry out its task under Article 28 para. 1 of the Convention** which provides as follows:   "In the event of the Commission accepting a petition referred to it:   (a)      it shall, with a view to ascertaining the facts, undertake together with the representatives of the parties an examination of the petition and, if need be, an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities, after an exchange of views with the Commission;   (b)      it shall at the same time place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for Human Rights as defined in this Convention."   4.       The Commission found that the parties had reached a friendly settlement of the case and on 12 February 1990 it adopted this Report which, in accordance with Article 28 para. 2 of the Convention**, is confined to a brief statement of the facts and of the solution reached.   _______________   *        This decision is public and can be obtained from the         Commission's Secretary.   **       As amended with effect from 1 January 1990.     5.       The following members of the Commission were present when the Report was adopted:                MM.   C. A. NØRGAARD, President                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES   PART I   STATEMENT OF THE FACTS   6.       The applicant is a Dutch citizen, born in 1946.   During the procedure before the Commission he was detained in a prison in The Hague.   7.       In the course of a criminal investigation regarding narcotics offences, a Dutch police officer, in February-March 1984, heard a number of witnesses in Malaysia.   Some of the declarations made by these persons implicated the applicant, who was therefore arrested on 30 August 1984.   8.       In the subsequent criminal proceedings before the Regional Court (Arrondissementsrechtbank) of Amsterdam the applicant requested, inter alia, that the case be referred back to the investigating judge in order to allow this judge to hear under oath the persons who had testified before the police officer and in order to ensure the rights of the defence during such further investigation.   9.       On 1 February 1985 the Regional Court convicted the applicant and sentenced him to ten years' imprisonment.   The applicant appealed to the Court of Appeal (Gerechtshof) of Amsterdam.   By judgment of 16 July 1985, the Court of Appeal confirmed the conviction and sentence on the basis of the evidence given before the police officer in Malaysia and on the applicant's admission at the trial that he bore the nickname "Tiger".   The Court of Appeal held, inter alia, that the witness testimony concorded in substance with what the witnesses had testified before the investigating judge of The Hague in another case and that, therefore, the interests of the defence did not make a further investigation by an investigating judge necessary.   10.      The applicant appealed in cassation to the Supreme Court (Hoge Raad), which, in its judgment of 17 February 1987, rejected the appeal as unfounded.   11.      Before the Commission the applicant complained that he was refused the right to question the witnesses against him in the course of a supplementary judicial investigation.   He alleged that his conviction was completely based on the testimony of witnesses whom he could not examine, and that thereby the courts violated Article 6 paras. 1 and 3 (d) of the Convention.   PART II   SOLUTION REACHED   12.      Following its decision on the admissibility of the application, the Commission placed itself at the disposal of the parties with a view to securing a friendly settlement in accordance with Article 28 para. 1 (b) of the Convention and invited the parties to submit any proposals they wished to make.   13.      In accordance with its usual practice, the Commission instructed its Secretary to contact the parties for this purpose.   14.      By letter of 22 November 1989 the applicant submitted a proposal to the effect that, if the Government would suspend the further execution of his prison sentence and remit the remainder, he would not claim any monetary damages and/or costs resulting from this case, and would not seek any other legal remedies against the Netherlands regarding his complaint.   15.      By letter of 18 December 1989 the respondent Government rejected the proposal.   However, by letter of 23 January 1990, the Government made a counter proposal to the effect that the applicant would be released, provided that he renounced all claims to costs and damages in respect of this application and refrained from any other legal steps against the Netherlands in respect of his complaint.   The Government further indicated in their letter that in the Netherlands the execution of the sentence before it had been served could only be terminated by an act of pardon.   The Government referred to a request for pardon which had been made by the applicant's lawyer and which had been referred, for an advisory opinion, to the Court of Appeal of Amsterdam.   The Government finally noted that, pending a decision on the request for pardon, the execution of the sentence could be suspended by the Minister of Justice.   16.      By letter of 5 February 1990 the applicant accepted the respondent Government's proposal.   17.      The Commission was informed by both Parties by telephone that the applicant was released on 5 February 1990.   18.      At its session on 12 February 1990 the Commission noted that the parties had reached an agreement regarding the terms of a settlement.   The Commission further found, having regard to Article 28 para. 1 (b) of the Convention, that a friendly settlement had been secured on the basis of respect for human rights as defined in the Convention.           For these reasons, the Commission adopted this Report.   Secretary to the Commission               President of the Commission       (H.C. KRÜGER)                             (C.A. NØRGAARD)