CEDH · CASELAW;REPORTS;ENG — 20 octobre 1994

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 16696/90                     Wilhelmus Elisabert Baegen                               against                          the Netherlands                      REPORT OF THE COMMISSION                    (adopted on 20 October 1994)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-11) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 12-16). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 17-61) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 17-44). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law           (paras. 45-61). . . . . . . . . . . . . . . . . . .7   III. OPINION OF THE COMMISSION      (paras. 62-82) . . . . . . . . . . . . . . . . . . . . 10        A.    Complaint declared admissible           (para. 62). . . . . . . . . . . . . . . . . . . . 10        B.    Point at issue           (para. 63). . . . . . . . . . . . . . . . . . . . 10        C.    As regards Article 6 of the Convention           (paras. 64-81). . . . . . . . . . . . . . . . . . 10             CONCLUSION           (para. 82). . . . . . . . . . . . . . . . . . . . 13   CONCURRING OPINION OF Mr. H. DANELIUS JOINED BY MM. F. ERMACORA, G.B. REFFI AND B. CONFORTI . . . . . . . . 14   DISSENTING OPINION OF Mr. C.A. NØRGAARD JOINED BY MM. A. WEITZEL, A.S. GÖZÜBÜYÜK, J.-C. SOYER, F. MARTINEZ, C.L. ROZAKIS, Mrs. J. LIDDY, MM. J. MUCHA, E. KONSTANTINOV AND D. SVÁBY . 15   DISSENTING OPINION OF Mr. E. BUSUTTIL JOINED BY Mr. L. LOUCAIDES. . . . . . . . . . . . . . . . . . . . . . 16   APPENDIX I    : HISTORY OF THE PROCEEDINGS . . . . . . . . . 18   APPENDIX II   : DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 19   I.INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a Dutch citizen, born in 1957. He resides at Utrecht, the Netherlands. He was initially represented before the Commission by Mr. A.J.W. Woudstra, who was succeeded by Mr. W.K. Anema, both lawyers in Utrecht.   3.    The application is directed against the Netherlands. The respondent Government were represented by their Agent, Mr. H.A.M. von Hebel of the Netherlands Ministry of Foreign Affairs.   4.    The case concerns the alleged unfairness of criminal proceedings against the applicant. The applicant complains, in particular, that he could not examine in person the main witness - the victim - who wished to remain anonymous. The applicant invokes Article 6 paras. 1 and 3 (d) of the Convention.   B.    The proceedings   5.    The application was introduced on 6 April 1990 and registered on 11 June 1990.   6.    On 13 January 1993, the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite them to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 16 April 1993.   The applicant replied on 30 July 1993 after an extension of the time-limit.   8.    On 29 November 1993, the Commission declared the application admissible.   9.    The text of the Commission's decision on admissibility was sent to the parties on 20 December 1993. They were invited to answer additional questions put by the Commission and to submit any further observations.   10.   The applicant's replies to the Commission's additional questions were submitted on 1 March 1994, after an extension of the time-limit fixed for this purpose. The Government's replies were submitted on 2 March 1994, after an extension of the time limit. The Government submitted further observations by letter of 10 May 1994.   11.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reactions, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   12.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present :        MM.   C.A. NØRGAARD, President           S. TRECHSEL           A. WEITZEL           F. ERMACORA           E. BUSUTTIL           G. JÖRUNDSSON           A.S. GÖZÜBÜYÜK           J.-C. SOYER           H.G. SCHERMERS           H. DANELIUS      Mrs. G.H. THUNE      MM.   F. MARTINEZ           C.L. ROZAKIS      Mrs. J. LIDDY      MM.   L. LOUCAIDES           J.-C. GEUS           M.P. PELLONPÄÄ           G.B. REFFI           M.A. NOWICKI           I. CABRAL BARRETO           B. CONFORTI           N. BRATZA           J. MUCHA           E. KONSTANTINOV           D. SVÁBY           G. RESS   13.   The text of this Report was adopted on 20 October 1994 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.   The purpose of the Report, pursuant to Article 31 of the Convention, is :        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found           disclose a breach by the State concerned of its           obligations under the Convention.   15.   A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I, and the Commission's decision on the admissibility of the application as Appendix II.   16.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   17.   On 1 February 1986, Ms. X. reported to the Utrecht Municipal Police (gemeentepolitie) that two men had raped her in a station wagon when bringing her home from the nightclub H., where the three had met. When she arrived home at approximately 05.30 a.m., her mother immediately called the police who came to Ms. X.'s home. Ms. X. stated that the men had told her not to report the rape to the police and not to speak about it to anyone, and that they would know where to find her in case she did. For fear of reprisals Ms. X. requested to remain anonymous.   18.   Ms. X. gave two statements to the police on 1 February 1986: the first at 05.50 a.m., and the second at 07.15 a.m. Both statements were reported in procès-verbaux. Ms. X. stated that she had met the two men, who were unknown to her, in nightclub H. when the two men joined the group of people she was talking to, that at approximately 04.15 a.m. the two men offered to take her home, which offer she accepted. She further stated that she could not sit in the back of the car since that space was occupied with utensils, and had to sit in front with the two men. She stated that she had been raped after an initial attempt to escape, during which attempt she fell and lost a shoe, and that afterwards she did not dare to offer any resistance.   19.   The police officers who had the first contact with Ms. X. reported in their procès-verbal that after they had arrived at Ms. X.'s home, they found Ms. X. crying and very upset.   20.   On 1 February 1986, the police recorded a statement from Ms. X.'s mother who related what her daughter had told her about the previous night. The mother also told the police that when Ms. X. had come home around 05.30 a.m., she had been crying and had been very upset and that her clothes had been covered with mud. The mother stated further that, together with a friend, she had found her daughter's shoe on the spot where her daughter had said she had lost it.   21.   Both Ms. X. and her mother wished to remain anonymous, but their particulars were known to the police. The applicant alleges that his lawyer discovered the identity of Ms. X. by coincidence through a conversation with a colleague, who had a client suspected of rape as well. The applicant alleges that in both cases the (alleged) victim was Ms. X. The exact date of this discovery is not known but lies between 24 September 1986 and 17 December 1986 (cf. para. 38 below).   22.   Also on 1 February 1986, a medical examination of Ms. X. was carried out and some of her clothes were taken in for examination. Traces of semen were found on Ms. X.'s underpants and panty-liner, which would enable a determination of the blood type of the presumed rapist.   23.   On 10 February 1986, the applicant was arrested and detained in police custody on suspicion of having raped Ms. X. On the same day, he was shown to Ms. X. through a two-way mirror. She identified him as the man who had raped her. When questioned by the police on 10, 11, 12 and 13 February 1986, the applicant claimed to be innocent. He stated, inter alia, that on 1 February 1986 he had gone to the nightclub H. alone and had left the place alone. He denied having seen K., a friend of his, in the nightclub that night.   24.   On 12 February 1986, Ms. X. made another statement to the police. She reiterated her accusation against the applicant but stated she did not remember whether or not the second man had also raped her.     25.   Also on 12 February 1986, the applicant and Ms. X. had a face to face confrontation before the police. Ms. X. identified the applicant again as being one of the two rapists. She said that she recognised not only his appearance but also his voice. The applicant later stated to the police that he had never seen Ms. X. before.   26.   On 13 February 1986, the applicant was released.   27.   On 14 February 1986, the police examined a third witness, Y., who also wished to remain anonymous for fear of reprisals. The particulars of this witness were known to the police. Y. stated to the police that on 1 February 1986 (s)he was in the cloakroom of the nightclub H. at approximately 04.00 a.m., and that (s)he saw that the applicant, whom (s)he knew by name, and another man, whom (s)he later found out was named K., took a woman with them when they left the nightclub. Y. also stated that (s)he heard the applicant say to K.: "We'll take her with us and afterwards we'll throw her out somewhere" ("We nemen haar mee en dan gooien wij haar daarna wel er ergens uit."), or words to that effect. Y. stated that (s)he had the impression that Ms. X. was drunk or at least very tipsy. The police showed photographs to Y. from which (s)he identified Ms. X., the applicant and K.   28.   On 23 February 1986, K. was arrested and detained in police custody as co-suspect in the rape of Ms. X. The next day K. was shown to Ms. X. through a two-way mirror. Ms. X. stated that K. resembled the second man but that she was not sure whether K. was the second man. The police questioned K. on 24 and 25 February 1986. Following an initial denial, he stated on 25 February that on 1 February 1986 he and the applicant went to nightclub H. together, that they started talking with some other people, among whom Ms. X., and that after some time the applicant said to him that they would leave and that Ms. X. would go with them. K. further stated that the three of them got into the applicant's station wagon, that Ms. X. sat in the front seat of the car, and that there was fishing equipment on the back seat. K. denied having raped Ms. X. He confirmed that the applicant and Ms. X. had had intercourse in the car in his presence, but stated that Ms. X. had acted of her own free will. K. was released on 26 February 1986.   29.   On 25 March 1986, the police asked the applicant whether he wanted to undergo a blood and saliva test. The applicant refused to submit to such tests.   30.   On 12 May 1986, the public prosecutor (officier van justitie) requested the opening of a preliminary judicial investigation (gerechtelijk vooronderzoek).   31.   In this context, the investigating judge (Rechter- Commissaris) heard Y. under oath on 16 July 1986. The investigating judge was unaware of Y.'s identity. Y. confirmed the statement made to the police on 14 February 1986. The investigating judge recorded in the procès-verbal of this hearing that the witness wanted to remain anonymous for fear of reprisals and that this fear was well-founded. The procès-verbal of this hearing was sent to the applicant's lawyer.   32.   On 24 July 1986, the applicant was heard by the investigating judge. He maintained that he had nothing to do with the rape he was accused of, that he had gone to the nightclub H. alone and had left alone, and that he had offered no one a ride.   33.   On 4 August 1986, the investigating judge heard K., who repeated his statement made to the police. He added that his mother knew Ms. X.'s mother, who had told K.'s mother that she had been angry that her daughter had returned home so late. He stated that he thought Ms. X. had made up the story about being raped in order to have an excuse for her late homecoming.   34.   In a letter of 25 August 1986 to the investigating judge, the applicant's lawyer objected to the possibility that his client might be convicted on the basis of statements made by Y., whose wish for anonymity for fear of reprisals was unfounded. At the same time, he submitted a list of questions to be put to Y. by the investigating judge.   35.   On 28 August 1986, the investigating judge heard Ms. X. under oath, as there were reasons to assume that she would not appear at a court session for fear of reprisals, which the investigating judge considered well-founded. The investigating judge was not aware of Ms. X.'s identity. Ms. X. confirmed her statements to the police. On 28 August 1986, the procès-verbal of the questioning of Ms. X. was sent to the applicant's lawyer, who was invited to submit any additional questions to be put to Ms. X. The applicant's lawyer acknowledged the receipt of the procès-verbal by letter of 1 September 1986, but did not submit such questions.   36.   At the request of the applicant's lawyer, the investigating judge, following an initial refusal, heard Y. again on 14 October 1986. The investigating judge was still not aware of Y.'s identity. On that occasion, Y. replied to the written questions of the applicant's lawyer. Of the seven questions the applicant's lawyer had formulated, five were answered, while a sixth one had already been answered by Y. at the hearing on 16 July 1986. One question was not answered because it would have revealed Y.'s identity.   37.   After the preliminary judicial investigation had been closed, the public prosecutor notified the applicant on 14 November 1986 that he would continue the prosecution (kennisgeving van verdere vervolging) and commit the applicant for trial.     38.   By letter of 17 December 1986, the applicant's lawyer informed the public prosecutor that, should his client be committed for trial, he intended to submit to the Regional Court (Arrondissementsrechtbank) the case-file concerning a certain Mr. E., who was suspected of having raped a person on 24 September 1986, who - according to the applicant's lawyer - was Ms. X. In that case-file, the identity of the victim was disclosed. The applicant's lawyer further wrote that, should the public prosecutor have any objections to the submission of the case-file of Mr. E. to the Regional Court, he would request the reopening of the preliminary judicial investigation, in order to hear a number of witnesses.   39.   On 31 August 1987, the applicant was summoned to appear before the Regional Court of Utrecht on 2 October 1987. Before the Regional Court he denied all charges. At no point in the proceedings before the Regional Court the applicant or his lawyer requested to hear any witnesses. On 16 October 1987, the Regional Court convicted the applicant of rape and sentenced him to 12 months' imprisonment.   40.   On 20 October 1987, the applicant filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam. On 2 September 1988 the applicant's lawyer submitted the case-file concerning Mr. E. to the Court of Appeal.   41.   The Court of Appeal heard the case on 6 September 1988. The applicant maintained his innocence. In his pleadings the applicant's lawyer requested the Court of Appeal to suspend its hearing or to refer the case back to the investigating judge in order to have Ms. X. re-examined. Referring to the case-file on the criminal proceedings against Mr. E., he challenged the reliability of Ms. X.'s statements. The applicant's lawyer considered that in the case of Mr. E. it clearly appeared from several statements by witnesses that Ms. X. was known for approaching men in a sexually explicit manner.   42.   In its judgment of 20 September 1988, the Court of Appeal quashed the judgment of the Regional Court for technical reasons, convicted the applicant of rape, and sentenced him to 12 months' imprisonment. It rejected the request of the applicant's lawyer to suspend the hearing or to refer the case back to the investigating judge in order to have Ms. X. re-examined, considering that it had been sufficiently informed. The court based its conviction on the following means of evidence: -     the two statements Ms. X. made to the police on      1 February 1986; -     the statement Ms. X. made to the police on 12 February 1986      following her face-to-face confrontation with the      applicant; -     the statement Ms. X. made to the investigating judge on      28 August 1986; -     the statement co-accused K. made to the police on      25 February 1986; -     the statement Ms. X.'s mother made to the police on      1 February 1986; -     the reports of the police officers who had questioned      Ms. X. on 1 and 12 February 1986.   43.   In its judgment the court stated, inter alia:   <Dutch>      "Het hof heeft de verklaringen van de anonieme getuige      met behoedzaamheid gebezigd en op hun betrouwbaarheid      getoetst aan de hand van de overige bewijsmiddelen."   <Translation>      "The court has used the statements of the anonymous      witness with cautioun and has assessed their      reliability in the light of the other means of      evidence."   44.   The applicant's appeal in cassation of 20 September 1988 was rejected by the Supreme Court (Hoge Raad) on 10 October 1989. It held that the anonymity of Ms. X. did not make her statements unreliable and that her anonymity - as the victim of the offence of which the applicant had been found guilty - was no obstacle to the admissibility of her statements as evidence.   B.    Relevant domestic law   45.   Section 168 of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering, hereinafter referred to as "CCP") states that each Regional Court has one or more investigating judges to whom criminal cases are entrusted. They are nominated from amongst the members of the Regional Court.   46.   It is open to the public prosecutor, under Section 181 CCP, to request what is called - in order to distinguish it from the subsequent investigation at the trial - a preliminary judicial investigation (gerechtelijk vooronderzoek).   47.   It is the task of the investigating judge to conduct such an investigation. The investigating judge must act impartially, by also collecting evidence which might exculpate the accused. The investigating judge will hear the accused, witnesses, and experts as soon as possible and as often as is required (Section 185 CCP). Both the public prosecutor and defence counsel are, in principle, entitled to be present at those hearings (Sections 185 para. 2 and 186 CCP) and, if they are absent, to give notice of questions they wish to have asked. Procès-verbaux are drawn up of all the activities of the investigating judge.   48.   The preliminary judicial investigation provides a basis for a decision by the prosecution authorities with regard to the further prosecution of an accused, and also serves to clarify matters which cannot properly be investigated at the trial. The investigating judge will close the preliminary judicial investigation when it is completed. Both the accused and the public prosecutor will be informed about the closure of the preliminary judicial investigation (Section 237 CCP). They can request the investigating judge to reopen it (Section 238 CCP).   49.   If the public prosecutor finds that the results of the preliminary judicial investigation justify further prosecution, he will notify the accused (kennisgeving van verdere vervolging) and commit the accused for trial.   50.   As regards the evidence in criminal proceedings, Section 338 CCP provides that the finding that the accused has committed the act with which he is charged may be made by a judge only if he has been so convinced through the investigation at the trial, by the contents of "legal means of evidence" (wettige bewijsmiddelen). The latter consist, according to Section 339 CCP, exclusively of (i) the judge's own observations; (ii) statements made by the accused; (iii) statements made by a witness; (iv) statements made by an expert; and (v) written documents.   51.   Evidence in the third category is defined in Section 342 CCP, which reads:   <Translation>      "1.   A statement by a witness is understood to be his      statement, made in the investigation at the trial, about      facts or circumstances which he himself has seen or      experienced.        2.    The judge cannot accept as proven that the accused has      committed the act with which he is charged, solely on basis      of the statement of one witness."   52.   Evidence in the fifth category is defined in Section 344 CCP, which, as far as is relevant, reads:   <Translation>      "1.   Written documents are understood to be:           1° ...;           2° official reports and other documents, drawn up in           the lawful form by bodies and persons who have the           proper authority and containing their statement about           facts or circumstances which they themselves have seen           or experienced;           3° ...;           4° ...;           5° all other documents; but these are valid only in              conjunction with the content of other means of              evidence.      2.    (...)."   53.   In the great majority of criminal cases in the Netherlands, witnesses are not heard at the trial, but by the police and/or the investigating judge. This is to a considerable extent due to a leading judgment of the Supreme Court of 20 December 1926 (Nederlandse Jurisprudentie 1927, nr. 85). According to this judgment it is permissible to use as "legal means of evidence" statements made by a witness not at the trial but before a police officer or the investigating judge, provided they are recorded in an official report which is read out in court.   54.   Although the investigating judge must ask the witness for his particulars (Section 190 CCP) and the witness must answer this question (Section 221 CCP), whilst this answer is recorded in a procès-verbal, the Supreme Court has accepted procès-verbaux containing statements by anonymous witnesses as legal means of evidence (cf. Hoge Raad, judgment of 25 September 1984, Nederlandse Jurisprudentie 1985, no. 426; Hoge Raad, judgment of 12 November 1985, Nederlandse Jurisprudentie 1986, no. 409).   55.   As regards the calling of witnesses, the accused can - according to Section 263 CCP - at the latest three days before the court hearing, request that the public prosecutor summon a witness before the court. As a rule, the public prosecutor summons the witness, but - according to Section 263 para. 4 CCP -   he can refuse to do so if it must be reasonably assumed that the accused cannot be harmed in his defence if the witness is not heard before the court ("Indien redelijkerwijs moet worden aangenomen, dat de verdachte niet in zijn verdediging kan worden geschaad wanneer een door hem opgegeven getuige [...] niet ter terechtzitting wordt gehoord"). He has to give reasons for this decision and must inform the accused immediately in writing about his refusal. He must furthermore inform the accused that at the court hearing the accused can repeat his request to summon this witness.   56.   Section 280 CCP provides that when the public prosecutor has failed or refused to summon a witness at the request of the accused, the accused can ask the court to summon that witness. In that case the court orders that the witness be summoned, unless it finds that the non-appearance of this witness cannot reasonably damage the defence of the accused. ("De rechtbank beveelt dat de [...] getuige [...] zal worden gedagvaard of schriftelijk opgeroepen, tenzij zij [...] van oordeel is dat door het achterwege blijven daarvan de verdachte redelijkerwijs niet in zijn verdediging kan worden geschaad" - Section 280 para. 4 CCP).   57.   Under Section 315 CCP the court has the power to summon witnesses of its own accord, if the court finds it necessary to question a witness who has not yet been heard in court ("Indien aan de rechtbank de noodzakelijkheid blijkt van het verhoor van op de terechtzitting nog niet gehoorde getuigen [...]").   58.   Section 414 CCP provides that in proceedings before the Court of Appeal, the Procurator-General (Procureur-Generaal) and the accused can summon witnesses and that Section 263 paras. 2-4 CCP applies by analogy.   59.   Pursuant to Section 415 CCP, Sections 280 and 315 apply by analogy to the proceedings before the Court of Appeal.   60.   When the accused has not requested the public prosecutor or the Procurator-General to summon a witness before the court in accordance with Sections 263 or 414 CCP, the accused can, at the court session itself, request the court to hear a witness. In that case the court decides on the request on the basis of the criteria contained in Section 315 CCP (para. 57 above).   61.   After its decision in the present case, and following the judgment of the European Court of Human Rights in the Kostovski case (judgment of 20 November 1989, Series A no. 166), the Supreme Court defined the conditions under which statements of an anonymous witness may be used in evidence. According to these conditions such a statement must have been taken by a judge who is aware of the identity of the witness; in the procès-verbal of the hearing of such a witness, the judge must have expressed his opinion as to the reliability of the witness and as to the reasons for the wish of the witness to remain anonymous; and the judge must provide the defence with the opportunity to put questions or have questions put to this witness (Hoge Raad, judgment of 2 July 1990, NJ 1990, no. 692). The Supreme Court stated that these conditions are not absolute, and that under certain circumstances a statement of an anonymous witness that does not meet all the criteria can be used in evidence.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   62.   The Commission has declared admissible the applicant's complaint under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention that he did not have a fair trial in that he was convicted on the basis of declarations of an anonymous witness, whom neither he nor his lawyer had the opportunity to question directly.   B.    Point at issue   63.   The point at issue is accordingly whether there has been a violation of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention.   C.    As regards Article 6 of the Convention     64.   Article 6 paras. 1 and 3 of the Convention, insofar as relevant, reads:        "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:      (...)      (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.      (...)."   65.   The applicant complains that he did not have a fair trial in that he was convicted on the basis of declarations made by an anonymous witness, Ms. X. He submits that neither he nor his lawyer had an opportunity to question Ms. X., whose credibility was questionable and whose statements he had disputed all the time. He submits that the judges who convicted him were prevented from observing Ms. X.'s demeanour during questioning and thus from forming their own opinion of her reliability.   66.   The Government refer to the Supreme Court's - posterior - case-law concerning anonymous witnesses (para. 61 above). They submit that, if the defence has not asked for the witness to be examined, if the finding of guilt is based to a significant extent on other evidence from non-anonymous sources and if the court shows that it has used the anonymous statement with due care and restraint, exceptions can be made from the conditions laid down in that case-law.   67.   The Government further submit that the investigating judge heard Ms. X. under oath and indicated in the procès-verbaux of the investigation that she (the judge) considered Ms. X's fear of reprisals, on account of which she wished to remain anonymous, to be well-founded.   68.   The Government argue that the applicant failed to avail himself of the opportunity to have the investigating judge put questions in writing to Ms. X. as he did with respect to the third anonymous witness. During the hearing before the Utrecht Regional Court, the applicant did not ask for Ms. X. to be examined. He only did so in his pleadings before the Court of Appeal. Moreover, the applicant's conviction was not based solely on the statements of Ms. X. The statement of the applicant's co-ccused K. constituted a significant element of evidence.   69.   Finally, the Government observe that the Court of Appeal, in its judgment of 20 September 1988, declared that "[it had] used the statements of the anonymous witness with caution and [had] assessed their reliability in the light of the other means of evidence".   70.   As the guarantees in para. 3 (d) of Article 6 (Art. 6-1, 6- 3-d) are specific aspects of the right to a fair trial set forth in para. 1 of this article, the Commission will consider the complaints under the two provisions taken together (cf. Eur. Court H.R., Asch judgment of 26 April 1991, Series A No. 203, p. 10, para. 25).   71.   The Commission recalls that the admissibility of evidence is primarily governed by the rules of domestic law, and that, as a rule, it is for the national courts to assess the evidence before them. The task of the Convention organs is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (cf. Asch judgment, ibid., p. 10, para. 26; and Eur. Court H.R. Edwards judgment of 16 December 1992, Series A No. 247-B, pp. 34-35, para. 34).   72.   All evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. However, the use in evidence of statements obtained at the stage of the police inquiry and the judicial investigation is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6 (Art. 6-1, 6-3-d), provided that the rights of the defence have been respected. As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him either when he was making his statements or at a later stage of the proceedings (Eur. Court H.R., Saïdi judgment of 20 September 1993, Series A No. 261-C, p. 56, para. 43).   73.   As to the notion of "witness", the Commission recalls that although Ms. X. did not testify at a hearing, she should, for the purposes of Article 6 para. 3 (d) (Art. 6-1, 6-3-d) of the Convention, be regarded as a witness - a term to be given its autonomous interpretation - because her statements, as taken down by the police and investigating judge, were used in evidence by the domestic courts (Asch judgment, ibid., p. 10, para. 25).   74.   The Commission further 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 or advisable to hear a witness (cf. No. 8231/78, Dec. 6.3.82, D.R. 28, p. 5, and Eur. Court H.R., Bricmont judgment of 7 July 1989, Series A No. 158, p. 31, para. 89).   75.   The Commission notes that the applicant's conviction was based, inter alia, on Ms. X.'s statements. The applicant was confronted with Ms. X. before the police but neither he nor his lawyer had an opportunity to examine her directly.     76.   The Commission further notes that Ms. X. based her request to remain anonymous on a fear of reprisals and that this fear was considered well-founded by the investigating judge.   77.   The Commission has also regard to the special features of criminal proceedings concerning rape and other sexual offences. Such proceedings are often conceived of as an ordeal by the victim, in particular when the latter is unwillingly confronted with the defendant. In the assessment of the question whether or not in such proceedings an accused received a fair trial account must be taken of the right to respect for the victim's private life. Therefore, the Commission accepts that in criminal proceedings concerning sexual abuse certain measures may be taken for the purpose of protecting the victim, provided that such measures can be reconciled with an adequate and effective exercise of the rights of the defence.   78.   The Commission observes that, during the preliminary judicial investigation, the applicant failed to avail himself of the offer of the investigating judge to put written questions to Ms. X., that in the proceedings before the Regional Court he did not request an examination of Ms. X. either before this court or the investigating judge, and that the applicant did not request the prosecution authorities to summon her as a witness for the hearing of 6 September 1988 before the Court of Appeal. It was only in the course of that last hearing that he requested the court to order an examination of Ms. X.   79.   The Commission further observes that the applicant's conviction did not rest solely on the statements of Ms. X. The Court of Appeal also used in evidence statements of police officers, the statement of Ms. X.'s mother, and the statement of K. All those statements, more or less, corroborated the version of events Ms. X. had given. They were not, however, consistent with the applicant's statements on a number of points. In the course of the proceedings before the trial courts, the applicant never requested an examination of these persons.   80.   Furthermore, it does not appear that, in the course of the criminal proceedings against him, the applicant had no opportunity to challenge Ms. X.'s version of the events, could not properly challenge her reliability, or could not challenge the other evidence against him. Before the Court of Appeal, the applicant's lawyer did in fact challenge Ms. X.'s reliability on the basis of a file concerning criminal proceedings against E. In this respect the Commission also notes that the applicant refused to undergo a blood and saliva test, the result of which could have supported his allegation that he never had had intercourse with Ms. X.   81.   In these circumstances, the Commission is of the opinion that the criminal proceedings against the applicant, considered as a whole, cannot be regarded as unfair.        CONCLUSION   82.   The Commission concludes, by fourteen votes to twelve, that in the present case there has been no violation of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention.   Secretary to the Commission           President of the Commission          (H.C. KRÜGER)                        (C.A. NØRGAARD)                                                    (Or. English)                CONCURRING OPINION OF Mr. H. DANELIUS      JOINED BY MM. F. ERMACORA, G.B. REFFI AND B. CONFORTI        Although with some hesitation, I voted in favour of the conclusion   in para. 87 of the Report according to which there had been no violation of Article 6 of the Convention in the present case. However, I do not agree with all the arguments on which the majority based this conclusion.        For me, the essential element was that the applicant had failed to request that Ms. X. be heard in his presence, or in the presence of his lawyer, either before the investigating judge or before the Regional Court and that he also did not request, before the case was heard by the Court of Appeal, that she be summoned to appear before that Court. It was only at a very late stage, in the course of the hearing before the Court of Appeal, that he expressed a wish to hear Ms. X. Consequently, he cannot be considered to have availed himself of the possibilities which might have existed to get a confrontation with Ms. X. and to put questions to her during the court proceedings.        In these circumstances, and having regard also to the fact that there was some other relevant evidence supporting the charge against the applicant, I concluded that the applicant had not been denied a fair trial.                                                    (Or. English)               DISSENTING OPINION OF Mr. C.A. NØRGAARD    JOINED BY MM. A. WEITZEL, A.S. GÖZÜBÜYÜK, J.-C. SOYER, F. MARTINEZ, C.L. ROZAKIS, Mrs. J. LIDDY, MM. J. MUCHA, E. KONSTANTINOV AND D. SVÁBY        To my regret I cannot agree with the opinion of the majority of the Commission that there has been no violation of Article 6 paras. 1 and 3 (d) of the Convention.        With regard to the applicant's refusal to undergo a blood and saliva test I note that the result of such a test could not prove the charge of rape.        Being aware - on the one hand - of the difficulties of obtaining and producing evidence in cases concerning sexual offences, and of the position of victims of such offences as witnesses in criminal proceedings against the suspected offender, and - on the other hand - recalling the prominent place of the right to a fair administration of justice in a democratic society, on balance, I cannot find that the handicaps under which the defence laboured were outweighed by the procedures followed by the Dutch judicial authorities.        The proceedings did not, therefore, grant the applicant a fair trial as guaranteed by Article 6 paras. 1 and 3 (d) of the Convention.                                                    (Or. English)                DISSENTING OPINION OF Mr. E. BUSUTTIL                   JOINED BY Mr. L. LOUCAIDES        I am unable to share the opinion of the majority of the Commission that there has been no violation of Article 6 paras. 1 and 3(d) of the Convention.        This is a case where the applicant was convicted of rape and sentenced to twelve months' imprisonment on the strength of statements made by Ms. X., three to the police and one before the investigating magistrate, the reports of the police officers who had taken down her statements, the statement of Ms. X.'s mother to the police and the statement of the co-accused to the police.        In regard to this evidence, it must be noted that Ms. X.'s mother repeated in her statement the information her daughter had given her about the incident in question.   Similarly, the police officers could only repeat what Ms. X. had told them.   The co-accused stated that the applicant had intercourse with Ms. X. in the car in his presence but that this had taken place with her acquiescence.   In the result, therefore, the applicant was convicted on the basis of Ms. X.'s own statements to the police and the investigating magistrate and of what Ms. X. had recounted to her mother.   No other evidence of rape was relied upon by the Dutch courts.        Thus, in the present case, two anonymous persons, Ms. X. and her mother, had only been heard by the police officers in charge of the case, who later gave evidence in court regarding their statements, but were not examined by the trial courts.   The examining magistrate did question Ms. X. but was not aware of her identity, nor were the trial courts.   As for the applicant's refusal to undergo blood and saliva tests, it is only necessary to recall that it does not lie upon the accused to prove his innocence but upon the prosecution to establish his guilt beyond reasonable doubt.        In principle, according to the case-law of the Convention organs, all evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument. However, as the European Court has determined, there can be exceptions to this rule provided that the rights of the defence are respected.   Broadly speaking, these rights require that the defence be given an adequate and proper opportunity to challenge and question hostile witnesses, either when they were making their statements or at some later stage of the proceedings.        In the instant case, no such opportunity was afforded to the applicant since at no stage of the proceedings could the anonymous witnesses be questioned directly by him or on his behalf.   In addition, the scope for indirect questioning was considerably restricted by the decision taken to preserve their anonymity.   In such a situation the handicaps confronting the applicant were compounded in that, being unaware of the identity of the witnesses, the defence was unable to demonstrate prejudice, hostility or unreliability.   Moreover, the courts were unable to observe the demeanour of the anonymous witnesses and were thereby precluded from making their own assessment of their credibility.        As the European Court commented in Kostovski v. The Netherlands (Judgment