CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 novembre 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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 19525/92                       by H.F.                       against the Netherlands        The European Commission of Human Rights sitting in private on 30 November 1994, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 23 December 1991 by H.F. against the Netherlands and registered on 18 February 1992 under file No. 19525/92;        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      20 May 1994 and the observations in reply submitted by the      applicant on 8 June 1994;        Having deliberated;        Decides as follows:   THE FACTS   1.    The particular circumstances of the case        The applicant is a Dutch citizen, born in 1934, residing in Nijmegen. Before the Commission, he is represented by Mr. G. Spong, a lawyer practising in The Hague.        The facts of the case, as submitted by the parties, may be summarised as follows.        The applicant is a psychiatrist. From 1970 to 1 February 1989 he was employed by the H. Foundation in Z., the Netherlands. From 1973 until the end of 1985 he was director and senior medical officer of the "D.L." house of the H. Foundation. In this institution, minors with mental problems are treated.        After several complaints had been made to the police, alleging that the applicant had abused patients under his care and had committed indecencies during a long period, a police investigation was carried out in 1989. In January and February 1989, a large number of persons were questioned by the police, including former patients and former staff members of the "D.L." house.        In May 1989, the investigating judge (rechter-commissaris) heard, inter alia, three former patients, J., T., and D. who alleged that they had been abused by the applicant. The applicant's lawyer was present at these hearings and was given the opportunity to question them. They confirmed the statements they had previously made before the police.        A fourth alleged victim, C., however, did not appear before the investigating judge. Initially, she had not been willing to bring a complaint against the applicant at all, according to the police due to psychological and emotional problems related to the abuse allegedly suffered. She later changed her mind and agreed to make a statement before the police, which she did on 27 February 1989.        When C. was subsequently summoned to appear before the investigating judge, she or her social counsel informed the investigating judge's registrar by telephone that she did not wish to appear before the investigating judge. No reasons were given for C.'s decision.        On 30 May 1990, the applicant, who denied all charges, was convicted by the Regional Court (Arrondissementsrechtbank) of Arnhem of (a) multiple abuse, as a doctor in a charitable institution, of a person admitted thereto, (b) multiple indecent assault and (c) multiple rape. The applicant was sentenced to six years' imprisonment. In addition, his right to practise medicine was suspended for a period of eleven years.        Both the applicant and the public prosecutor filed an appeal against the judgment of 30 May 1990 with the Court of Appeal (Gerechtshof) of Arnhem.        In the course of the proceedings before the Court of Appeal, the applicant's lawyer repeatedly requested the Court to hear J., T., D. and C. The applicant's lawyer argued that many other witnesses had been heard since May 1989, when J., T. and D. had been examined; he wished to confront them with these new statements, and in particular to question C., whom he had never been able to examine. The Court of Appeal rejected these requests, considering:   <Dutch>      "Bij pleidooi heeft de raadsman zijn eerder gedaan verzoek tot      het horen van de slachtoffers ter zitting (als getuigen onder      ede) herhaald. Het hof wijst dat verzoek nogmaals af omdat het      van oordeel is dat de verdachte door het achterwege blijven van      dat verhoor redelijkerwijze niet in zijn verdediging kan worden      geschaad. (...)            De aangeefsters [J., T. en D.] zijn naar aanleiding van hun      aangiften bij de politie door de rechter-commissaris gehoord, in      bijzijn van de raadsman van de verdachte. Deze heeft gelegenheid      gehad om deze getuigen de vragen te stellen die hij in het belang      van de verdediging achtte.            Omtrent de aangeefster [C.] heeft de politie op blz. 13 van      het proces-verbaal nr. 3B/89 gerelateerd, dat het aanvankelijk      niet mogelijk was, contact met dit slachtoffer te krijgen, omdat      zij door psychische en emotionele problemen niet in staat was      aangifte te doen. Naar 's hofs oordeel moet ook het proces-      verbaal van de rechter-commissaris d.d. 25 april 1990, dat zich      in het dossier bevindt, inhoudende dat aangeefster of haar      hulpverleenster heeft meegedeeld dat eerstgenoemde geen gevolg      geeft aan de oproep om voor de rechter-commissaris te      verschijnen, in dat licht worden bezien. Derhalve is te      verwachten, dat aangeefster ondanks de daarop bestaande sancties,      bij oproeping niet zal voldoen aan haar verplichting tot      verschijning en tot het afleggen van een verklaring."   <Translation>      "In his submissions to the court, counsel has reiterated his      request to hear the victims (as witnesses under oath) before the      court. The court again rejects this request as it considers that      the rights of the defence cannot reasonably be impaired by the      absence of such a hearing. (...)            On the basis of their reports to the police, the informants      [J., T. and D.] have been heard by the investigating judge, in      the presence of the applicant's lawyer. He has had the      opportunity to put the questions, which he considered to be in      the interest of the defence, to these witnesses.            As regards informant [C.], the police have stated on page      13 of the procès-verbal nr. 3B/89 that initially it had been      impossible to contact this victim, as due to her psychological      and emotional problems she was incapable to report to the police.      In the opinion of the court the procès-verbal of the      investigating judge of 25 April 1990, which is included in the      case file and indicates that the informant or her social worker      have stated that the former will not comply with the summons to      appear before the investigating judge, should be seen against the      same background. Consequently, it is to be expected that the      informant, when summoned, will not comply with her obligation to      appear and to make a statement, despite the sanctions that this      refusal might entail."        In its judgment of 14 November 1990, the Court of Appeal quashed the Regional Court's judgment and, after a new examination of the facts and evidence, convicted the applicant, who still denied all charges, of (a) multiple abuse, as a doctor in a mental hospital, of a person admitted thereto, (b) multiple indecent assault and (c) multiple rape. The Court of Appeal imposed the same sentence as the Regional Court.        The Court of Appeal's conviction was based on:   - the applicant's statements before the police, the Regional Court and the Court of Appeal; - the statements of J. before the police and the investigating judge; - the statement of J.'s general practitioner before the investigating judge; - a letter of 23 July 1983 which J. wrote to her general practitioner describing the alleged abuse by the applicant; - the statements of T. before the police and the investigating judge; - the statements of D. before the police and the investigating judge; - the statement before the police of an employee of a mental hospital where D. was admitted after having left the "D.L." house and who had treated D.; - the statement of C. before the police; - the statement before the police of V., a friend of C. whom she had met and had friendly relations with when both of them were patients in the "D.L." house and to whom C. had confided that she was repeatedly being abused by the applicant and who had advised C. to write about the matter to C.'s therapist; - the statements before the police and the investigating judge of K., a group leader at the "D.L." house, who in 1988 received a letter from C. about the applicant's abuse and who had taken the matter up with his superiors; - a statement before the police of a member of the Board of the H. Foundation who in November 1988 had a discussion with the applicant about the complaints against the latter; - the statements before the police and the investigating judge of C.'s therapist H.C. to whom C. had complained that the applicant was abusing her; - the statements before the police and the investigating judge of therapist A.H., who had treated C.'s friend V. and to whom C., V. and H.C. went in order to discuss the applicant's abuse of C.; and - the statements before the investigating judge of the police officers who had taken down the various statements made before the police on this case about the investigation and the method of questioning of the persons heard by them.        In his subsequent appeal in cassation to the Supreme Court (Hoge Raad) the applicant complained, inter alia, that the Court of Appeal had violated Article 6 paras. 1 and 3 (d) of the Convention by rejecting his request to hear the four alleged victims. With respect to J., T., and D., he argued that the Court of Appeal had not properly given reasons for its rejection. With respect to C., he referred to the case-law of the European Court and Commission of Human Rights, arguing that the defence had not had "adequate and proper opportunity to challenge and question" her. According to the applicant, the Court of Appeal should either have summoned C. or should have refrained from using her statement in evidence. He emphasised that C.'s statement constituted an important basis for his conviction.        In its judgment of 1 October 1991, the Supreme Court rejected the appeal in cassation. It found that the Court of Appeal's refusal to summon J., T. and D. was reasonable, taking into account that the applicant's lawyer had not given specific reasons for his request to hear them again, apart from a very general intention to confront them with the statements of other witnesses.        As to C., the Supreme Court accepted that the Court of Appeal had decided not to summon her given the situation in which she apparently found herself. The Supreme Court held that the Court of Appeal could reasonably use her statement in evidence, as it coincided with the other statements obtained.        On 27 January 1992, the State Secretary of Justice (Staatssecretaris van justitie) rejected the applicant's appeal for pardon (gratie).   2.    Relevant domestic law and practice        Section 168 of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering, hereinafter referred to as "CCP") provides that each District Court has one or more investigating judges to whom criminal cases are entrusted. They are nominated from amongst the members of the District Court.        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).        It is the task of the investigating judge to conduct such an investigation. In that event he will hear the suspect, witnesses and experts as soon as possible and as often as necessary (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, even if they are absent, to give notice of questions they wish to have put. Most investigating judges invite an accused and his counsel to attend their hearings of witnesses.        The preliminary judicial investigation provides a basis for a decision by the prosecuting authorities with regard to the further prosecution of a suspect, and also serves to clarify matters which cannot properly be investigated at the trial. The investigating judge must act impartially, by also collecting evidence which might exculpate the suspect. The investigating judge will close his investigation when he considers it is completed. Both the suspect and the prosecuting authorities will be informed about the closure of the preliminary judicial investigation (Section 237 CCP).        If the public prosecutor finds that the results of the preliminary judicial investigation justify further prosecution, he will notify the suspect and commit the case for trial. The trial will then follow.        At the time in question, the relevant law and practice as regards the summoning of witnesses to a court hearing was as follows: a witness whom the defence had asked to call before the beginning of the trial, and who had not been summoned by the public prosecutor, would be summoned by the court, unless the court - considering summoning superfluous or fruitless - found that the suspect could, in all fairness, not be harmed in his defence by refusing the summoning of the witness (Section 280 para. 4 CCP).        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) what the judge has himself observed; (ii) statements made by the accused; (iii) statements made by a witness; (iv) statements made by an expert; and (v) written documents.        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 defendant has      committed the act with which he is charged, solely on the      statement of one witness."        Evidence in the fifth category is defined in Section 344 CCP, which, as far as 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 regarding 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.    (...)."        In actual practice, the course of a procedure in a criminal case differs from that suggested by the CCP. This is to a considerable extent due to a leading judgment of the Supreme Court of 20 December 1926 (Nederlandse Jurisprudentie 1927, no. 85). According to this judgment: - a statement by a witness concerning what he was told by another person (hearsay evidence) may be used as evidence, albeit with the utmost caution; - it is permissible to use as evidence declarations made by the accused or by a witness to a police officer, as recorded in the latter's official report.        These rulings permit the use, as "legal means of evidence" within the meaning of Sections 338 and 339 CCP, of 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. In the great majority of cases, witnesses are not heard at the trial but either only by the police or also by the examining magistrate.        The law does not make the presence of counsel for the defence compulsory during the investigation by the police.        Section 292 CCP enables the President of the court to order an accused to leave the court-room so that a witness may be examined out of his presence. If such an order is made, counsel for the defence may question the witness and the accused shall be told immediately what has happened during his absence and only then will the investigation be resumed (Section 292 para. 2 CCP). Thus, on returning to the court-room the accused may avail himself of his right to question the witness.   COMPLAINT        The applicant complains that the domestic courts violated Article 6 paras. 1 and 3 (d) of the Convention by rejecting his repeated requests to hear J., T., D. and C. at the trial. With regard to C., he argues that she had only made a statement to the police and that the defence had not had an "adequate and proper opportunity to challenge and question" her. In this respect he refers to the Kostovski, Delta, Isgrò and Saïdi judgments of the European Court of Human Rights, and the Commission's Report in the Cardot case.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 23 December 1991 and registered on 18 February 1992.        On 2 March 1994, the Commission (Second Chamber) decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application.        After an extension of the time limit, the Government's observations were submitted on 20 May 1994. The applicant submitted his observations in reply on 8 June 1994.   THE LAW        The applicant complains under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention that he did not receive a fair trial, as the Court of Appeal rejected his repeated requests to summon the four alleged victims to the hearing and used their statements in evidence.        Article 6 paras. 1 and 3 (Art. 6-1, 6-3) 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 (...)."        The Government submit that the applicant had a fair trial. He did not, in the proceedings before the Regional Court of Arnhem, ask for witnesses to be heard. The witnesses J., T., and D. were examined by the investigating judge in the presence of the applicant's lawyer, who had the opportunity to question them. The use in evidence of their statements is therefore consistent with para. 3 (d) of Article 6 (Art. 6-3-d). C.'s statement could be used in evidence without violating the right of the applicant to a fair hearing, given C.'s psychological and emotional problems and the consequences that a questioning would have for her.        The applicant submits that he did not have a fair trial. The defence never had the opportunity to question C. The proof of the facts concerning C. rests mainly on her own statement. The rights of the applicant are not subordinate to the rights of the victim.        The Commission, having regard to the parties's submissions, considers that the application raises issues of fact and law which can only be resolved by an examination of the merits. The application can, therefore, not be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility having been established.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION ADMISSIBLE,      without prejudging the merits of the case.   Secretary to the Second Chamber       President of the Second Chamber          (K. ROGGE)                              (S. TRECHSEL)