CEDH · CASELAW;REPORTS;ENG — 27 février 1996

.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 Nos. 21363/93,                      21364/93, 21427/93 & 22056/93                     Hendrik van Mechelen, Willem Venerius,              Johan Venerius & Antonius Amandus Pruijmboom                                     against                                 the Netherlands                            REPORT OF THE COMMISSION                        (adopted on 27 February 1996)                                TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2     II.    ESTABLISHMENT OF THE FACTS       (paras. 16-54). . . . . . . . . . . . . . . . . . . . . . . . 4         A.    The particular circumstances of the case            (paras. 16-36) . . . . . . . . . . . . . . . . . . . . . 4         B.    Relevant domestic law            (paras. 37-54) . . . . . . . . . . . . . . . . . . . . .10     III.   OPINION OF THE COMMISSION       (paras. 55-86). . . . . . . . . . . . . . . . . . . . . . . .13         A.    Complaint declared admissible            (para. 55) . . . . . . . . . . . . . . . . . . . . . . .13         B.    Point at issue            (para. 56) . . . . . . . . . . . . . . . . . . . . . . .13         C.    As regards Article 6 paras. 1 and 3 (d) of the Convention            (paras. 57-85) . . . . . . . . . . . . . . . . . . . . .13              CONCLUSION            (para. 86) . . . . . . . . . . . . . . . . . . . . . . .17   DISSENTING OPINION OF MR. E. BUSUTTIL . . . . . . . . . . . . . . .18   DISSENTING OPINION OF MRS. J. LIDDY, JOINED BY MM. H. DANELIUS, C.L. ROZAKIS, L. LOUCAIDES, M.A. NOWICKI, N. BRATZA AND A. PERENIC   . . . . . . . . . . . . . . . . . . . . .20     APPENDIX:   DECISION OF THE COMMISSION AS TO THE            ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . .22   I.     INTRODUCTION   1.     The following is an outline of the cases as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.     The application   2.     The applicants are Dutch citizens, born in 1960, 1961, 1962 and 1964 respectively. At the time of the introduction of the applications they were all in detention in the Netherlands. In the proceedings before the Commission, the first two applicants were represented by Mrs. T.N.B.M. Spronken, a lawyer practising in Maastricht, the third applicant by Mr. J.M. Sjöcrona, a lawyer practising in The Hague, and the fourth applicant by Mr. G.G.J. Knoops, a lawyer practising in 's-Hertogenbosch.   3.     The applications are directed against the Netherlands.   The respondent Government were represented by their Agent, Mr. K. de Vey Mestdagh of the Netherlands Ministry of Foreign Affairs.   4.     The cases concern the fairness of the criminal proceedings against the applicants, in which the applicants were convicted on the basis of, inter alia, statements by unidentified witnesses.   The applicants invoke Article 6 paras. 1 and 3 (d) of the Convention.     B.     The proceedings   5.     The first and second applications were introduced on 27 November 1992, the third application on 8 December 1992 and the fourth application on 24 November 1992. The first and second applications were registered on 10 February 1993, the third application on 25 February 1993 and the fourth application on 14 June 1993.   6.     On 11 April 1994, the Commission decided to join the applications and, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the applications to the respondent Government and to invite the parties to submit written observations on their admissibility and merits.   7.     The Government's observations were submitted on 1 July 1994.   The first, second and third applicants replied on 26 September 1994. The fourth applicant replied on 30 September 1994.   On 21 October 1994, the Commission granted the requests by the first, second and third applicants for legal aid for the representation of their respective cases.   8.     On 15 May 1995, the Commission declared admissible the applicants' complaints under Article 6 paras. 1 and 3(d) of the Convention.   It declared inadmissible the remainder of the applications.   9.     The text of the Commission's decision on admissibility was sent to the parties on 2 June 1995 and they were invited to submit such further information or observations on the merits as they wished. No such observations have been submitted.   10.    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' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.     C.     The present Report   11.    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.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  C.A. NØRGAARD                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL 12.    The text of this Report was adopted on 27 February 1996 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.   13.    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.   14.    The Commission's decision on the admissibility of the application is annexed hereto.   15.    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   16.    In the course of the investigation of a series of bank robberies in the province of Noord-Brabant, the police received information about a group of five persons, amongst whom the applicants, who seemed to be involved in the robberies and who operated from two mobile home sites, where three of the four applicants lived. The police decided, apparently in the beginning of November 1988, to place these two mobile home sites under observation by a special team.   17.    On 26 January 1989, three or four men robbed the Post Office in Oirschot and stole an amount of some 87.000 Dutch guilders. While being pursued by the police in a car chase, the perpetrators fired several times at policemen and passers-by, deploying inter alia an automatic gun. At one point, in the inhabited part of a small town, they ambushed and opened fire at the police, more or less seriously wounded four policemen and got away. The getaway car was later found burning on a sand path.   18.    The applicants were arrested in January and February 1989. In the course of a confrontation with a number of persons through a two-way mirror, some of the police officers involved in the events prior to and after the robbery identified one or more of the applicants. The applicants were charged in March 1989 with the robbery of 26 January 1989 and a similar robbery in October 1988. They were also charged with multiple attempts of murder or manslaughter during the pursuit after the robbery in Oirschot. The applicants have always denied all charges.   19.    The Regional Court (Arrondissementsrechtbank) of 's-Hertogenbosch which dealt with the four separate sets of criminal proceedings, convicted the applicants of multiple attempts of manslaughter and aggravated theft by judgments of 12 May 1989, 3 August 1989 and 9 October 1989, while acquitting them of the 1988 bank robbery. Each of the applicants was sentenced to ten years' imprisonment. The Regional Court used several police reports about the events in evidence. The reports contained, inter alia, statements of unidentified police officers, who were only referred to by a number. The reports had been taken down by named police officers. The Regional Court also relied on the statements of passers-by who had witnessed the robbery or parts of the pursuit.   20.    The applicants appealed to the Court of Appeal (Gerechtshof) of 's-Hertogenbosch, which dealt with the four separate cases simultaneously. At the hearing of 2 May 1990, the defence requested to have the unidentified police officers heard before the Court. The Procurator General (Procureur-generaal) objected to this request as he felt that the anonymity of the witnesses should be preserved. He submitted that the rights of the defence would not be prejudiced if these witnesses were heard by an investigating judge (rechter- commissaris) instead of appearing before the Court.   21.    The Court of Appeal decided to refer the case to the investigating judge in order to hear all twenty-one witnesses, i.e. eleven unidentified police officers, eight identified police officers and two civilians, and to examine the objections which the unidentified policemen might have against revealing their identity. The Court specified that, in principle, all questions the defence wished to put should be asked during the examination of these witnesses before the investigating judge. The Court also considered that, given the large number of witnesses, it did not appear to be efficient at that stage of the proceedings to hear them all before the Court. On the basis of the findings of the investigating judge, the Court would then decide whether or not the witnesses were to appear before it.   22.    In total, the investigating judge examined twenty witnesses under oath, eleven of whom remaining unidentified. The latter witnesses were examined before the investigating judge while both the defence and the Procurator General remained in different rooms, which were connected to each other and the investigating judge's cabinet through sound equipment.   23.    The unidentified witnesses were all police officers assigned to special police units, namely observation teams and arrest teams. Each of them stated before the investigating judge that, if their identity was disclosed, they could no longer function properly in their service. According to some statements the police authorities had actually ordered officers not to reveal their identity, although others denied this. Each of the officers added that they wanted to remain unidentified out of fear for reprisals against them and/or their families. They all confirmed the reports which they had previously made and which had been used in evidence by the Regional Court.   24.    In the procès-verbal on his findings (proces verbaal van bevindingen) to the Court of Appeal of 19 November 1990, the investigating judge stated that he was aware of the identity of each unidentified police officer acting as a witness and that the eleven unidentified witnesses were different persons. The minutes of the hearings contained their reasons for their anonymity, which he considered to be credible and justified. The investigating judge further gave reasons for his findings that the unidentified witnesses were reliable.   25.    The investigating judge explicitly acknowledged that the final assessment of the probative value of the evidence and of the validity of the reasons put forward by the unidentified witnesses for their wish to remain anonymous should be made by the Court of Appeal.   26.    The report indicated that both the applicants and their lawyers had been able to question the witnesses, and that the defence had availed itself extensively of this possibility, sometimes in a rather forceful way ("soms vrij felle wijze van ondervraging"). The report specified that the hearings had lasted between two and five hours per witness. Some questions had remained unanswered as the witnesses feared that their answers to these questions would lead to the disclosure of either their identity or the research methods of the police. These questions were explicitly mentioned in the minutes of the hearings. The draft minutes of all hearings were circulated to the persons having attended the hearing and they had the possibility of commenting on the contents.   27.    At the hearings of 3 October and 28 November 1990 before the Court of Appeal the defence repeated its request to have the unidentified witnesses examined before the Court. The defence submitted that the questioning of the witnesses before the investigating judge had proved to be troublesome due to both technical problems and the impossibility to see how the witnesses reacted to questions put to them. The Procurator General again objected arguing that the policemen had well-founded reasons for remaining anonymous.   28.    The Court of Appeal rejected the request by the defence, considering that this decision could not reasonably prejudice the interests of the defence. In particular, as the investigating judge had interrogated the witnesses under oath, the defence had had ample opportunity to question them thoroughly, and the investigating judge had expressed a reasoned opinion as to the reliability of the witnesses examined. The Court decided that the anonymity of these witnesses was to be preserved during the trial, as the reasons for their anonymity as submitted before the investigating judge were relevant and sufficient.   29.    On 16 and 18 January 1991 the Court of Appeal examined a number of identified persons as witnesses in respect of the facts of the case and a reconstruction of the events made on 14 November 1990 and 4 January 1991. On 21 January 1991 the Court of Appeal heard the final pleas in the case and closed its hearings.   30.    In four separate judgments of 4 February 1991, the Court of Appeal quashed the judgments of the Regional Court in view of a different assessment of the evidence. It convicted the applicants of several counts of attempted murder, and robbery, preceded and accompanied by violence against persons, committed with a view to preparing the robbery and facilitating it, and committed together with two or more others. Each of the applicants was sentenced to fourteen years' imprisonment.   31.    The Court of Appeal based its conviction, apart from the physical and forensic evidence, on the statements of: (1) a number of identified policemen who had been involved in the investigation; (2) five identified civilians who had witnessed parts of the events; and (3) the eleven unidentified police officers who had been involved in the events following the robbery. A procès-verbal of a telephone conversation, shortly after the bank robbery, between the third applicant's wife and her mother was also included in the evidence. Only the unidentified witnesses stated that they had recognised one or more of the applicants at the relevant time.   32.    In response to the final submissions of the defence, the Court held:   <Dutch>       "De bezwaren van de door de rechter-commissaris onder nummer       gehoorde getuigen om anoniem te blijven leveren voor het hof       voldoende argumenten op om die anonimiteit te handhaven. Het bij       pleidooi door de raadsman gedane verzoek om die getuigen alsnog       ter terechtzitting te horen wordt door het hof afgewezen, ook       voor het geval dat verzoek inhoudt dat zulks onder vermomming van       die getuigen zou kunnen plaatshebben, nu herkenning van die       getuigen op de openbare terechtzitting niet is uit te sluiten.         Met bedoelde argumenten om de anonimiteit van de getuigen te       handhaven heeft het hof met name het oog op de persoonlijke       veiligheid van de getuigen en hun gezinsleden, waaraan niet       afdoet dat die getuigen nog niet zijn bedreigd. Zoals reeds       verwoord in de interlocutoire beslissing van het hof d.d. 3       oktober 1990 gaat het in casu immers om buitengewoon ernstige       misdrijven, waarbij het sub 1 bewezenverklaarde is begaan om       herkenning en aanhouding door de politie te ontlopen en waarbij       de daders bereid zijn geweest een aantal mensenlevens op te       offeren. Onder die omstandigheden zijn de risico's die de onder       nummer gehoorde getuigen en hun gezinsleden lopen, indien die       getuigen uit de anonimiteit treden, c.q. hun anonimiteit niet       voldoende is gewaarborgd, van doorslaggevende aard. Voorzover       anonieme getuigen geweigerd hebben antwoord te geven op bepaalde       vragen is dit geschied om geen onderzoeksmethode prijs te geven       of om de persoonlijke anonimiteit of die van andere bij de zaak       betrokken opsporingsambtenaren te waarborgen.         Ook het hof zou deze gronden hebben gerespecteerd in het geval       de getuigen ter terechtzitting zouden zijn gehoord.         Bij zijn beslissing heeft het hof tevens in aanmerking genomen       dat door de raadsman niet, althans onvoldoende, is aangegeven       welke vragen - die nog niet aan de getuigen bij de rechter-       commissaris zijn gesteld - hij alsnog, naar aanleiding van het       verhoor van de getuigen ter terechtzitting in hoger beroep, aan       de anonieme getuigen zou willen stellen."   <Translation>       "The reasons for remaining anonymous advanced by those witnesses       heard under a number by the investigating judge, give the Court       of Appeal sufficient arguments to maintain their anonymity. The       request made by counsel in his final pleadings to have these       witnesses examined before the Court is rejected, also if the       request would aim at the hearing of these witnesses in disguise,       since recognition of the witnesses at the public hearing cannot       be excluded.         When referring to the arguments to maintain the anonymity of the       witnesses, the Court has paid special attention to the personal       security of the witnesses and their family members, a       consideration which is valid even though these witnesses have not       yet been threatened. As already stated in the Court's       interlocutory decision of 3 October 1990, the present case       involves exceptionally serious offences, and the acts established       under (1) have been committed to avoid recognition and arrest by       the police while the offenders were prepared to sacrifice a       number of human lives. What is decisive under these circumstances       is the risks incumbent upon the witnesses heard under a number       and their family members if these witnesses give up their       anonymity or if their anonymity is insufficiently guaranteed.       Insofar as the anonymous witnesses have refused to answer certain       questions, this has been done in order not to disclose an       investigation method or in order to safeguard the personal       anonymity or the personal anonymity of other investigation       officers involved in the case.         Also the Court of Appeal would have respected these grounds in       case the witnesses would have been examined before it.         In its decision the Court has also taken into account that       counsel has not, in any event not sufficiently, indicated which       questions - which so far have not been put to the witnesses       before the investigating judge - he still wishes to put to the       anonymous witnesses following the examination of witnesses at the       hearing on appeal."   33.    After having fully quoted the investigating judge's report on the hearings of the unidentified witnesses, the Court of Appeal found that it was not in conflict with Article 6 para. 3 (d) of the Convention to use their statements in evidence.   34.    The applicants appealed in cassation to the Supreme Court (Hoge Raad). They argued, inter alia, that the Court of Appeal, contrary to Article 6 paras. 1 and   3 (d) of the Convention, had used the statements of the unidentified witnesses in evidence to a decisive extent. They referred to the case-law of the European Court and Commission of Human Rights relating to unidentified witnesses and put particular emphasis on the Windisch judgment of 27 August 1990. The applicants argued that the criteria for the use of the statements of an unidentified witness in evidence, as defined by the Supreme Court following the Kostovski judgment of 20 November 1989 of the European Court, were not in conformity with the Convention.   35.    In support of this contention, the applicants argued that the judges sitting in the trial court were prevented from forming themselves an opinion on the reliability of the witnesses and their statements; they were fully dependent on the assessment of the investigating judge. Furthermore, the defence was restricted as the witnesses remained unidentified and refused to answer certain questions. They further pointed in this respect to the fact that those witnesses, who had not remained unidentified, had not been threatened, which implied that the fear of reprisals among the unidentified witnesses had been exaggerated. The presumption that the police officers could no longer function in their service if their identity was disclosed was an insufficient reason to maintain their anonymity. The applicants finally argued that the fact that the unidentified witnesses were police officers did not in itself make their statements more reliable.   36.    The Supreme Court rejected the appeal in four separate judgments on 9 June 1992. It found that the Court of Appeal had applied the correct criteria in its decision to maintain the anonymity of the eleven witnesses and in its subsequent decision to admit their statements in evidence. The Supreme Court found that the Convention provisions relied upon by the applicants had not been violated. It held, inter alia:   <Dutch>       "In aanmerking genomen       (1)   dat, zoals het Hof heeft vastgesteld, de anoniem gebleven       opsporingsambtenaren onder ede onderscheidenlijk belofte zijn       gehoord door de Rechter-Commissaris, die van hun onderscheiden-       lijke identiteit op de hoogte was, die gemotiveerd heeft doen       blijken van zijn oordeel omtrent hun betrouwbaarheid en omtrent       de redenen voor hun wens om anoniem te blijven, en die voorts de       verdachte en zijn raadsman in de gelegenheid heeft gesteld om aan       die opsporingsambtenaren vragen te stellen, van welke gelegenheid       uitvoerig gebruik is gemaakt zodat ook de verdediging het       waarheidsgehalte van de afgelegde verklaringen heeft kunnen       toetsen en bestrijden; en       (2)   het door het Hof kennelijk met het oog op de       betrouwbaarheid van de door de anonymi afgelegde verklaringen       vastgesteld verband tussen die verklaringen onderling en dat       tussen de verklaringen van de anonymi enerzijds en het niet       anonieme bewijsmateriaal anderzijds;       heeft het Hof zonder schending van het recht van de verdachte op       een eerlijk proces zoals bedoeld in de verdragsbepalingen die in       het middel als geschonden worden aangehaald de processen-verbaal       houdende de verklaringen van de anoniem gebleven opsporings-       ambtenaren voor het bewijs kunnen bezigen. Immers de hiervoren       onder (1) opgesomde, door het Hof vastgestelde, omstandigheden       vormen een voldoende tegenwicht tegen het nadeel dat de verdachte       zou hebben kunnen ondervinden als gevolg van de omstandigheid dat       de anoniem gebleven opsporingsambtenaren niet ter terechtzitting       zijn gehoord."   <Translation>       "Considering       (1)   that, as established by the Court of Appeal, the       investigating officers, who remained anonymous, were examined       under oath or affirmation by the investigating judge, who was       aware of their respective identities, who stated, giving reasons,       his opinion as regards their reliability and as regards the       reasons for their wish to remain anonymous, and who further gave       the accused and his counsel the opportunity to question those       investigating officers, of which opportunity extensive use has       been made so that also the defence was able to test and challenge       the veracity of the statements made; and       (2)   the connection established by the Court of Appeal -       apparently for the purpose of testing the reliability of the       statements made by the anonymous persons - between those       statements themselves and between those statements on the one       hand and the non-anonymous evidence on the other hand;       the Court of Appeal could use in evidence the procès-verbaux       containing the statements of the investigating officers, who       remained anonymous, without violating the suspect's right to a       fair trial within the meaning of the provisions of the Convention       which are mentioned in the means of cassation as being violated.       The circumstances referred to under (1), as established by the       Court of Appeal, form a sufficient counterbalance against the       disadvantage the suspect may have suffered as a result of the       fact that the investigating officers, who remained anonymous,       were not examined at a hearing before the trial court."     B.     Relevant domestic law   37.    Section 168 of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering, hereafter: "CCP") provides that each Regional Court has one or more investigating judges to whom criminal cases are entrusted. They are nominated, for a term of two years, by the competent Court of Appeal from amongst the members of the Regional Court.   38.    One of the tasks of the investigating judge is to conduct, in the context of a preliminary judicial investigation, a pre-trial investigation by gathering evidence in preparation of the subsequent examination of the case before the trial court. The investigating judge must act impartially, by also collecting evidence which might exculpate the suspect.   39.    The investigating judge will hear the suspect, witnesses and experts as soon as possible and as often as required (Section 185 CCP). The examination of witnesses and other activities by the investigating judge are recorded in procès-verbaux (Section 172 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 be put to the persons heard. Most investigating judges invite the accused and his counsel to attend when they hear witnesses.   40.    The law does not make the presence of counsel for the defence compulsory during the investigation by the police. The same applies to the preliminary judicial investigation by the investigating judge.   41.    If the public prosecutor finds that the results of the preliminary judicial investigation justify prosecution, he will notify the suspect and commit the latter for trial. The investigation at the trial will then follow.   42.    If, pending its examination, the trial court considers that a further investigation is called for, it can decide to refer the case back to the investigating judge indicating the object of the investigation and, if necessary, the way it should be carried out (Sections 316, 415 and 420 CCP)   43.    As regards 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 trial judge only if he has been fully convinced, after the investigation at the trial, by the contents of "legal means of evidence" (wettige bewijsmiddelen). Section 338 CCP embodies the principle of immediacy (onmiddellijkheidsbeginsel), according to which, inter alia, witnesses are obliged to appear before the trial court and only statements made in court can be accepted as valid evidence.   44.    The "legal means of evidence" 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.   45.    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, of 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."   46.    Sections 280 and 281-295 CCP contain various provisions concerning the examination of witnesses before the trial courts (for further details see, Eur. Court H.R., Kostovski judgment of 20 November 1989, Series A no. 166, pp. 14-15, paras. 25 and 26).   47.    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 of 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.    (...)."   48.    An anonymous statement contained in an official police report falls within the scope of sub-paragraph 2° of paragraph 1 of this Section.   49.    In the great majority of criminal cases in the Netherlands, in apparent contrast with the principle of immediacy, witnesses are not heard at the trial, but by the police and/or the investigating judge either before or pending the trial (see para. 39 above). 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" de auditu statements, i.e. 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.   50.    Until 1 February 1994 the Code of Criminal Procedure contained no express provisions concerning the use in evidence of statements by unidentified witnesses. However, with the increase in violent organised crime a need was felt to protect those witnesses who had justified reasons for fearing reprisals by granting them anonymity. The possibility to use in evidence statements by unidentified persons was examined and, under certain circumstances, found acceptable by the Supreme Court in a number of cases between 1980 and 1985 (for further details see, Eur. Court H.R., Kostovski judgment of 20 November 1989, loc. cit, pp. 16-17, paras. 31 and 32).   51.    Following the Court's judgment in the Kostovski case (loc. cit.), the Supreme Court defined the conditions under which statements of an unidentified 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 unidentified; moreover, 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).   52.    On 1 February 1994 the Act on the Protection of Witnesses (Wet Getuigenbescherming) entered into force, leading to an amendment to the Code of Criminal Procedure. Under the amended Code of Criminal Procedure, the judicial authorities may allow a "threatened witness" to remain unidentified in criminal proceedings concerning offences which seriously rock the legal order. According to Section 226a of the amended Code of Criminal Procedure such a situation arises when "in view of the statement to be made by the witness, the witness or another person may feel threatened to such an extent that it may reasonably be assumed that there is fear for the life, health or the safety or otherwise the breakdown of family life or the social-economic existence of that witness or that other person, and the witness has made it known that he is not willing, because of this threat, to make a statement".   53.    According to the Explanatory Memorandum to the Act on the Protection of Witnesses, it has been endeavoured to implement in this Act the principles established by the European Court of Human Rights in the cases of Kostovski (loc. cit.) and Windisch (judgment of 27 September 1990, Series A no. 186) and by the Netherlands Supreme Court in its judgment of 2 July 1990 (NJ 1990, no. 692) as regards the use in evidence of statements by unidentified witnesses (Tweede Kamer, 1991-1992, 22 483, nr. 3, paras. 4-5. pp. 7-13).   54. According to the wording of Section 344a of the amended Code of Criminal Procedure, a judge may not convict a person on the sole basis of statements of unidentified persons.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   55.    The Commission has declared admissible the applicants' complaint under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention that, in the criminal proceedings against each of them, they did not receive a fair hearing as the domestic courts used in evidence statements of unidentified persons in respect of whom the exercise of the defence rights was unacceptably restricted.     B.     Point at issue   56.    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 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention   57.    Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention, insofar as relevant, provide as follows:         "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;       (...)."   58.    The applicants complain that they did not have a fair trial in that unacceptable restrictions were placed on the exercise of their defence rights as regards the unidentified witnesses whose statements the trial courts relied upon in their respective judgments.   59.    The applicants submit that the judicial authorities dealing with their cases unjustly held that the preservation of the witnesses' anonymity was justified. They submit that the alleged fear of reprisals was not plausible in the absence of any concrete evidence of actual threats or anything which would justify fear of reprisals.   60.    In the applicants' view, they were denied an essential element of a fair trial, namely the cross-examination before the trial court of witnesses who gave incriminating evidence. The applicants submit that they were not given an adequate opportunity by the investigating judge to test the reliability of the unidentified witnesses. The mere existence of an opportunity in some way to question witnesses does not necessarily mean that the opportunity is adequate. It was not adequate in their respective cases given the way the examination before the investigating judge took place. Important questions remained unanswered and the witnesses could not be observed during their examination.   61.    The applicants consider that the principle of immediacy, the principle according to which the evidence should be produced and taken before the trial court itself, has been violated in respect of the unidentified witnesses' statements. The applicants submit that they were denied the opportunity to have the trial court form its own opinion of the reliability of the evidence given. They consider this a crucial flaw given that their convictions were mainly based on evidence given by unidentified witnesses. They argue that, even if it would have been necessary to hear witnesses whose identity was not disclosed, certain alternative measures could have been taken, such as hearing the witnesses in camera, or in the absence of the accused.   62.    The Government submit, referring to the European Court's findings in the cases of Kostovski (loc. cit.) and Lüdi (Eur. Court H.R., judgment of 15 June 1992, Series A no. 238) as regards the use in evidence of statements made by unidentified persons, that the proceedings at issue were in conformity with the principles formulated by the European Court in those two judgments. They are therefore of the opinion that the proceedings in the present case complied with the requirements of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention.   63.    In the Government's opinion, the use made of the statements by the unidentified witnesses in the present case further fully complied with the conditions laid down in the Supreme Court's case-law following the European Court's judgment in the Kostovski case (loc. cit.). The statements were taken down by a judge, i.e. the investigating judge, who knew the identity of the witnesses, who expressed his opinion in the procès-verbal on his findings, furnished with reasons, in respect of the witnesses' justification for wishing to remain unidentified and these witnesses' reliability, and who provided the defence with ample opportunity to question each of the witnesses, who were examined under oath or affirmation.   64.    Furthermore, the Government point out that, like the investigating judge, the Court of Appeal accepted the reasons for the witnesses' wish to remain unidentified and the fact that certain questions put to these persons remained unanswered. In its decision on the request of the defence to have these witnesses examined before the Court of Appeal, the court noted that