CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 19 janvier 1998

.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. 26668/95                       by Frederik Karel Paul Maria VISSER                       against the Netherlands        The European Commission of Human Rights sitting in private on 19 January 1998, the following members being present:              Mr     S. TRECHSEL, President            MM     J.-C. GEUS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER            Mrs    G.H. THUNE            MM     H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV              Mr     M. de SALVIA, Secretary to the Commission          Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 5 December 1994 by Frederik Karel Paul Maria VISSER against the Netherlands and registered on 8 March 1995 under file No. 26668/95;        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      28 March 1997 and the observations in reply submitted by the      applicant on 26 May 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Dutch citizen, born in 1947, and residing in Soest, the Netherlands. Before the Commission he is represented by Mr. H.H. Rieske, a lawyer practising in Amsterdam.        The facts of the case, as submitted by the applicant, may be summarised as follows.        In April 1988 preliminary judicial investigations were initiated into allegations that the applicant and an accomplice, Mr D, had intentionally deprived another person, Mr A, of his liberty on 30 September 1987. In a statement taken by the police and recorded in a procès-verbal of 30 September 1987, Mr A said that he had been kidnapped and beaten up by two men whom he did not know. He suspected that they had acted at the orders of another man, Mr G, and that his being kidnapped had constituted an act of revenge for a burglary which he, Mr A, was rumoured to have, but had in fact not, carried out.        On 17 August 1988 the applicant was summoned to appear before the Regional Court (Arrondissementsrechtbank) of Utrecht on 18 October 1988. He was charged, inter alia, with having been an accomplice to the offence of intentionally and unlawfully depriving Mr A of his liberty and keeping him deprived thereof.        On 1 June 1989 the Regional Court acquitted the applicant of this charge, convicted him of another charge and sentenced him to a partially suspended term of ten weeks' imprisonment less the time spent in pre-trial detention. By judgment of the same date the Regional Court also acquitted the applicant's co-accused, Mr D.        Both the applicant and the Prosecutions Department filed an appeal against the Regional Court's decision with the Court of Appeal (Gerechtshof) of Amsterdam. No appeal was filed against the judgment concerning Mr D.        Following a public hearing on 4 April 1991, the Court of Appeal quashed the Regional Court's judgment on 18 April 1991, convicted the applicant, inter alia, of having deprived Mr A of his liberty and sentenced him to one year's imprisonment less the time spent in pre- trial detention. The Court of Appeal used the statement of a witness, which was contained in a procès-verbal drawn up by two police officers on 28 April 1988, in evidence. In this procès-verbal the witness was not identified by name. The contents of the part of the procès-verbal used by the Court read as follows:   <Translation>      "The investigation has shown that several witnesses have seen      Mr G, who was known to them, with two other persons in bars in      Weesp in the night of 29 to 30 September. These witnesses also      heard that these three persons made inquiries into the      whereabouts of the victim Mr A.      One witness was shown twelve photographs, including pictures of      the suspects Mr D, [the applicant] and Mr G. The witness stated      that he was 100% sure of recognising from the photographs the      three named persons as being the persons who had made inquiries      into the whereabouts of the victim on 29 and 30 September 1987      in Weesp. The witness had subsequently seen that Mr D and [the      applicant] had left together with the victim's brother, while      Mr G had stayed behind in the bar in Weesp, where shortly      afterwards this Mr G had been approached by [the applicant], who      had returned in the meantime, and who took Mr G outside."        The applicant filed an appeal in cassation against this judgment with the Supreme Court (Hoge Raad).        On 14 September 1992 the Supreme Court quashed the judgment of the Court of Appeal. The Supreme Court considered that the way in which the facts had been established by the Court of Appeal did not meet the legal requirements. It recalled that the statement of an anonymous witness could only be used in evidence if it had been taken down by a judge who knew the identity of the witness, who had expressed his opinion as regards the reasons for the witness's desire to remain anonymous and this witness's reliability, and who had provided the defence with ample opportunity to question the witness. The Supreme Court added that it could not be said that the finding of guilt was to a significant extent based on other evidence from non-anonymous sources. The Supreme Court referred the case to the Court of Appeal of The Hague.        On 18 June 1993 a public hearing took place before this Court of Appeal. The Court instructed the investigating judge (rechter- commissaris) in Utrecht to hear the anonymous witness. This interview took place on 13 September 1993. The investigating judge was aware of the identity of the witness. In the procès-verbal of the interview the judge noted that the statement of the witness appeared to be consistent and that it corresponded to the statement given earlier to the police. Furthermore the judge noted that the wish of the witness to remain anonymous was based on the ground that the witness feared reprisals since the offence with which the applicant had been charged and in respect of which the witness was asked to testify had in itself concerned an act of revenge. Moreover, the witness told the investigating judge that one of the applicant's co-accused had a reputation for being violent.        A number of questions were put to the witness at the request of the applicant's lawyer, who had submitted these questions to the investigating judge. In reply to one of these questions the witness said that when he had been interviewed by police, around 18 April 1988, he had been handed a bundle of about fifteen photographs. He had taken out three photographs of persons whom he had recognised. In reply to a further question the witness stated that following a telephone conversation with the investigating judge prior to the interview, he had once had contact by telephone with one of the police officers who had been involved in the investigation into the alleged offence.        The applicant's lawyer attended this interview in a different room. According to the procès-verbal of the interview, the investigating judge twice gave the lawyer the opportunity to read through the statement of the witness and to put questions, to be asked by the investigating judge, to the witness, of which opportunity the lawyer availed himself.        On 29 September 1993 the Court of Appeal quashed the Regional Court's judgment of 1 June 1989, convicted the applicant, inter alia, of having deprived Mr A of his liberty and sentenced him to one year's imprisonment less the time spent in pre-trial detention. It appears from the Court's judgment that it accepted the reasons for the anonymous witness's wish to remain anonymous and that it based its finding of guilt on the following means of evidence:   -     a procès-verbal of 30 September 1987, drawn up by a police officer, containing the statement of the victim Mr A;   -     a procès-verbal of 30 September 1987 containing a statement from the police officers who had found Mr A to the effect that when they were driving Mr A home the latter had recognised the car in which he had been held and mistreated;   -     a procès-verbal of 30 September 1987 containing a statement from the same police officers to the effect that they had found traces of blood on the car indicated by Mr A and that they had arrested Mr G near the car;   -     a procès-verbal of 20 October 1987 drawn up by the technical investigation department and a report by a forensic laboratory (Gerechtelijk Laboratorium) dated 14 December 1987 indicating that the traces of blood which had been found on the inside and outside of the car and on a revolver and jacket found inside the car could have come from Mr A;   -     a procès-verbal of 14 March 1988 drawn up by a police officer and a procès-verbal of 25 April 1988 drawn up by the officer who had been in charge of a scent-association test which had been carried out with a sniffer dog, to the effect that this dog had three times associated the scent on the butt of the revolver which had been found in the car with an object which had been held by the applicant;   -     the statement of the anonymous witness to the investigating judge; and   -     the statement which the applicant had made at the hearing before the Court of Appeal to the effect that he knew the co-accused Mr G and Mr D well, that the car in question had been used by Mr G in the period around 30 September 1987, that Mr D and he would regularly drive the car and that the telephone which had been present in the car had been registered in his name.        The applicant filed an appeal in cassation with the Supreme Court. He complained, inter alia, that insufficient facts and/or circumstances had been adduced justifying the need for the witness to remain anonymous and that the statement of the anonymous witness could not be relied upon as it had been taken almost six years after the alleged offence. The applicant further submitted that the series of photographs from which the anonymous witness was said to have selected the photograph of the applicant had not been put before the investigating judge. Neither the investigating judge nor the defence had therefore been in a position to assess the nature of the photographs, the way in which they were presented or the certainty of the recognition. The Supreme Court rejected the appeal in cassation on 7 June 1994.     COMPLAINT        The applicant complains that the domestic courts violated Article 6 paras. 1 and 3 (d) of the Convention by using the statements of an anonymous witness in evidence although this witness had been interviewed by the investigating judge six years after the alleged offence had taken place. Moreover, the applicant submits that the manner in which the anonymous witness was heard infringed the rights of the defence.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 5 December 1994 and registered on 8 March 1995.        On 27 November 1996 the Commission decided to communicate the applicant's complaint concerning the use in evidence of a statement made by an anonymous witness to the respondent Government and to declare the remainder of the application inadmissible.        The Government's written observations were submitted on 28 March 1997, after an extension of the time-limit fixed for that purpose.   The applicant replied on 26 May 1997.     THE LAW        The applicant complains that a statement made by an anonymous witness was used in evidence against him. He invokes Article 6 (Art. 6) of the Convention which, insofar as relevant, provides as follows:        "1.    In the determination ... of any criminal charge against      him, everyone is entitled to a fair and public hearing ... by a      ... tribunal established by law.        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 criteria, defined by the European Court of Human Rights, in order to assess whether statements from anonymous witnesses may be used in evidence have been fully complied with in the present case. Thus, the statement used had been made in the presence of a judge who had ascertained the witness's identity. This judge also gave his view of the witness's reliability and credibility, and in doing so referred to the consistency of the statement made before him with that which had been made to the police not long after the incident. The Government argue that for this reason it cannot be said that the long period of time which elapsed between the offence taking place and the statement being made before the investigating judge rendered this statement unreliable.        The Government further point to the fact that the investigating judge expressed his reasoned opinion of the witness's wish to remain anonymous. Moreover, counsel for the applicant was present at the time when the anonymous witness made his statement to the investigating judge. Although he was sitting in a different room, counsel was given the opportunity to have questions put to the witness, to read through the witness's statement and then to have fresh questions put.        The Government finally submit that the statement of the anonymous witness was not the only evidence on which the Court of Appeal based its conviction of the applicant.        The applicant maintains that the hearing of the anonymous witness by the investigating judge six years after the alleged offence did not remedy the error made in the first instance proceedings. Moreover, the manner in which the witness was heard did not do justice to the applicant's right to a fair trial. Thus, the witness was not shown the photographs again but was merely asked to confirm the statement he had made before. Moreover, it appears that the witness had been in contact with the police officers who had previously questioned him prior to the interview with the investigating judge and it can thus not be excluded that the police reminded him of what he had stated in April 1988.        Counsel for the applicant was at no time given the opportunity to see the witness and he was therefore unable to observe the witness's demeanour during questioning. Nor was counsel given the opportunity to express his views as to the validity of the witness's reasons for wanting to stay anonymous. This was important since five and a half years had passed since the witness had made the initial statement and the co-accused, of whom the witness had said to be afraid, had already been acquitted in 1988 and had never given any cause to fear that he would resort to violence.        The applicant finally submits that his conviction was, to a decisive extent, based on the statement of the anonymous witness. The other material used in evidence by the Court of Appeal did not contain an indication of the guilt of the applicant but merely served to show that the deprivation of liberty as such had taken place.        The Commission notes in the first place that in the proceedings before the Supreme Court the applicant did not explicitly complain of the limited way in which the defence had been allowed to put questions to the anonymous witness. The question thus arises whether the applicant has complied with the requirement of exhaustion of domestic remedies as laid down in Article 26 (Art. 26) of the Convention. The Commission recalls, however, that this condition is fulfilled if the complaint made before it has been raised at least in substance in the domestic proceedings and that the condition does, therefore, not necessarily require a particular reference to the Convention (cf. No. 11921/86, Dec. 12.10.88, D.R. 57, p. 81; No. 16278/90, Dec. 3.5.93, D.R. 74, p. 93). Moreover, Article 26 (Art. 26) must be applied with some degree of flexibility and without excessive formalism (cf. Eur. Court HR, Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, p. 17, para. 30; and K.-F. v. Germany judgment of 27 November 1997, to be published in Reports 1997, para. 46).        The Commission notes that the applicant complained to the Supreme Court that there were insufficient reasons for maintaining the witness's anonymity and that, as regards the photographs used to identify the applicant, the defence had not had the opportunity to observe the witness's demeanour. The Commission accepts that this amounts to a complaint concerning the way in which the applicant or counsel for his defence were able to examine a witness against him. In the Commission's view, this amounts to a complaint of a violation of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention. Accordingly, the applicant must be considered to have satisfied the requirement of exhaustion of domestic remedies.        Having regard to the parties' submissions and the case-law of the Convention organs, the Commission considers that the present application raises complex questions of fact and law which require an examination of the merits. This complaint cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.        For these reasons, the Commission, by a majority,        DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without      prejudging the merits of the case.           M. de SALVIA                           S. TRECHSEL          Secretary                              President       to the Commission                      of the Commission