CEDH · CASELAW;RESOLUTIONS;EXECUTION;ENG — 9 juin 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 }       The Committee of Ministers, under the terms of Article 54 (art. 54) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"),        Having regard to the judgments of the European Court of Human Rights in the case of Kostovski against the Netherlands delivered on 20 November 1989 and 29 March 1990 and transmitted the same days to the Committee of Ministers;        Recalling that the case originated in an application against the Netherlands lodged with the European Commission of Human Rights on 18 March 1985 under Article 25 (art. 25) of the Convention by Mr Slobodan Kostovski, a Yugoslav national, who complained of not having had a fair trial, notably in that he was not given the opportunity to have questions put to the anonymous witnesses and in that he was unable to challenge their statements;        Recalling that the case was brought before the Court by the Commission on 18 July 1988 and by the Government of the Netherlands on 15 September 1988;        Whereas in its judgment of 20 November 1989 the Court:        - held, unanimously, that there had been a violation of paragraph 3.d taken together with paragraph 1 of Article 6 (art. 6-3-d, art. 6-1) of the Convention;        - held, by seventeen votes to one, that the question of the application of Article 50 (art. 50) was not ready for decision;        Whereas in its judgment of 29 March 1990 the Court, after having taken formal note of a friendly settlement reached by the Government of the Netherlands and the applicant in respect of the latter's claims under Article 50 (art. 50) and having found that the settlement reached was "equitable" within the meaning of Rule 53, paragraph 4, of the Rules of the Court, decided, unanimously, to strike the case out of its list;        Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 (art. 54) of the Convention;        Having invited the Government of the Netherlands to inform it of the measures which had been taken in consequence of the judgments of 20 November 1989 and 29 March 1990, having regard to its obligation under Article 53 (art. 53) of the Convention to abide by it;        Whereas, according to the above-mentioned friendly settlement, it has been decided that the applicant would receive the sum of 150 000 Dutch guilders as just satisfaction for the non-pecuniary damage represented by his detention in the Netherlands;        Whereas, during the examination of the case by the Committee of Ministers, the Government of the Netherlands gave the Committee information about the measures taken in consequence of the judgments, which information appears in the appendix to this resolution;        Having satisfied itself that the Government of the Netherlands has paid the applicant the sum provided for in the friendly settlement of 29 March 1990,        Declares, after having taken note of the information supplied by the Government of the Netherlands, that it has exercised its functions under Article 54 (art. 54) of the Convention in this case.                  Appendix to Resolution DH (94) 47     Information provided by the Government of the Netherlands          during the examination of the Kostovski case                  by the Committee of Ministers        A number of modifications to the Code of Criminal Procedure introduced by the Act of 11 November 1993 (Staatsblad 603/1993), which entered into force on 1 February 1994, provide new regulations as to who may testify without having to reveal his identity and as to the methods to be used in order to safeguard the rights of the accused in case such testimony is to be used in criminal proceedings.   The Government of the Netherlands considers that these changes will prevent the repetition of the kind of violation of Article 6, paragraphs 1 and 3.d (art. 6-1, art. 6-3-d), found by the Court in the Kostovski case.        The persons who may testify without revealing their name, age, profession, place of residence or their relation to the accused are defined in Article 190.   These persons are on the one hand those who fall within the category of "threatened witnesses" (as defined in Articles 136.c and 226.a) and, on the other, those who may, as a result of their testimony, encounter problems or be hindered in the exercise of their profession.        Whether or not a person is to be entitled not to reveal his identity is decided by the investigating judge after having heard the witness himself, the prosecution and the defence.   The decision is subject to appeal (Article 226.a).        The procedure for taking evidence from a "threatened witness" is laid down in Article 226.b-f: The hearing is conducted by the investigating judge who may order that the defence not be present at the interrogation, in which case the prosecution is also excluded from the hearing.   The defence and the prosecution must, however, subsequently be informed of the witness' statement and be offered an opportunity to put questions of their own, either by some means of telecommunication or in writing.   If the investigating judge does not allow the answer to a question to be communicated, the transcript of the hearing shall simply indicate that the question was answered.        If the defence requests the hearing of a "threatened witness" at the trial, the evidence shall be taken by the investigating judge in the manner outlined in Article 226.        The statements of an anonymous witness may only be accepted at the trial if the person concerned has been designated as a "threatened witness" and if the crime at issue is severe enough to justify pre-trial detention and constitutes, in view of the nature of the crime, the organised nature of the criminal activities or the connection with other crimes committed by the accused, a serious breach of the legal order (Article 342).   The statements made by a "threatened witness" pursuant to Article 226 is read out at the trial hearing and is considered as having been made there (Article 295).        Statements made by other anonymous witnesses may only be used if there is strong corroborating evidence and the defence has not asked the witness to be interrogated (Article 334).        Statements made by "threatened witnesses" or persons whose identity may not be revealed shall not by themselves - without corroboration from other evidence - constitute proof of the accused's guilt (Article 344.a).   In addition, if the statement from such a person is used as evidence, the judgment must indicate the underlying reasons (Article 360).