EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 26668/95

Frederik Karel Paul Maria Visser

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 1 March  1999)

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- 33) ...................................................... 4

III. OPINION OF THE COMMISSION

(paras. 34-56) ....................................................... 8

A. Complaint declared admissible

(para. 34) ...................................................... 8

B. Point at issue

(para. 35) ...................................................... 8

C. As regards Article 6 paras. 1 and 3 (d) of the Convention

(paras.  36- 55) ................................................. 8

CONCLUSION

(para. 56) ..................................................... 11

DISSENTING OPINION OF MR S. TRECHSEL .............................. 12

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION ............... 13

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION ............. 18

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 1947, and residing in Soest, the Netherlands. He was represented before the Commission by Mr Hendrik H. Rieske, a lawyer practising in Amsterdam.

3 . The application is directed against the Netherlands. The respondent Government were represented by their agent, Mr Roeland Böcker, of the Netherlands Ministry of Foreign Affairs.

4 . The case concerns the use in evidence of a statement made by an anonymous witness against the applicant. The applicant invokes Article 6 paras. 1 and 3 (d) of the Convention.

B. The proceedings

5 . The application was introduced on 5 December 1994 and registered on 8 March 1995.

6 . On 27 November 1996 the Commission (Second Chamber) 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 the parties to submit written observations on the admissibility and merits of the applicant's complaints under Article 6 paras. 1 and 3 (d). It declared the remainder of the application inadmissible.

7 . The Government's observations were submitted on 28 March 1997 after an extension of the time-limit fixed for this purpose. The applicant replied on 26 May 1997.

8 . On 13 January 1998 the case was transferred from the Second Chamber to the Plenary Commission, by decision of the latter.

9 . On 19 January 1998 the Commission declared the application admissible.

10 . The text of the Commission's decision on admissibility was sent to the parties on 23 January 1998 and they were invited to submit such further information or observations on the merits as they wished. Neither party availed itself of this possibility.

11 . After declaring the case admissible, the Commission, acting in accordance with former Article 28 para. 1 (b) of the Convention [1] , 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

12 . The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM. S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

Sir Nicolas BRATZA

MM. I. BÉKÉS

G. RESS

A. PERENIĆ

C. BÃŽRSAN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM. R. NICOLINI

A. ARABADJIEV

13 . The text of this Report was adopted on 1 March 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

14 . The purpose of the Report, pursuant to former 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 . The Commission's decisions on the admissibility of the application are annexed hereto.

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

17 . 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 said according to rumours to have, but had in fact not, carried out.             

18 . 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.

19 . 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.

20 . 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.

21 . 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:

"The investigation has shown that several witnesses saw 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 Visser [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."

22 . The applicant filed an appeal in cassation against this judgment with the Supreme Court ( Hoge Raad ).

23 . 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.             

24 . On 18 June 1993 a public hearing took place before this Court of Appeal. The Court instructed the investigating judge ( rechter-commissaris ) of the Regional Court of 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 investigating judge noted that the statement of the witness appeared to be consistent and that it corresponded to the statement given previously to the police. In the opinion of the investigating judge, it could be concluded that the witness was a reliable witness. 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 of being violent. It appears from the procès-verbal that the witness made some other remarks relating to his wish to remain anonymous but that the investigating judge excluded them from the procès-verbal as they might have led to the witness’s identity being disclosed.

25 . 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 the 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 from the lawyer 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.

26 . The applicant’s lawyer also asked the witness why he was so afraid and why he wished to remain anonymous. In reply, the witness stated that he had given his reasons at the beginning of his statement to the investigating judge. The witness added that some of these reasons had not, however, been noted down by the investigating judge as the latter had considered that by doing so the witness’s anonymity could not be sufficiently guaranteed.

27 . 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, and of this opportunity the lawyer availed himself.

28 . At the subsequent hearing before the Court of Appeal on 15 September 1993 the applicant’s lawyer submitted that the hearing of a witness who could neither be seen nor heard by the defence and who did not appear before the trial court remained problematic. The lawyer also queried whether the anonymous witness’s fear of reprisals was real or play-acted. He further argued that the scent-association test carried out by sniffer dog Noesjka could not be relied upon since a similar test carried out by a sniffer dog Nero had not resulted in the applicant’s scent being associated with the scent on a revolver.

29 . 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 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 to the effect that he had been forcibly taken from his house and beaten up, inter alia with the butt of a chrome coloured revolver, by two men unknown to him;

- 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 chrome coloured 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 the sniffer dog Noesjka, 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.

30 . Unlike the Court of Appeal of Amsterdam, the Court of Appeal of The Hague did thus not make use of the statement made by the anonymous witness to the police on 28 April 1988, but only to his statement before the investigating judge. The other means of evidence were essentially the same as those employed by the Court of Appeal of Amsterdam in its judgment of 18 April 1991.

31 . The Court of Appeal’s judgment contained no assessment as to the reliability of the statement of the anonymous witness or as to the validity of the witness’s desire to remain anonymous.

32 . 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.

33 . The Supreme Court rejected the appeal in cassation on 7 June 1994. The Supreme Court considered that the conclusion of the investigating judge that there were circumstances justifying the anonymity of the witness did not constitute an incorrect interpretation of the law and was not incomprehensible. In respect of the applicant’s complaints relating to the photographs which had originally been shown to the anonymous witness, the Supreme Court noted that the contents of the procès-verbal of 28 April 1988 had not been used in evidence against the applicant by the Court of Appeal.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

34 . The Commission has declared admissible the applicant’s complaint that in the criminal proceedings against him he did not receive a fair hearing as the domestic courts used in evidence a statement of an anonymous witness in respect of whom the exercise of the defence rights was unacceptably restricted.

B. Point at issue

35 . The point at issue is accordingly whether there has been a violation of Article 6 paras. 1 and 3 (d) of the Convention.

C. As regards Article 6 paras. 1 and 3 (d) of the Convention

36 . Article 6 paras. 1 and 3 (d) 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;

…”

37 . The applicant complains that the manner in which the anonymous witness was heard did not do justice to his right to a fair trial. The applicant’s lawyer 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 the lawyer 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.

38 . Furthermore, the witness was not again confronted with the photographs he had been shown on 28 April 1988 but was merely asked to confirm the statement he had made before. In addition, the hearing of the anonymous witness by the investigating judge six years after the alleged offence had been committed could not remedy the error made in the first instance proceedings.

39 . 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 of the victim, Mr A, as such had taken place.

40 . 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.

41 . 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.

42 . 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.

43 . As the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1 of the Article, the Commission will consider the applicant’s complaint under the two provisions taken together (see Eur. Court HR, T. v. Italy judgment of 12 October 1992, Series A no. 245-C, p. 41, para. 25).

44 . The Commission recalls that the admissibility of evidence is primarily governed by the rules of domestic law, and that as a general rule it is for the domestic courts to assess the evidence before them (cf. Eur. Court HR, Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 56, para. 43). Applying this principle to the present case, it means that the Commission cannot be called upon to examine the fact that a statement of a witness used in evidence against the applicant was made six years after the alleged offence was committed. Nor is the Commission competent to express an opinion in respect of probative value being awarded to this statement which was drawn up without the witness being asked once again to identify the applicant from the photographs shown to the witness previously.

45 . However, for the purposes of the Convention it must be ascertained whether the proceedings in their entirety, including the way in which evidence was taken, were fair (cf. Eur. Court HR, Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, pp. 34-35, para. 34).

46 . All evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. Nevertheless, the Convention does not preclude reliance, at the investigation stage, on sources such as anonymous witnesses provided that the rights of the defence have been respected. As a rule, these rights require that the accused be given an adequate and proper opportunity to challenge and question a witness against him, either when making his statements or at a later stage of the proceedings (cf. Eur. Court HR, Asch v. Austria judgment of 26 April 1991, Series A no. 203, p. 10, para. 27; Kostovski v. the Netherlands judgment of 20 November 1989, Series A no. 166, p. 20, para. 41).

47 . In its Doorson judgment the Court noted the following:

“It is true that Article 6 does not explicitly require the interests of witnesses in general ... to be taken into consideration. However, their life, liberty or security of person may be at stake, as may interests coming generally within the ambit of Article 8 of the Convention. Such interests of witnesses … are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses … called upon to testify.” (Eur. Court HR, Doorson v. the Netherlands judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, p. 470, para. 70).

48 . However, if the anonymity of prosecution witnesses is maintained, the defence will be faced with difficulties which criminal proceedings should not normally involve. Accordingly, the Court has recognised that in such cases Article 6 paras. 1 and 3 (d) require that the handicaps under which the defence labours be sufficiently counterbalanced by the procedures followed by the judicial authorities (op. cit., p. 471, para. 72). In view of the place that the right to a fair administration of justice holds in a democratic society, any measures restricting the rights of the defence should be strictly necessary. If a less restrictive measure can suffice then that measure should be applied (cf. Eur. Court HR, Van Mechelen and Others v. the Netherlands judgment of 23 April 1997, Reports 1997-III, p. 712, para. 58).

49 . Moreover, even when “counterbalancing” procedures are deemed to have been sufficient, a conviction should not be based either solely or to a decisive extent on anonymous statements (Doorson v. the Netherlands judgment, op. cit., p. 472, para. 76; Van Mechelen and Others v. the Netherlands judgment, op. cit., p. 712, para. 55).

50 . The Commission notes that in the present case the anonymous witness made a statement, which was later used in evidence against the applicant, before an investigating judge in a room from which the accused and even his lawyer were excluded. The applicant’s lawyer attended this interview in a different room. The lawyer was thus not only unaware of the identity of the witness but was also prevented from observing the witness’s demeanour under direct questioning, and thus from testing his reliability (see the above-mentioned Kostovski v. the Netherlands judgment, op. cit., p. 20, para. 42 in fine ; and the Van Mechelen and Others v. the Netherlands judgment, op. cit., p. 712, para. 59). Moreover, contrary to the circumstances under which the anonymous police officers were heard in the Van Mechelen and Others case, there was no sound link between the room where the witness was and that where the lawyer was. The applicant’s lawyer was only given the opportunity to put questions to the witness indirectly through the investigating judge after having read the witness’s statement.

51 . The Commission considers that it has not been provided with a convincing explanation of why it was necessary to limit to such an extent the right of the applicant to have the evidence against him given in his, or his lawyer’s, presence. It is not persuaded that less far-reaching measures could not have sufficed, such as the presence of the applicant’s lawyer in the room where the interview took place as was the case in the Doorson v. the Netherlands case (op. cit., p. 471, para. 73).

52 . It is true that the applicant’s lawyer was enabled to put, through the investigating judge, questions to the anonymous witness. However, part of the witness’s statement relating to the reasons for his desire to remain anonymous was not disclosed to either the applicant or his lawyer (paras. 24 and 26 above). The Commission observes, moreover, that even though the applicant’s lawyer expressed his doubts as to the validity of these reasons before the Court of Appeal of The Hague (para. 28 above), it does not appear from this Court’s judgment that it made any effort to assess the threat of reprisals against the anonymous witness (see the Van Mechelen and Others v. the Netherlands judgment, op. cit., p. 713, para. 61) or that it treated the statement of the anonymous witness “with the necessary caution and circumspection” (see the Doorson v. the Netherlands judgment, op. cit., p. 472, para. 76 in fine ).

53 . As the Court found in the Van Mechelen and Others case, the fact that the anonymous witness was questioned by an investigating judge, who had himself ascertained the witness’s identity and who had stated his opinion on the witness’s reliability and credibility as well as his reasons for remaining anonymous, cannot be considered a proper substitute for the possibility of the defence to question the witness in their presence and make their own judgment as to his demeanour and reliability (op. cit., p. 713, para. 62). The Commission accordingly finds that the handicaps under which the defence laboured were not counterbalanced by the above procedures.

54 . Finally, the Commission considers that the applicant’s conviction was “to a decisive extent” based on the statement of the anonymous witness. The other means of evidence used by the Court of Appeal of The Hague did not provide positive identification of the applicant as the perpetrator of the crime. It is true that a test carried out with a sniffer dog connected the applicant with the revolver carrying traces of blood which could have come from the victim. However, this test, the reliability of which was disputed by the applicant, had previously been used in evidence by the Court of Appeal of Amsterdam. The Commission notes in this respect that when the Supreme Court quashed the judgment of that Court of Appeal on 14 September 1992 in view of the use in evidence of the statement made by the anonymous witness to the police, 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 (para. 23).

55 . In these circumstances, the Commission cannot find that the proceedings taken as a whole were fair.

CONCLUSION

56 . The Commission concludes, by 27 votes to 1, that in the present case there has been a violation of Article 6 paras. 1 and 3 (d) of the Convention.

M.-T. SCHOEPFER S. TRECHSEL

     Secretary President

   to the Commission of the Commission

Or. English

DISSENTING OPINION OF MR S. TRECHSEL

I fully accept that the opinion of the majority of the Commission in this case is in conformity of that expressed by a majority of the Court in the Van Mechelen and Others v. the Netherlands judgment of 23 April 1997, Reports 1997-III, p. 691. I fully adhere to the view expressed by the Commission in that case and by Judge Van DIJK in his dissenting opinion.

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.