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:

      "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."

      "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:

      "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."

      "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:

      "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:

      "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 the defence had amply availed

itself of the opportunity to question the unidentified witnesses during

their examination before the investigating judge. It further considered

that the defence had failed to indicate with sufficient clarity, which

questions - which had not yet been put to these witnesses in the course

of their examination before the investigating judge - it would wish to

put to the unidentified witnesses before the Court of Appeal.

65.   Finally, the Government submit that neither Dutch law nor the

Convention acknowledges an unrestricted right to question witnesses,

and that the applicants were not convicted on the sole basis of

statements by unidentified witnesses, but also on the basis of

statements made by identified witnesses and other independent

corroborating evidence.

66.   As the guarantees in para. 3 (d) of Article 6 (Art. 6-3-d) are

specific aspects of the right to a fair trial set forth in para. 1 of

this article, the Commission will consider the applicants' complaint

under the two provisions taken together (cf. Eur. Court H.R., T. v.

Italy judgment of 12 October 1992, Series A no. 245-C, p. 41, para.

25).

67.   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 H.R., Saïdi judgment of 20 September 1993, Series A

no. 261-C, p. 56, para. 43).

68.   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. H.R.,

Edwards judgment of 16 December 1992, Series A no. 247-B, pp. 34-35,

para. 34).

69.   All evidence must normally be produced in the presence of the

accused at a public hearing with a view to adversarial argument.

However, the use as evidence of statements obtained at the stage of the

police inquiry or the judicial investigation is not in itself

inconsistent with paragraphs 3 (d) and 1 of Article 6

(Art. 6-3-d, 6-1),  provided that the rights of the defence have been

respected. As a rule these rights require that the defendant be given

an adequate and proper opportunity to challenge and question a witness

against him, either when the witness was making his statement or at a

later stage of the proceedings (cf. Eur. Court H.R., Kostovski

judgment, loc. cit., pp. 20-21, paras. 41-45; Windisch judgment, loc.

cit., pp. 10-11, paras. 26-31; Lüdi judgment, loc. cit., p. 21, paras.

47-50; and Saïdi judgment, loc. cit., p. 56, para. 43).

70.   The Court, however, has also accepted that there are exceptions

to the general principle that all the evidence must be produced in the

presence of the accused at a public hearing with a view to adversarial

argument, insofar as the rights of the defence are not infringed (Eur.

Court H.R., Kostovski judgment, loc. cit., p. 20, para. 41; and Lüdi

judgment, loc. cit., p. 21, para. 47).

71.   The Commission notes that the court which in the last resort

examined the questions of evidence in the proceedings at issue was the

Court of Appeal of 's-Hertogenbosch. It appears from that court's

respective judgments that it based its finding of guilt to a large

extent, although not exclusively, on the statements of the unidentified

police officers.

72.   The Commission must therefore examine whether these unidentified

police officers gave their evidence under conditions which ensured the

applicants' rights of defence and their right to a fair trial.

73.   The Commission notes that in the present case the Court of

Appeal, for reasons of efficiency, decided to refer the case to the

investigating judge in order to hear all twenty-one witnesses,

including the eleven unidentified police officers, under the explicit

instruction that, in principle, all questions the defence wished to put

to these witnesses should be asked.

74.   The Commission further notes that the investigating judge was

aware of the identity and function of each unidentified witness, of

these witnesses' private and/or professional reasons for their wish to

remain unidentified and that the investigating judge expressed his

findings as regards the credibility of these reasons and the

reliability of these witnesses.

75.   The Commission also notes that the defence was provided with

ample opportunity to question each witness heard before the

investigating judge, who could directly observe the witnesses'

demeanour during questioning. Having regard to the length of time

during which each individual witness was heard, the defence apparently

made extensive use of the opportunity to put questions to these

witnesses.

76.   The Commission finally notes that the Court of Appeal rejected

the subsequent requests by the defence for a further hearing of the

unidentified witnesses before the Court of Appeal itself, finding inter

alia that the defence has insufficiently indicated which questions it

still wished to put to these witnesses.

77.   The Commission recalls that Article 6 (Art. 6) does not grant the

accused an unlimited right to secure the appearance of witnesses in

court. It is normally for the national courts to decide whether it is

necessary or advisable to hear a witness (cf. No. 8231/78, Dec. 6.3.82,

D.R. 28, p. 5, and Eur. Court H.R., Bricmont judgment of 7 July 1989,

Series A No. 158, p. 31, para. 89).

78.   Since neither before the investigating judge nor before the Court

of Appeal counsel for the defence had been able directly to confront

the unidentified witnesses, and since the witnesses were not heard

before the Court of Appeal, the Commission must examine whether the

applicants were harmed in the exercise of their rights of defence by

reason of the Court of Appeal's refusal to order a further hearing of

the unidentified witnesses directly before that court.

79.   The Commission notes that the applicants were suspected of having

committed serious offences involving violence, including the attempted

murder of police officers. It further notes that the Court of Appeal,

before rejecting the request of the defence for a further hearing of

the unidentified witnesses, had already found that these witnesses had

justified reasons for wishing to remain unidentified.

80.   The Commission recalls that the European Court of Human Rights

has acknowledged that the growth in organised crime doubtless demands

the introduction of appropriate measures (cf. Eur. Court H.R.,

Kostovski judgment, loc. cit., p. 21, para. 44).

81.   Unlike the situations which the Court examined in the cases of

Kostovski, Windisch, Lüdi and Saïdi (loc. cit.), the unidentified

witnesses in the present case were heard before an investigating judge,

whose independence and impartiality are not disputed, who was aware of

the unidentified witnesses' identity, function and reasons for their

wish to remain unidentified. These reasons and the investigating

judge's findings as regards the credibility and reliability of these

witnesses were accepted by the Court of Appeal.

82.   The evidence given by the unidentified witnesses was debated in

adversarial proceedings in which the applicants were given ample

opportunity to challenge this evidence both when these witnesses made

their statements before the investigating judge and subsequently in the

proceedings before the Court of Appeal. The Commission further finds

no indication that in the proceedings on appeal the applicants were

prevented from submitting whatever they found relevant to their

respective cases.

83.   Also having regard to the fact that the request of the defence

for a further hearing of the unidentified witnesses was rejected for

lack of substantiation, the Commission cannot find that the Court of

Appeal's decision not to order a further hearing of the unidentified

witnesses was unreasonable or substantially harmed the applicants in

the exercise of their defence rights.

84.   Finally, the applicants' conviction did not solely rest on the

statements by these unidentified witnesses. Apart from forensic

evidence and the contents of a tapped telephone conversation between

two members of the applicants' family, the Court of Appeal also used

in evidence statements by identified witnesses heard before the Court

of Appeal. The Court of Appeal found that these other means of

independent evidence corroborated the statements of the unidentified

police officers.

85.   In these circumstances, the Commission is of the opinion that,

on balance, the proceedings against the applicants taken as a whole

cannot be regarded as unfair.

      CONCLUSION

86.   The Commission concludes, by twenty votes to eight, that in the

present cases there has been no violation of Article 6 paras. 1 and

3 (d) (Art. 6-1, 6-3-d) of the Convention.

Secretary to the Commission          President of the Commission

       (H.C. KRÜGER)                       (S. TRECHSEL)

                                                        (Or. English)

                 DISSENTING OPINION OF MR. E. BUSUTTIL

      I dispute the finding of the majority that there has been no

breach of Article 6 paras. 1 and 3(d) of the Convention in the present

cases, and agree with the conclusion reached in Mrs. Liddy's dissenting

opinion that the constraints imposed on the rights of the defence were

such that the applicants were deprived of a fair trial.

      I am also in broad agreement with the reasoning contained in the

dissenting opinion, but would myself highlight in particular the

publicity ingredient inherent in the concept of a fair trial.

      The public character of court proceedings is a cardinal principle

enshrined in para. 1 of Article 6.  It protects litigants against the

administration of justice in secret without public scrutiny and ensures

the maintenance of the confidence of the public at large in the

judicial system.  Publicity renders the administration of justice

visible and is therefore conducive to the achievement of a fair trial,

the guarantee of which is one of the fundamental principles of any

democratic society.  This characteristic is all the more important in

contemporary democratic societies where openness and public

accountability are constantly extolled and clandestinity is viewed with

disfavour.  To preserve its credibility, democracy must practice what

it preaches.

      It is small wonder, therefore, that the Court has underscored the

explicit character of court proceedings by stating that all evidence

must normally be produced in the presence of the accused at a public

hearing with a view to adversarial argument.  While the Convention does

not preclude the taking of anonymous evidence in the interests of

public policy in the investigation stage of criminal proceedings, to

consider such evidence at the trial stage as sufficient to found a

conviction, as in the present cases, involves restrictions on the

rights of the defence which are irreconcilable with the guarantees

embodied in Article 6.

      Incriminating evidence should be produced and taken before the

trial court in public so that that court itself (and not some examining

magistrate sitting in private) should form its own opinion of the

reliability of the evidence presented and not rely on second-hand

evidence.

      The majority of the Commission itself concedes in para. 71 of the

Report that the Courts in the Netherlands based their finding of guilt

to a large extent (even if not exclusively) on the statements of the

unidentified police officers.

      The tale which we see unfolding before our eyes in the present

cases consists of an ostensibly public hearing held by a trial court

which reached a finding of guilt, based to a large extent on evidence

taken in private by an investigating judge, out of sight and hearing

of the trial court itself.  The evidence taken before the investigating

judge was largely anonymous evidence taken out of sight of but within

the hearing of the defence and prosecution counsel.  The identity of

the unidentified police officers was unknown to the Regional Court,

unknown to the Court of Appeal, unknown to the Supreme Court, unknown

to defence and prosecution counsel, and unknown to the community at

large.  Their identity was only known to the investigating judge in the

privacy of his conscience.

      To my mind, this scenario smacks of stage management and, in the

final analysis, cannot be disassociated from the danger of

arbitrariness.  In addition, in these days of investigative journalism,

one could be led to speculate about the consequences, under Dutch law

and under the Convention, for some particularly enterprising journalist

who happened to discover the identity of the unidentified witnesses and

then proceeded to divulge it to the general public.

                                                        (or. English)

            DISSENTING OPINION OF MRS. J. LIDDY, JOINED BY

              MM. H. DANELIUS, C.L. ROZAKIS, L. LOUCAIDES

                M.A. NOWICKI, N. BRATZA AND A. PERENIC

      The applicants were convicted by the Court of Appeal on the basis

of a number of written statements.  It had heard direct evidence from

identified police witnesses concerning forensic evidence and the

investigation.  None of the identified police officers was close to the

events.  A bystander was unable to identify the applicants.

      The Court of Appeal had also examined a reconstruction of the

events of 26 January 1989.  It had not heard any direct evidence from

eleven unidentified police officers who had been involved in the events

of that day, but whose evidence was apparently crucial to the

convictions.  In particular, it related to the identification of some

of the applicants on the day in question.  The applicants challenged

the identification and prosecution case as a whole.

      The eleven police officers had been examined on oath earlier by

an investigating judge within the hearing but outside the sight of

defence and prosecution counsel.   These witnesses had refused to

answer questions that might lead to a disclosure of their identity

including questions relating to their friendship with colleagues.

      The issue is whether the use of the eleven unidentified

witnesses' evidence involved such limitations on the rights of the

defence that the applicants cannot be said to have had a fair trial.

      The Court has established certain principles under the Convention

in this connection:

-     In principle, all the evidence must be produced in the presence

of the accused at a public hearing with a view to adversarial argument.

However to use statements obtained at the pre-trial stage is not in

itself inconsistent with Article 6 paras. 1 and 3(d) provided the

rights of the defence have been respected (Kostovski Case, Judgment of

23 May 1989, Series A, No. 166).

-     A relevant factor is whether each of the trial courts was

precluded by the absence of unidentified witnesses from observing their

demeanour under questioning and thus forming their own impression of

their reliability.  The use of caution in evaluating such statements

can scarcely be regarded as a proper substitute for direct observations

(Kostovski, loc.cit.).

-   Police officers' evidence at the hearing as to the reliability of

the unidentified witnesses cannot be regarded as a proper substitute

for direct observation (Windisch case, Judgment of 27 September 1990,

Series A, Vol. 186).

-  Even where the unidentified witnesses are sworn police officers, an

accused must have during the proceedings an opportunity to question

them and cast doubt on their credibility (Lüdi  Case, Judgment of

15 June 1992, Series A, Vol. 238).

      In the present case, the investigating judge, but neither of the

trial courts, had an opportunity to observe the demeanour of the

unidentified witnesses.  This cannot be said to provide a "proper

substitute for direct observation" (cf. Windisch Case) in the

circumstances of the case.  In the first place, there was no pressing

reason for the Court of Appeal not to hear these witnesses itself.

They were available within the jurisdiction.  The Court appears merely

to have followed a practice of recent times, possibly based on

convenience (cf. para. 49 of the Report).  In the second place, counsel

for the defence was deprived of the possibility of seeing how the

witnesses reacted to questions put to them, and to draw on such

observations for the purpose of questioning and persuading the judge

to adopt a certain view of their credibility.  In the third place,

there is no evidence that the Court treated the unidentified statements

with caution.  On the contrary, it stated (without further elaboration)

that it would have respected the refusal of the unidentified witnesses

to answer certain questions in order not to disclose an investigation

method or in order to safeguard personal anonymity of investigation

officers.

      The facts that the evidence as to the reliability of the

unidentified witnesses came from an investigating judge rather than

police officers (as was the case in Windisch) and that the Court of

Appeal had insufficient indication of the questions counsel still

wished to put to the witnesses are not such as to justify the

fundamental flaw in the proceedings.  The Court of trial was unable to

assess for itself the credibility of those witnesses in circumstances

where it would have been open to it to do so in a way which took into

account any legitimate interest of the police authorities in preserving

the anonymity of undercover agents (cf. mutatis mutandis, Lüdi Case,

loc. cit.).

      Accordingly, there was a violation of para. 3(d) in conjunction

with para. (1) of Article 6.