EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 20524/92

                            Désiré Doorson

                                against

                            the Netherlands

                       REPORT OF THE COMMISSION

                     (adopted on 11 October 1994)

                           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 - 61). . . . . . . . . . . . . . . . . . . . . . . 3

      A.   The particular circumstances of the case

           (paras. 16 - 44) . . . . . . . . . . . . . . . . . . . . 3

      B.   Relevant domestic law

           (paras. 45 - 61) . . . . . . . . . . . . . . . . . . . . 7

III.  OPINION OF THE COMMISSION

      (paras. 62 - 84). . . . . . . . . . . . . . . . . . . . . . .11

      A.   Complaints declared admissible

           (para. 62) . . . . . . . . . . . . . . . . . . . . . . .11

      B.   Point at issue

           (para. 63) . . . . . . . . . . . . . . . . . . . . . . .11

      C.   As regards Article 6 of the Convention

           (paras. 64 - 83) . . . . . . . . . . . . . . . . . . . .11

           CONCLUSION

           (para. 84) . . . . . . . . . . . . . . . . . . . . . . .14

DISSENTING OPINION OF Mr. H. DANELIUS, JOINED BY

MM. A. WEITZEL, A.S. GÖZÜBÜYÜK, J.-C. SOYER,

C.L. ROZAKIS, Mrs. J. LIDDY, MM. L. LOUCAIDES, G.B. REFFI,

M.A. NOWICKI, N. BRATZA, J. MUCHA and E. KONSTANTINOV . . . . . . .15

APPENDIX I   : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . .17

APPENDIX II  : 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 1958 and resident in

Amsterdam.  He was represented before the Commission by Mr. G.P. Hamer,

a lawyer practising in Amsterdam.

3.    The application is 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 case concerns the alleged unfairness of criminal proceedings

against the applicant in respect of the administration of evidence

before the trial court.  The applicant invokes Article 6 paras. 1 and

3 of the Convention.

B.    The proceedings

5.    The application was introduced on 27 June 1992 and registered on

24 August 1992.

6.    On 8 February 1993 the Commission 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 its admissibility and merits.

7.    The Government's observations were submitted on 23 April 1993.

The applicant replied on 1 June 1993.

8.    On 29 November 1993 the Commission declared admissible the

applicant's complaints relating to the fairness of the proceedings and,

in particular, to the restrictions of the rights of defence during the

hearing of witnesses.  It declared inadmissible the remainder of the

application.

9.    The text of the Commission's decision on admissibility was sent

to the parties on 8 December 1993 and they were invited to submit

further observations.  The Government submitted observations on

28 January 1994 and the applicant's observations were submitted on

8 February 1994.

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.  C.A. NØRGAARD, President

           S. TRECHSEL

           A. WEITZEL

           F. ERMACORA

           E. BUSUTTIL

           G. JÖRUNDSSON

           A.S. GÖZÜBÜYÜK

           J.-C. SOYER

           H.G. SCHERMERS

           H. DANELIUS

      Mrs. G.H. THUNE

      MM.  F. MARTINEZ

           C.L. ROZAKIS

      Mrs. J. LIDDY

      MM.  L. LOUCAIDES

           J.-C. GEUS

           M.P. PELLONPÄÄ

           G.B. REFFI

           M.A. NOWICKI

           I. CABRAL BARRETO

           B. CONFORTI

           N. BRATZA

           I. BÉKÉS

           J. MUCHA

           E. KONSTANTINOV

           D. SVÁBY

           G. RESS

12.   The text of this Report was adopted on 11 October 1994 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.   A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

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 August 1987 the prosecution authorities decided to start an

action against the nuisance caused by drug trafficking in Amsterdam.

By showing photographs of known drug dealers to about 150 drug abusers,

the police collected statements of the latter. However, since after a

similar action in 1986 drug abusers who had made statements to the

police had been threatened, it appeared that most drug abusers only

were prepared to make anonymous statements about drug dealers.

17.   In September 1987 the police received information from a person

referred to by the police under the code name GH.021/87 that the

applicant was engaged in drug trafficking. After having found the

applicant's identification photograph, which had been taken in 1985,

in their records, the police included it in the collection of

photographs they showed to drug abusers.

18.   On 12 April 1988, after some drug abusers had declared to the

police that they recognised the applicant's photograph and that he had

sold drugs, he was arrested as suspected of drug offences. Six of these

drug abusers remained anonymous; they were referred to by the police

under the code names Y.05, Y.06, Y.13, Y.14, Y.15 and Y.16.  Moreover,

there were two persons whose identity was disclosed, namely R. and N.

19.   A preliminary judicial investigation (gerechtelijk vooronderzoek)

was opened, during which the applicant's lawyer submitted a request for

an examination of the witnesses referred to in the police report in the

applicant's case. The investigating judge (rechter-commissaris)

accordingly requested the police to bring these witnesses before him

on 30 May 1988 between 9.30 and 16.00 hours. The applicant's lawyer was

informed about this and was invited to attend the questioning of these

witnesses before the investigating judge.

20.   On 30 May 1988 the applicant lawyer arrived at 9.30 hours at the

investigating judge's chambers, but, after some time had elapsed and

none of the witnesses had appeared, he believed that no questioning

would take place and left for another appointment. After the lawyer had

left, the witnesses turned up and were heard by the investigating judge

in the absence of the lawyer, witness Y.15 at about 11.15 hours and

witness Y.16 at about 15.00 hours.

21.   On 19 July 1988 the applicant appeared before the Regional Court

(Arrondissementsrechtbank) of Amsterdam on charges of drug trafficking.

Following the prosecutor's request, the court decided to adjourn its

examination until 25 August 1988.

22.   On 25 August 1988 the Regional Court resumed the proceedings. As

the Regional Court was differently composed, it recommenced its

examination of the case. The court rejected a request by the defence

to refer the case back to the investigating judge for an examination

of the six anonymous witnesses and, upon the defence's request thereto,

ordered that the witnesses R. and N. be brought before the court. The

Regional Court further rejected the applicant's request for his release

from his detention on remand and adjourned its further examination

until 4 October 1988.

23.   On 4 October 1988 the Regional Court resumed the proceedings. In

view of the fact that all three judges of the Regional Court had been

replaced, the court again recommenced its examination. The court

rejected the defence's new request to have the six anonymous witnesses

examined. The witness N. had appeared, R. had not appeared. N. was

questioned before the court and both parties to the proceedings were

provided with an opportunity to put questions to him. N. changed his

previous statement and now denied that the applicant had sold drugs to

him. The court adjourned its further examination until 29 November 1988

ordering the appearance of the witnesses R. and N., and of L., an

expert in the field of problems related to drug trafficking and abuse.

24.   On 29 November 1988 the Regional Court resumed its examination.

The expert L. had appeared and was questioned before the court. The

witnesses R. and N. had not appeared. The defence withdrew its request

to have R. and N. examined before the court in order to avoid a further

adjournment of the proceedings.

25.   On 13 December 1988 the Regional Court convicted the applicant

of drug trafficking and sentenced him to 15 months' imprisonment.

26.   The applicant appealed to the Court of Appeal (Gerechtshof) of

Amsterdam which held a number of hearings in the case.

27.   The applicant requested that the six anonymous witnesses be heard

by the Court of Appeal. On 30 November 1989 the Court of Appeal decided

to verify the necessity of upholding the anonymity of the witnesses and

to this end decided to refer the case back to the investigating judge.

The Court of Appeal also requested the investigating judge to examine

the anonymous witnesses whilst giving the defence the opportunity to

put questions to these witnesses. The Court of Appeal further ordered

the appearance of the witnesses R. and N. and the expert L. before the

court.

28.   On 14 February 1990 the investigating judge, who had previously,

on 25 August 1988, as a member of the Regional Court participated in

a decision to prolong the applicant's detention on remand, heard the

witnesses Y.15 and Y.16 in the presence of the applicant's lawyer, who

was provided with the opportunity to put questions to them but who was

not informed of their identity. Neither Y.15 nor Y.16 refused to answer

any of the questions put by the applicant's lawyer. They both declared

that they had bought drugs from the applicant and that they had seen

him selling drugs to others.

29.   On that occasion witness Y.16, whose identity was known to the

investigating judge, expressed the wish to remain anonymous and not to

appear in court, since in the past he had been injured by another drug

dealer after he had "talked". He feared similar action by the

applicant. Witness Y.15, whose identity was known to the investigating

judge, also wished to remain anonymous and not to appear in court,

since in the past he had been threatened by drug dealers if he would

talk. He further stated that the applicant was rather aggressive.

30.   By letter of 17 April 1990 the applicant's lawyer requested the

prosecution to summon the witnesses Y.05, Y.06, Y.13, Y.14, Y. 15 and

Y.16 before the Court of Appeal's hearing of 10 May 1990. On 2 May 1990

the public prosecutor (Procureur-Generaal) rejected this request on the

ground that, in the presence of the applicant's lawyer, Y.15 and Y.16

had been heard for a second time by the investigating judge who was

aware of their identity and had found that they had valid reasons for

their wish to remain anonymous. He further stated that witness Y.06 had

been expelled from the Netherlands and that his place of residence was

unknown. Witness Y.13's place of residence was unknown, and as regards

the witnesses Y.05 and Y.14, it was very doubtful, in view of the

unsuccessful attempts to bring these witnesses before the investigating

judge, whether, if summoned, they would appear before the Court of

Appeal. It was also necessary to take into account the desirability of

bringing the proceedings to an end as early as possible.

31.   On 10 May 1990 the Court of Appeal recommenced its examination

in view of its changed composition. In the course of the hearing on

that date it gave further consideration to the wish of the witnesses

Y.15 and Y.16 to remain anonymous and concluded that it had been argued

on sufficiently convincing grounds that these two witnesses had good

reasons to feel seriously threatened, and accordingly did not call

these witnesses. As regards the witnesses Y.05, Y.06, Y.13 and Y.14 the

court accepted the findings of the investigating judge that it would

be useless to call these witnesses before the court and rejected the

defence's request in this respect. The Court of Appeal further ordered

that the witnesses R. and N. be brought before it by force.

32.   On 28 August 1990 the witness N. was heard by the Court of Appeal

in the applicant's presence and the applicant's lawyer was given the

opportunity to question this witness.  N. declared that he had lied to

the police and withdrew his previous statement in which he had accused

the applicant of drug traffic. The Court of Appeal also heard the

expert L.

33.   The witness R. repeatedly failed to appear before the Court of

Appeal. Following the court's order of 10 May 1990 that he be brought

by force, he was present at a hearing on 28 August 1990, but

disappeared from the court before he had been heard and could not be

found again. The court subsequently ordered that he be brought by force

before the court at its next hearing on 22 November 1990. On

28 August 1990 the Court of Appeal also decided to refer the case back

to the investigating judge, requesting her to draft a procès-verbal on

her findings about the reliability of the witnesses Y.15 and Y.16.

34.   On 10 May 1990 the applicant also requested the hearing of K.,

a researcher who had performed a great deal of research about drug

abusers in Amsterdam.  Although K. was present at the hearing on

28 August 1990, the Court of Appeal decided not to hear him as an

expert on the ground that his statement could not be expected to

contribute to the elucidation of the facts of the case.

35.   In the procès-verbal of 19 November 1990 containing her findings,

the investigating judge stated that the two anonymous witnesses were

reliable and that their wish to remain anonymous was well-founded.

36.   At the Court of Appeal's hearing on 22 November 1990, the witness

R. did not appear and could not be found by the police. The court

subsequently decided that a new order for R.'s appearance would be

useless. During the same hearing the public prosecutor requested that

a police officer, I., who had been involved in the investigation and

who was present on that occasion, be heard.  Despite the protests of

the defence, the Court of Appeal agreed to the request, and I. was

heard concerning the way in which the investigation had been conducted.

He confirmed that it had occurred in the past that convicted drug

dealers, after having served their sentence, had threatened and

assaulted drug abusers who had made incriminating statements against

them.

37.   On 6 December 1990 the Court of Appeal quashed the Regional

Court's judgment of 13 December 1988 in view of a different approach

to the evidence, found the applicant guilty of drug offences and

sentenced him to 15 months' imprisonment.

38.   The Court of Appeal rejected the applicant's request that the

prosecution be declared inadmissible, finding no element in the

investigation of the applicant's case which would justify such a

decision.

39.   As regards the applicant's complaint that the majority of the

witnesses had not been heard in the presence of the applicant or his

lawyer, the court stated that it had based its conviction on statements

by the witnesses N., R., Y.15 and Y.16, the latter two having been

questioned by the investigating judge in the presence of the

applicant's lawyer. The Court of Appeal added that it had used their

statements with the necessary caution and reticence. It held that these

statements could be used in evidence, inter alia, in view of their

consistency and having regard to the statement of the police officer

I., since the reliability of the witnesses and the well-foundedness of

their wish to remain anonymous had been sufficiently verified by the

investigating judge.

40.   The Court of Appeal rejected the applicant's complaint that the

investigating judge, who had examined the witnesses Y.15 and Y.16, was

biased as, on 25 August 1988, as a member of the Regional Court, she

had participated in a decision to prolong the applicant's detention on

remand. The Court of Appeal noted that the Regional Court's hearing on

25 August 1988 had been brief; the Regional Court had only considered

the applicant's request to have the six anonymous witnesses examined

and his request for release. During that hearing the Regional Court had

not examined the substance of the applicant's case. The Court of Appeal

further found that it had not appeared nor been argued that the

investigating judge, before acting as an investigating judge, had had

any contacts with those witnesses. Finally, noting the functional

differences between an investigating judge and a member of a trial

court, the Court of Appeal considered that no particular facts or

circumstances had been referred to or had been disclosed warranting the

conclusion that she was not able to form a free and unprejudiced

opinion as to the reliability of the witnesses she had examined, or

that she was biased in her examination of those witnesses.

41.   The applicant's subsequent appeal to the Supreme Court (Hoge

Raad) was rejected on 24 March 1992.

42.   Insofar as the applicant complained that he had not been allowed

to hear witnesses and experts on the same conditions as the public

prosecutor, as the Court of Appeal had, on the one hand, refused to

hear the expert K. in order to obtain information about the anonymous

witnesses who were all drug abusers and, on the other hand, agreed to

hear I. at the public prosecutor's request, the Supreme Court accepted

the Court of Appeal's reasoning for its refusal to hear K., also taking

into account that the applicant had not indicated in his request to

what extent a statement of K. could be relevant for the determination

of the charges against him.

43.   As regards the applicant's complaint under Article 6 paras. 1 and

3 (d) of the Convention that his conviction was essentially based on

statements by persons whom he had not been able to hear in person, in

particular R. and the anonymous witnesses Y.15 and Y.16, the Supreme

Court held in respect of the witnesses Y.15 and Y.16 that Article 6 was

not violated since these witnesses had been examined by the applicant's

lawyer. In respect of the witness R. the Supreme Court accepted the

Court of Appeal's decision of 22 November 1990 that a new order for

R.'s appearance would be useless. Given the Court of Appeal's attempts

to examine R. and the fact that R.'s statement was sufficiently

corroborated by other evidence, the Supreme Court found that the Court

of Appeal could legally admit and use R.'s statement in evidence.

44.   In respect of the applicant's complaint that the investigating

judge, who had decided on the applicant's detention on remand, was not

impartial when hearing the witnesses Y.15 and Y.16, the Supreme Court

accepted the Court of Appeal's finding that there were no reasons for

the assumption that the investigating judge lacked the required

impartiality and that the applicant's fear that she was biased was

unfounded. The Supreme Court considered the situation where a judge of

a first instance trial court - after having been involved in decisions

rejecting requests to suspend a court hearing, requests to refer a case

back to an investigating judge in order to examine anonymous witnesses

or requests to suspend or end an accused's detention on remand - in the

capacity of investigating judge examines witnesses upon the Court of

Appeal's request. The Supreme Court found that this does not, in

general, mean that in the proceedings on appeal the requirement of a

hearing by an impartial tribunal within the meaning of

Article 6 para. 1 of the Convention has not been complied with. It

found no reasons in the applicant's case warranting a different

conclusion.

B.    Relevant domestic law

45.   Section 168 of the Dutch Code of Criminal Procedure (Wetboek van

Strafvordering, hereafter: "CCP") provides that each District Court has

one or more investigating judges to whom criminal cases are entrusted.

They are nominated from amongst the members of the District Court.

46.   It is open to the public prosecutor, under Section 181 CCP, to

request what is called - in order to distinguish it from the subsequent

investigation at the trial - a preliminary judicial investigation

(gerechtelijk vooronderzoek).

47.   It is the task of the investigating judge to conduct such an

investigation by gathering evidence in preparation of the examination

by the case before the trial court. The investigating judge must act

impartially, by also collecting evidence which might exculpate the

suspect.

48.   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. The law does not make the

presence of counsel for the defence compulsory during the investigation

by the police.

49.   Apart from the collection of evidence, the investigating judge

also decides on requests of the prosecuting authorities to detain a

suspect on remand (inbewaringstelling) for six days (Section 63 CCP).

In this respect an arrested and detained suspect must be brought before

the investigating judge within 72 hours following his arrest. The

investigating judge can prolong this detention for a another period of

up to six days (Section 64 CCP). The competence to order any further

prolongation of a suspect's detention on remand lies with the trial

court (Sections 65 and 75 CCP).

50.   The preliminary judicial investigation provides a basis for a

decision by the prosecuting authorities with regard to charges being

brought against a suspect, and also serves to clarify matters which

cannot properly be investigated at the trial.  The investigating judge

will close the preliminary investigation when it is completed. Both the

suspect and the prosecuting authorities will be informed about the

closure (Section 237 CCP).

51.   If the public prosecutor finds that the results of the

preliminary judicial investigation justify prosecution, he will notify

the suspect and refer the case to the court. The investigation at the

trial will then follow.

52.   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)

53.   Pursuant to Section 516 CCP a suspect may challenge (wraking) a

judge when he considers there are facts or circumstances as a result

of which the judicial impartiality could be open to doubt. If it

concerns a single judge, such as an investigating judge, the suspect

must submit such a request in writing to the judge concerned, who will

then decide the request himself (Section 518 para. 1 CCP). Against a

negative decision an appeal lies with the court of which the challenged

judge forms a part (Section 518 para. 2 CCP).

54.   At the time in question, the relevant law and practise as regards

the summoning of witnesses to a court hearing was as follows: a witness

whose summoning has been asked for by the suspect, and who has not been

summoned by the public prosecutor, is to be summoned by the court,

unless the court - being of the opinion that summoning is superfluous

or fruitless - finds that the suspect could not, in all fairness, be

harmed in his defence if the witness is not summoned (Section 280

para. 4 CCP).

55.   As regards the 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). The latter

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.

56.   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."

57.   Evidence in the fifth category is defined in Section 344 CCP,

which, as far as is 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.   (...)."

58.   In actual practice, the course of a procedure in a criminal case

differs from that suggested by the CCP. This is to a considerable

extent due to a leading judgment of the Supreme Court of

20 December 1926 (Nederlandse Jurisprudentie 1927, no. 85). According

to this judgment it is permissible to use as evidence declarations made

by the accused or by a witness to a police officer, as recorded in the

latter's official report.

59.   These rulings permit the use, as "legal means of evidence" within

the meaning of Sections 338 and 339 CCP, of depositions 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. In the great majority of cases, witnesses

are not heard at the trial but either only by the police or also by the

investigating judge.

60.   Although the investigating judge must ask the witness for his

particulars (Section 190 CCP) and the witness must answer this question

(Section 221 CCP), and this answer is recorded in a procès-verbal, the

Supreme Court has accepted procès-verbaux containing statements by

anonymous witnesses as legal means of evidence (cf., Hoge Raad,

judgment of 25 september 1984, NJ 1985, no. 426; and Hoge Raad,

judgment of 12 November 1985, NJ 1986, no. 409).

61.   Following the Court's judgment in the Kostovski case (Eur. Court

H.R., judgment of 20 November 1989, Series A no. 166), the Supreme

Court defined the conditions under which statements of an anonymous

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

anonymous; 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).

III.  OPINION OF THE COMMISSION

A.    Complaints declared admissible

62.   The Commission has declared admissible the applicant's complaints

concerning the unfairness of the hearing in his case and notably about

the impossibility for him to question the witnesses against him.

B.    Point at issue

63.   The issue to be determined is 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 (Art. 6) of the Convention

64.   Article 6 (Art. 6) of the Convention, insofar as relevant, reads:

      "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;

      (...)."

65.   The applicant submits that he did not have a fair trial as he was

convicted essentially on the basis of the statements of three persons

who were never heard in his presence and whom he never had the

possibility to interrogate. Two of these persons were anonymous

(Y.15 and Y.16) and one disappeared from the trial court before he was

heard (R.). He argues that a confrontation with these witnesses was

essential in order to ascertain whether they recognised him, since they

made their statements after being shown a photograph of him taken in

1985. The applicant further argues that the witnesses Y.15 and Y.16 had

been granted anonymity as they had been threatened in the past in

similar circumstances and not in view of any possible threats by or on

behalf of the applicant.

66.   The applicant further submits that the Court of Appeal considered

the two anonymous witnesses to be reliable on the basis of the

declaration of the investigating judge who, at a previous stage of the

proceedings, had participated in a decision in which the applicant's

detention on remand was prolonged because of the statements of the

anonymous witnesses, and who had not given any explanation as to why

these witnesses should be considered reliable; in fact, in view of

their way of life as drug addicts, they could not be regarded as

reliable witnesses. He finally complains that the Court of Appeal

rejected his request to hear the expert K., whereas I. was heard

following a request by the prosecution.

Supreme Court for the use of anonymous statements following the

Kostovski judgment (see para. 61) have been complied with in the

present case. The particulars of Y.15 and Y.16 were known to the

investigating judge, as appears from the procès-verbal of 14 February

1990. Moreover, it appears from the procès-verbal of 19 November 1990

that the investigating judge had considered these witnesses to have

well-founded reasons for wishing to remain anonymous and not to appear

in court.

68.   The Government further point out that the witnesses Y.15 and Y.16

were questioned on two different occasions by the investigating judge.

On the first occasion, on 30 May 1988, the applicant's lawyer left of

his own motion before these witnesses were heard, and the State cannot

be held responsible for his absence. On the second occasion, on

14 February 1990, the applicant's lawyer was present and had the

opportunity to put questions to the two witnesses.

69.   In the Government's view it was not necessary for the applicant

to be confronted with the witnesses since all of them, including those

whose statements had not been used as evidence, had positively

identified the applicant from the photograph independently of each

other. The Government also agree with the Court of Appeal in finding

that the applicant's defence was not prejudiced by the fact that he had

been unable to examine R. Consequently, in the Government's view he had

a fair hearing.

70.   The Commission considers that the applicant's complaints are to

be examined in relation to the general right to a fair hearing

protected by Article 6 para. 1 (Art. 6-1) of the Convention and to the

specific right regarding the taking of evidence dealt with in

Article 6 para. 6(d) (Art. 6-6-d) of the Convention. Since the rights

set out in para. 3 of Article 6 (Art. 6-3) are specific aspects of the

right to a fair hearing ensured by para. 1 of this Article (Art. 6-1)

(cf. Eur. Court H.R., T. v. Italy judgment of 12 October 1992, Series A

no. 245-C, p. 41, para. 25), the Commission will consider the present

complaints under the two provisions taken together.

71.   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).

72.   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).

73.   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 paras. 3(d) and 1 of Article 6 (Art. 6-1, 6-3-d),

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. Saïdi judgment, loc. cit., p. 56, para. 43).

74.   The Commission notes that in the present case the Dutch courts

were confronted with the question whether the identification by various

persons of the applicant as a drug dealer was sufficiently reliable to

result in the applicant's criminal conviction. The court which in the

last resort examined the questions of evidence was the Court of Appeal.

It appears from that court's judgment that it based its finding of

guilt essentially on the statements of four witnesses, i.e. N. and R.

as well as the two anonymous witnesses Y.15 and Y.16.

75.   The Commission must therefore examine whether the four witnesses

N. and R., Y.15 and Y.16 gave their evidence under conditions which

ensured the applicant's rights of defence and his right to a fair

trial.

incriminating statement about the applicant to the police but that he

changed this statement when he was heard before the Regional Court and

the Court of Appeal. He then denied that the applicant had sold drugs

to him and stated that he had lied to the police.

77.   When N. was heard before the courts, both parties had the

opportunity of putting questions to him, and the courts were able to

form a view about the veracity of his declarations. It could not affect

the fairness of the proceedings if, in such a situation, the courts

compared N.'s statement before the police with those which he made

before the courts and formed an opinion on the value of these various

statements as evidence in favour of or against the applicant.

78.   The Commission further notes that both the Regional Court and the

Court of Appeal made attempts to hear R. as a witness but that R.

failed to appear before the Regional Court and, when he was first

summoned, also before the Court of Appeal. However, he was subsequently

brought by force to the Court of Appeal but disappeared from the court

building before he had been heard. After this it was not possible to

trace him. In these circumstances, when it proved impossible to hear

R. directly before the courts, it cannot be regarded as unfair if the

courts took into account the statement R. had made to the police.

79.   As regards the witnesses Y.15 and Y.16, it is true that their

identity was not disclosed to the defence. However, the investigating

judge knew who they were (cf. Eur. Court H.R., Kostovski judgment of

20 November 1989, Series A no. 166, p. 20, para. 43), and the

Commission finds no reason to doubt that their wish to remain anonymous

was well-founded in view of the risks to which they might otherwise

have been exposed.

80.   Moreover, Y.15 and Y.16 were heard on 14 February 1990 by the

investigating judge in the presence of the applicant's lawyer who then

had the opportunity of putting questions to them.

81.   It is true that in the present case, which concerned a problem

of identification, it would have been desirable that the persons who

had identified the applicant from a photograph would subsequently have

been confronted with him so as to make sure that they also recognised

him in person. However, there were, in the Commission's opinion, valid

reasons why this was not done. In such circumstances, the principle of

a fair trial required that the evidence be evaluated with special

caution. Since, in the present case, several persons had independently

identified the applicant from a photograph as being a drug dealer and

the value of this and other evidence was extensively discussed in

adversarial proceedings, the Commission cannot find that, when viewed

as a whole, the applicant's trial was in this respect unfair.

82.   The applicant has further alleged that the proceedings were

unfair because the courts took into account a declaration about the

anonymous witnesses made by the investigating judge who had previously

detained the applicant on remand on the basis of statements by the same

witnesses and also bacause the Court of Appeal refused to hear a

witness proposed by the applicant, while at the same time agreeing to

hear a witness demanded by the prosecution.

83.   The Commission considers that the fact that the investigating

judge had taken a decision regarding the applicant's detention on

remand did not prevent him from expressing an opinion about the

evidence in the case. Moreover, it was within the discretion of the

courts to decide whether or not the hearing of the proposed witnesses

could contribute to a good administration of justice in the case.

Consequently, the Commission finds no appearance of unfairness in these

regards.

Conclusion

84.   The Commission concludes, by fifteen votes to twelve, that 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)                       (C.A. NØRGAARD)

                                                        (Or. English)

            DISSENTING OPINION OF Mr. H. DANELIUS JOINED BY

      MM. A. WEITZEL, A.S. GÖZÜBÜYÜK, J.-C. SOYER, C.L. ROZAKIS,

      Mrs. J. LIDDY, MM. L. LOUCAIDES, G.B. REFFI, M.A. NOWICKI,

               N. BRATZA, J. MUCHA and E. KONSTANTINOV.

1.    In my opinion, there has been in the present case a violation of

the applicant's rights under Article 6 paras. 1 and 3(d) of the

Convention for the following reasons.

2.    As pointed out by the Commission's majority, the applicant's

conviction and sentence for drug offences was mainly based on the

statements made by four witnesses, namely N. and R. as well as the

two anonymous witnesses Y.15 and Y.16.

3.    The question which arises is therefore whether these four

witnesses gave their evidence under conditions which ensured the

applicant's rights of defence and his right to a fair trial.

4.    As regards N., I recall that he had, when heard by the police,

made an incriminating statement about the applicant but that he

withdrew this statement when he was heard before the Regional Court and

the Court of Appeal. He then denied that the applicant had sold drugs

to him and stated that he had lied to the police.

5.    Although, in such circumstances, the mere fact that the courts

took into account and evaluated the statement N. had made to the police

did not violate the applicant's Convention rights, it is clear that the

declarations N. made before the courts must have reduced the evidential

value of his previous statement. In these circumstances, it was even

more important that other evidence was taken in conditions which were

not at variance with Article 6.

6.    The witness R., who had also incriminated the applicant when

heard by the police, did not appear before the Regional Court. He also

failed to appear before the Court of Appeal but was eventually brought

there by force on 28 August 1990. However, before he had been heard by

the court, he disappeared from the court premises and could not be

found again.

7.    Since R. disappeared from the Court of Appeal after he had been

brought there by force, the authorities must be considered to some

extent responsible for the fact that he was not heard by that court.

In any case, this event made it necessary for the court to be

particularly cautious in drawing any conclusions from R.'s statement

to the police, which had been made in the absence of the applicant and

his lawyer who had also not on any other occasion been given an

opportunity of putting questions to R.

8.    As regards Y.15 and Y.16, the Commission recalls that they were

anonymous witnesses whose identity was known to the investigating judge

but not to the applicant or his lawyer. Consequently, it was not

possible for the applicant to invoke any specific facts regarding the

character of these witnesses or their general reliability. In the

Kostovski case (Eur. Court H.R., Kostovski judgment of 20 November

1989, Series A 166, p. 20, para. 42), the Court stated in regard to a

similar issue:

      "If the defence is unaware of the identity of the person it seeks

      to question, it may be deprived of the very particulars enabling

      it to demonstrate that he or she is prejudiced, hostile or

      unreliable. Testimony or other declarations inculpating an

      accused may well be designedly untruthful or simply erroneous and

      the defence will scarcely be able to bring this to light if it

      lacks the information permitting it to test the author's

      reliability or cast doubt on his credibility. The dangers

      inherent in such a situation are obvious."

9.    It should further be observed that Y.15 and Y.16 were not heard

before either the Regional Court or the Court of Appeal and that those

courts therefore had no opportunity of forming a direct impression of

those two witnesses. Moreover, there was no confrontation of Y.15 and

Y.16 with the applicant. On the other hand, they were heard, on

14 February 1990, by the investigating judge in the presence of the

applicant's lawyer who had the opportunity of putting questions to

them, although he was unaware of their identity.

10.   As the crucial question was whether the witnesses were really

able to identify the applicant as a drug dealer, the fairness of the

procedure might well be considered to have been affected by the fact

that the identification was exclusively made on the basis of a

photograph and that the witnesses R., Y.15 and Y.16 were on no occasion

confronted with the applicant and asked whether they really recognised

him in person. Moreover, N., who gave evidence at the trial, withdrew

his incriminating statement.

11.   On the basis of all these various elements, I cannot but find

that the applicant's defence was restricted to such an extent as to

violate his rights under Article 6 paras. 1 and 3(d) of the Convention.

12.   Having regard to this finding, I do not find it necessary to

determine whether the other aspects of the trial invoked by the

applicant (see para. 66 in the Report) also contributed to making the

proceedings unfair.

                              APPENDIX I

                      HISTORY OF THE PROCEEDINGS

Date                        Item

_________________________________________________________________

27 June 1992                Introduction of application

24 August 1992              Registration of application

Examination of admissibility

8 February 1993             Commission's decision to communicate the

                            case to the respondent Government and to

                            invite the parties to submit observations

                            on admissibility and merits

23 April 1993               Government's observations

1 June 1993                 Applicant's observations in reply

29 November 1993            Commission's decision to declare the

                            application in part admissible and in part

                            inadmissible

Examination of the merits

8 December 1993             Decision on admissibility transmitted to

                            parties. Invitation to parties to submit

                            further observations on the merits

28 January 1994             Government's observations

8 February 1994             Applicant's observations

9 April 1994                Commission's consideration of state of

                            proceedings

3 September 1994            Commission's consideration of state of

                            proceedings

11 October 1994             Commission's deliberations on the merits,

                            final vote, and adoption of the Report