Lexploria

Application No. 13143/87

T.

against

the NETHERLANDS

REPORT OF THE COMMISSION

(adopted on 12 February 1990)

TABLE OF CONTENTS

page

INTRODUCTION (paras. 1-5) 1

PART I. STATEMENT OF THE FACTS (paras. 6-11) 3

PART II. SOLUTION REACHED (paras. 12-18) 4

INTRODUCTION

1. This Report relates to Application No. 13143/87 introduced by

T. against the Netherlands on 10 August 1987 under Article 25 of the

Convention for the Protection of Human Rights and Fundamental

Freedoms. The application was registered on 13 August 1987.

2. The applicant was represented before the Commission by Mr.

Vincent Kraal, a lawyer practising in Amsterdam. The Government of

the Netherlands were represented by their Agent, Ms. Dorothea S. van

Heukelom, Ministry of Foreign Affairs, The Hague.

3. On 9 November 1989 the European Commission of Human Rights

declared the application admissible*. The Commission then proceeded

to carry out its task under Article 28 para. 1 of the Convention**

which provides as follows:

"In the event of the Commission accepting a petition

referred to it:

(a) it shall, with a view to ascertaining the facts,

undertake together with the representatives of the parties

an examination of the petition and, if need be, an

investigation, for the effective conduct of which the

States concerned shall furnish all necessary facilities,

after an exchange of views with the Commission;

(b) it shall at the same time place itself at the

disposal of the parties concerned with a view to securing a

friendly settlement of the matter on the basis of respect

for Human Rights as defined in this Convention."

4. The Commission found that the parties had reached a friendly

settlement of the case and on 12 February 1990 it adopted this Report

which, in accordance with Article 28 para. 2 of the Convention**, is

confined to a brief statement of the facts and of the solution

reached.

_______________

* This decision is public and can be obtained from the

Commission's Secretary.

** As amended with effect from 1 January 1990.

5. The following members of the Commission were present when the

Report was adopted:

MM. C. A. NØRGAARD, President

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

PART I

STATEMENT OF THE FACTS

6. The applicant is a Dutch citizen, born in 1946. During the

procedure before the Commission he was detained in a prison in The

Hague.

7. In the course of a criminal investigation regarding narcotics

offences, a Dutch police officer, in February-March 1984, heard a

number of witnesses in Malaysia. Some of the declarations made by

these persons implicated the applicant, who was therefore arrested on

30 August 1984.

8. In the subsequent criminal proceedings before the Regional

Court (Arrondissementsrechtbank) of Amsterdam the applicant requested,

inter alia, that the case be referred back to the investigating judge

in order to allow this judge to hear under oath the persons who had

testified before the police officer and in order to ensure the rights

of the defence during such further investigation.

9. On 1 February 1985 the Regional Court convicted the applicant

and sentenced him to ten years' imprisonment. The applicant appealed

to the Court of Appeal (Gerechtshof) of Amsterdam. By judgment of 16

July 1985, the Court of Appeal confirmed the conviction and sentence

on the basis of the evidence given before the police officer in

Malaysia and on the applicant's admission at the trial that he bore

the nickname "Tiger". The Court of Appeal held, inter alia, that the

witness testimony concorded in substance with what the witnesses had

testified before the investigating judge of The Hague in another case

and that, therefore, the interests of the defence did not make a

further investigation by an investigating judge necessary.

10. The applicant appealed in cassation to the Supreme Court (Hoge

Raad), which, in its judgment of 17 February 1987, rejected the appeal

as unfounded.

11. Before the Commission the applicant complained that he was

refused the right to question the witnesses against him in the course

of a supplementary judicial investigation. He alleged that his

conviction was completely based on the testimony of witnesses whom he

could not examine, and that thereby the courts violated Article 6

paras. 1 and 3 (d) of the Convention.

PART II

SOLUTION REACHED

12. Following its decision on the admissibility of the application,

the Commission placed itself at the disposal of the parties with a

view to securing a friendly settlement in accordance with Article 28

para. 1 (b) of the Convention and invited the parties to submit any

proposals they wished to make.

13. In accordance with its usual practice, the Commission

instructed its Secretary to contact the parties for this purpose.

14. By letter of 22 November 1989 the applicant submitted a

proposal to the effect that, if the Government would suspend the

further execution of his prison sentence and remit the remainder, he

would not claim any monetary damages and/or costs resulting from this

case, and would not seek any other legal remedies against the

Netherlands regarding his complaint.

15. By letter of 18 December 1989 the respondent Government

rejected the proposal. However, by letter of 23 January 1990, the

Government made a counter proposal to the effect that the applicant

would be released, provided that he renounced all claims to costs and

damages in respect of this application and refrained from any other

legal steps against the Netherlands in respect of his complaint. The

Government further indicated in their letter that in the Netherlands

the execution of the sentence before it had been served could only be

terminated by an act of pardon. The Government referred to a request

for pardon which had been made by the applicant's lawyer and which had

been referred, for an advisory opinion, to the Court of Appeal of

Amsterdam. The Government finally noted that, pending a decision on

the request for pardon, the execution of the sentence could be

suspended by the Minister of Justice.

16. By letter of 5 February 1990 the applicant accepted the

respondent Government's proposal.

17. The Commission was informed by both Parties by telephone that

the applicant was released on 5 February 1990.

18. At its session on 12 February 1990 the Commission noted that

the parties had reached an agreement regarding the terms of a

settlement. The Commission further found, having regard to Article 28

para. 1 (b) of the Convention, that a friendly settlement had been

secured on the basis of respect for human rights as defined in the

Convention.

For these reasons, the Commission adopted this Report.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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T. v. THE NETHERLANDS

T. v. THE NETHERLANDS

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