Lexploria

Application No. 11454/85

Slobodan KOSTOVSKI

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 12 May 1988)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 12) ...................................... 1

A. The applicant

(paras. 2 - 4) ............................... 1

B. The proceedings

(paras. 5 - 8) ............................... 1

C. The present Report

(paras. 9 - 12) .............................. 2

II. ESTABLISHMENT OF THE FACTS

(paras. 13 - 33) ..................................... 3

A. Particular circumstances of the case

(paras. 13 - 25) ............................. 3

B. Relevant domestic law and practice

(paras. 25 - 33) ............................. 7

III. SUBMISSIONS OF THE PARTIES

(paras. 34 - 40) ..................................... 10

A. The applicant

(paras. 34 - 37) .............................. 10

B. The Government

(paras. 38 - 40) .............................. 11

IV. OPINION OF THE COMMISSION

(paras. 41 - 52) ...................................... 12

A. Points at issue

(paras. 41 - 51) .............................. 12

B. Conclusion

(para. 52) .................................... 14

Concurring opinion ............................ 15

APPENDIX I : HISTORY OF THE PROCEEDINGS ................. 16

APPENDIX II : DECISION ON THE ADMISSIBILITY .............. 17

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 applicant

2. The applicant, Mr. Slobodan Kostovski, is a Yugoslav citizen,

born in 1953. He is detained in prison at The Hague in the

Netherlands. In the proceedings before the Commission he is

represented by Ms. T. Spronken, a lawyer practising in Maastricht.

3. The Government are represented by their Agent,

Ms. D.S. van Heukelom, Legal Advisor at the Ministry of Foreign

Affairs, The Hague.

4. The case relates to the applicant's conviction of armed

bank-robbery which was based exclusively on reports of statements

given by two anonymous witnesses who were only heard in the pretrial

investigating proceedings. The applicant complains that the criminal

proceedings against him violated Article 6 paras. 1 and 3 (d) of the

Convention because the witnesses were not heard in his and his defence

counsel's presence at the trial and because the public prosecution

knew, according to his submission, the identity of the witnesses and

other circumstances relating to them, whereas the defence had no

information at all and was therefore unable to challenge the

statements made by the anonymous witnesses.

B. The proceedings

5. The application was introduced on 18 March 1985 and

registered on 20 March 1985.

On 2 December 1985, the Commission decided to invite the

respondent Government, pursuant to Rule 42 para 2 (b) of its Rules of

Procedure, to submit written observations on admissibility and merits

before 14 March 1986. The Government's observations were submitted on

25 February 1986.

On 14 March 1986 the Commission decided to grant the applicant

legal aid under the Addendum to the Commission's Rules of Procedure.

The applicant was invited to submit observations in reply

before 12 May 1986. At the request of the applicant, the President

extended the time-limit initially until 9 June 1986, and subsequently

to 7 July 1986. The applicant's observations were submitted on

4 July 1986.

6. On 3 December 1986 the Commission declared the application

admissible, and decided in accordance with Rule 45 para. 3 of its

Rules of Procedure to invite the parties to appear before it at a

hearing on the merits of the case. The parties were also invited to

submit any additional observations on the merits of the application

which they wished to make.

The Government submitted further observations on 29 January 1987

and the applicant on 13 February 1987. These observations were

submitted to the other party for information.

7. At the hearing, which was held on 9 October 1987, the

applicant was represented by Ms. T. Spronken, who was assisted by

Mr. G.P.M.F. Mols, Mr. P.J. Baauw, lecturers on criminal law, and

Ms. van den Boom, university assistant. The Government were

represented by their Agent, Ms. D.S. van Heukelom, and

Mr. J.E.E. Schutte from the Ministry of Justice as advisor.

8. After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, placed itself at the

disposal of the parties with a view to securing a friendly settlement

of the case. Active consultations with the parties took place between

December 1986 and February 1987. 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

9. 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, Acting President

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

The text of this Report was adopted on 12 May 1988

and is now transmitted to the Committee of Ministers of the Council of

Europe, in accordance with Article 31 para. 2 of the Convention.

10. 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.

11. 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.

12. 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. Particular circumstances of the case

13. The applicant is a person with a considerable criminal

record. He has been convicted of various crimes in the Netherlands,

inter alia, of armed robbery at a jeweller's shop committed in

Amsterdam on 24 October 1979. For this offence he was sentenced to

six years' imprisonment.

14. In November 1980 the Amsterdam Regional Court (Arrondisse-

mentsrechtbank) declared admissible a request from Sweden for the

applicant's extradition to stand trial for serious criminal offences

committed in Stockholm in September 1979, namely two armed robberies

in connection with attempted manslaughter and assistance to escape

from a court building, again in connection with attempted

manslaughter.

15. In August 1981 the applicant escaped from Scheveningen prison

together with one Stanley Hillis and others.

16. On 2 April 1982 he was arrested. At his arrest he was found

in possession of a loaded firearm.

17. On 24 September 1982 the Utrecht Regional Court convicted the

applicant of armed robbery and sentenced him to six years'

imprisonment.

18. The Court found the applicant guilty of having participated on

20 January 1982 in an armed hold-up, committed by several masked

persons at a bank in Baarn. This finding was based on statements made

by two anonymous witnesses before the police and, by one of them, also

before the investigating judge and his deputy.

19. The witnesses were not heard at the trial as they wished to

remain unknown for fear of reprisals. The Public Prosecutor knew the

identity of both anonymous witnesses from his consultations with the

police. The defence therefore only had the opportunity to submit

questions to one of these witnesses in writing via the investigating

judge. Of fourteen questions, only two were answered.

20. The Utrecht Regional Court admitted as evidence the procès

verbaux (PVs) drawn up by the police and by the investigating judge on

the hearings of the anonymous witnesses. These PVs and the reports of

the police and investigating judge relating thereto were summarised in

the judgment as follows:

"h. Account given by the reporting officer - in substance:

"'On 25 January 1982 an anonymous telephone call was

"received in the Police Information Room of Amsterdam,

"when a man's voice was heard saying: 'A few days ago a

"hold-up took place at a bank in Baarn. Those

"responsible for the hold-up are Stanley Hillis, Paul

"Molhoek and a Yugoslav. Stanley Hillis and the Yugoslav

"escaped from prison in The Hague in August last year.'

"i. An official report, included in the case-file,

"and drawn up on 18 March 1982, No 425-1/1982, by Jietze

"Radersma, Municipal Police Adjutant in The Hague,

"comprising inter alia - reproduced in substance -

"The account given by the reporting officer aforesaid:

"On 26 January appeared before me a man, who for fear

"of reprisals desired to remain anonymous but whose

"identity is known to me. He stated as follows:

"'A few months ago four men escaped from the Detention

"Centre in The Hague, among them a Yugoslav and an

"Amsterdamer. The Yugoslav, the Amsterdamer and Paul

"Molhoek carried out a hold-up a few days ago on a bank

"in Baarn, in the course of which the staff of the bank

"were locked up.

"'I (the reporting officer) wish to add that, after being

"shown various photographs included in the police file,

"he picked out photos of the following persons: Slobodan

"Kostovski, born in Novi Pazar (Yugoslavia) on

"4 December 1953, as being the Yugoslav to whom he

"had referred; Stanley Marshall Hillis, born on

"10 September 1946, as being the Amsterdamer in question.'

"j. An official report included in the case-file, drawn

"up on 22 March 1982, No. 7.425/1982, by the Reporting

"Officer Weijman aforesaid and by Tom de Recht,

"Detective-Sergeant in the Municipal Police Force of

"The Hague, comprising inter alia:

"The account given by the officers first mentioned -

"reproduced in substance:

"'On 23 February 1982 appeared before us a person, who

"for security reasons wishes to remain anonymous but

"whose identity is known to us. He stated his knowledge

"that Stanley Hillis, Slobodan Kostovski and Paul

"Molhoek, who were known to him, were guilty of the

"armed raid on a branch of the Nederlandse Middenstands

"Bank in Baarn on or about 19 January 1982.'

"2a. A report on the hearing of an anonymous witness

"dated 8 April 1982, drawn up and signed by Mr. PWR

"Nuboer, Examining Magistrate for Criminal Matters in

"the district of Utrecht, comprising inter alia -

"reproduced in substance:

"The sworn statement made before the aforesaid examining

"magistrate by a person who for fear of reprisals wishes

"to remain anonymous:

"'On 23 February 1982 I made a statement to the police

"in The Hague which was included in a report drawn up on

"22 March 1982. You read out that statement to me. I

"declared that it is the truth and that I stand by it,

"on the understanding that I was not aware that the bank

"was in Baarn, at No. 1 Nieuwstraat. My knowledge stems

"from the fact that both Stanley Hillis and Paul

"Molhoek, as well as Aad Denie, had all told me about

"the hold up. They said that they had taken not only

"cash, but also American travellers' cheques and

"Euro-cheques. I myself saw a number of the Euro-cheques.'

"b. A report on the hearing of an anonymous witness

"dated 22 June 1982, drawn up and signed by

"Mr. AH Weijsenfeld, Deputy Examining Magistrate

"for criminal matters in the District of Utrecht,

"comprising inter alia - reproduced in substance:

"The sworn statement made to the aforementioned

"examining magistrate by a person who for fear of

"reprisals wishes to remain anonymous:

"'I stand by the statement which I made to the examining

"magistrate in Utrecht on 8 April 1982.

"I am not the person who telephoned anonymously to the

"Police Information Office in Amsterdam on 25 January 1982,

"nor the person who made a statement on 26 January 1982

"to the Police Station in The Hague. I am acquainted

"with Hillis, Kostovski, Molhoek and Denie and have no

"doubts as to their identity.'

"3. A statement made under oath at the Court sitting

"by Cornelis Weijman, comprising inter alia -

"reproduced in substance:

"'The report concerning the anonymous witness held on 23

"February, as recorded in the report made to me by Tom

"de Recht, is correct.

"The witness was heard in my presence by Examining

"Magistrates Nuboer and Weijsenfeld.

"I consider the anonymous witness to be entirely reliable.'

"4a. A statement made under oath at the Court sitting

"by Frederik Willem Reinhard Nuboer, comprising

"inter alia - reproduced in substance:

"'The anonymous witness heard by me on 8 April made a

"favourable impression on me.

"The police offered me a further anonymous witness,

"namely the man who telephoned anonymously to the

"Municipal Police Station in The Hague on 26 January 1982.

"I have refrained from hearing him, however, because I

"cannot guarantee his anonymity.'

"b. A statement made under oath at the Court sitting by

"Anton Hendrik Weijsenfeld, comprising inter alia -

"reproduced in substance:

"'I considered this anonymous witness heard by me on

"22 June 1982 to be not unreliable.'

21. Noting that the sources of the knowledge communicated by the

witness could not be checked; that it could not form itself an

independent judgment as to the witnesses' reliability, and that the

accused was deprived of the possibility of being confronted with the

witnesses, the trial court (Utrecht Regional Court) nevertheless

decided to accept the statements cited above as decisive and reliable

evidence. It was convinced of the applicant's guilt by this evidence

considering that the statements strengthened and sometimes

complemented each other and that the reporting Officer C. Weijman and

the Investigating Judges Nuboer and Weijsenfeld said at the trial with

regard to one of the two anonymous witnesses that he was "entirely

reliable", "reliable" and "not unreliable". In addition the trial

court noted that the applicant was previously convicted of similar

offences. The Utrecht Regional Court convicted the applicant and

sentenced him to six years' imprisonment on 14 September 1982.

22. The applicant appealed to the Amsterdam Court of Appeal

(Gerechtshof). This Court quashed the judgment appealed from on the

ground of discrepancies between the reasons stated in that judgment

and the facts that were considered to be proven. However, after a

retrial, the Amsterdam Court of Appeal likewise convicted the

applicant on 27 May 1983 of having participated in armed bank robbery

and sentenced him to six years' imprisonment.

23. Like the Utrecht Regional Court, the Amsterdam Court of Appeal

considered the above reports on the statements made before the police

and, as the case may be, before the investigating judges, by the two

anonymous witnesses to be admissible evidence. It was considered

plausible that, according to the declarations made before the

appellate court by a police inspector and the investigating judge,

both anonymous witnesses had justifiable reasons to fear reprisals

from the accused and his accomplices. The Court thereby considered

the applicant's guilt to be proven, noting that the anonymous

witnesses offered to give evidence on their own initiative and made

reliable or, as the case may be, reasonably reliable impressions on

the police inspector and the investigating judge. The Court

considered it to be a contributory factor that there was an innate

connection and coherence between the anonymously given statements.

In fixing sentence the Court of Appeal had regard to the applicant's

criminal record.

24. Subsequently the applicant appealed to the Supreme Court (Hoge

Raad). This appeal was rejected on 25 September 1984. The Supreme

Court found that the Court of Appeal dealt with the issue of whether

or not the statements of the anonymous witnesses could be admitted

and adduced sufficient reasons for doing so. The Court furthermore

stated that, if the judge deemed it necessary, in the interest of a

proper administration of justice, to restrict the obligation to answer

questions to some extent, and notably to allow a witness not to answer

questions about the identity of persons, the relevant provisions of

the Convention did not prevent him from doing so.

25. The attorney general (Procureur-General) had stated in his

submissions to the Supreme Court:

"... the entire situation, must soon lead to

further reflection and the laying down of rules

concerning the admissibility and the limits of the use

of evidence obtained from anonyous witnesses, in

particular in the light of Article 6 para. 3 (d) of the

Convention, as otherwise the confidence in the

administration of justice will be seriously shaken."

B. Relevant domestic law and practice

26. The Netherlands Code on Criminal Procedure (CCP) in its

present version does not contain provisions that deal expressly with

statements by anonymous witnesses.

What constitutes evidence is laid down in Article 339 CCP,

namely:

i) the judge's own observations;

ii) statements made by the accused;

iii) statements made by a witness at the trial;

iv) statements made by an expert;

v) written documents.

a) Evidence given by the witness

27. It follows from Article 342 CCP that statements of witnesses

must, in principle, be obtained at a hearing before the trial court.

(English translation of Article 342 CCP)

"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 of which he is accused,

solely on the statement of one witness."

28. Article 295 CCP provides for an exception to this rule. It

allows the use, as evidence, of a deposition made under oath before

the investigating judge if the witness is prevented by circumstances

beyond his control to appear before the court.

(English translation of Article 295 CPP)

"An earlier statement by a witness, who, having

been sworn in or instructed, in accordance with Article 216

para. 2, has died, or who, in the opinion of the court,

could not appear at the trial or of whom the hearing

[at the trial] has been dispensed with, in accordance

with Article 280 para. 7, shall be considered as having

been made at the trial, on condition that it is read

aloud there."

29. Article 187 CCP provides that where the investigating judge

considers that there are reasons to fear that a witness will be unable

to appear in court, he shall invite the Public Prosecutor and the

accused and his defence counsel to attend the hearing of this witness,

unless the examination has to be carried out without delay in the

interest of the investigation.

(English translation of Article 187 CCP)

"If the investigating judge is of the opinion

that there are grounds for assuming that the witness or

the expert will not be able to appear at the trial, he

shall invite the public prosecutor, the defendant

and counsel to be present at the preliminary hearing,

unless, in the interest of the investigation, no delay

of the hearing can be allowed."

30. A hearing of a witness at the trial in the presence of the

defence counsel but in the absence of the accused is not provided for

under Dutch law. On the contrary, it follows from the jurisprudence

of the Supreme Court (1), that in the absence of an accused his

defence counsel may not act for him in court proceedings, except in

cases before the District Courts (kantongerechten) involving

non-indictable offences, and, at the discretion of the court, in cases

involving less serious indictable offences, which are not punishable

by a prison sentence, before the Regional Courts as referred to in

Articles 270 and 398 (ii) CCP.

31. An accused may, however, be removed provisionally from the

court hearing while the hearing may continue in the presence of his

defence counsel.

Such measures can be taken in the following cases:

- Article 304 CCP: when questions relating to the

mental state of the accused are discussed;

- Article 303 CCP: when the accused refuses

to remain silent or otherwise disturbs the

hearing;

- Article 292 (i): when a witness is heard in the

absence of the accused.

The defendant must, according to Article 285 (i) CCP, be given

the opportunity to put questions to a witness.

(English translation of Article 285 (i) CCP)

"After the witness has made his statement,

questions may be put to him by the judges, and,

following them in order, by the public prosecutor and

_____________

(1) 23.11.1971, Dutch Jurisprudence 1973, p. 293;

26.2.1980, Dutch Jurisprudence 1980, p. 246.

by the defendant or, if the witness has been summoned

or called up by or at the request of the defendant, or,

if the witness is heard at his own request, in

accordance with Article 280 para. 6, [after the judges,

the witness may be questioned in order] by the

defendant and by the public prosecutor. If, in

accordance with Article 284 para. 3, the witness has

already been interrogated by the defendant or his

counsel, then directly after the judges the public

prosecutor may put questions to him."

b) Documentary evidence

32. Written documents in the meaning of Article 339 CCP are

defined in Article 344 which reads in its relevant passages:

(English translation of the relevant provisions of Article 344 CCP)

"1. By written documents is understood:

1° ...;

2° reports and other writings, 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 writings; but these are only valid

in conjunction with the content of other means of

evidence.

2. The judge can accept as proven, that the

defendant has committed the act of which he is accused,

on the report of an investigating officer."

c) Case-law in regard to hearsay evidence

33. In a judgment of 20 December 1926 the Supreme Court ruled,

inter alia, that neither a literary nor a systematic

interpretation of the law lead to the exclusion of hearsay evidence

(de auditu). With regard to witnesses who wish to remain anonymous

for justified fear of reprisals the practice has developed to consider

them as witnesses who will be unable to appear in court and who may

therefore make a deposition under oath before the investigating judge

in accordance with Article 216 CCP. Article 187 CCP is not applied in

these cases and the Supreme Court sanctioned this practice, ruling in

a judgment of 4 May 1981 (1) that the failure to apply the rule

contained in Article 187 CCP did not render the testimony

inadmissible. The Supreme Court gave to understand in various

decisions that in the assessment of the probatory value of statements

obtained from anonymous witnesses extreme caution should be observed

(2).

____________

(1) Dutch Jurisprudence 1982, p. 268.

(2) E.g. judgment of 4.5.1981, Dutch Jurisprudence 1982, p. 268.

III. SUBMISSIONS OF THE PARTIES

A. The applicant

34. The applicant submits that the use of statements obtained from

anonymous witnesses in criminal proceedings against a defendant, who is

not able to challenge the content of these statements or to have a

direct confrontation with the witnesses, limits the elementary right of

the accused to a fair trial. Referring to the judicial practice in

many member States of the Council of Europe relating to the problem of

anonymous witnesses, he submits that statements from such witnesses

are usually admitted only as additional evidence.

35. The applicant considers the practice of the Netherlands courts

to admit statements from anonymous witnesses as evidence, subject to

particular caution, to be unsatisfactory. The obligation of the

Netherlands judges to state complementary reasons when relying on

statements obtained from anonymous witnesses has, in the applicant's

opinion, proved to be unsatisfactory. He points out that it is very

difficult, if not impossible, for the trial judge to assess the

reliability of a witness on the basis only of a written report or

verbatim record on this witness's deposition in pretrial proceedings.

36. Referring to the judgment of the Eur. Court H.R. in the

Unterpertinger case (see para. 45 below), the applicant submits that

it is of no relevance that in his case the Public Prosecutor likewise

did not attend the hearing of the witnesses. He points out that the

Public Prosecutor possessed all the information the police had

concerning the anonymous witnesses. In any event the fact that the

Public Prosecutor likewise did not attend the hearing of witnesses did

not prevent the Court in the Unterpertinger case from finding a

violation of the rights of the defence. In fact the impossibility to

put questions to the witnesses deprived the applicant of testing their

credibility. He considers that the absence of direct confrontation

with the defence leads to a situation in which a witness may be more

easily tempted not to tell the entire truth. The possibility of

submitting questions to the witness in writing or to put questions to

the examining officers does, in the applicant's opinion, not

constitute an adequate means to safeguard rights of the defence as

neither the trial court nor the defence can see the witnesses reaction

to the questions and observe the manner in which he replies. In any

event, only a few of the questions put by the defence were in fact

answered. Moreover, an anonymous witness who could make false

declarations would be immune from prosecution if he committed perjury.

37. The applicant finally submits that at least one of the

anonymous witnesses is presumably an informant of the police.

Granting a police informant the privilege of keeping his anonymity on

the basis of the seriousness of the offence denounced by him, amounts

to treating the suspect as being guilty. The applicant concludes

that, in his case, Article 1 paras. 1, 2 and 3 (d) of the Convention

were violated.

B. The Government

38. The respondent Government submit that none of the specific

rights laid down in Article 6 para. 3 (d) as components of the more

comprehensive right to a fair trial in the meaning of paragraph 1,

have an absolute character. When examining whether Article 6 was

violated, the proceedings have to be considered as a whole. The

circumstances in the present case were most exceptional judged in the

light of the Netherlands judicial practice but nevertheless the use of

the anonymous witnesses' statements was sanctioned by the Supreme

Court.

The necessity of the use of statements made by anonymous

witnesses at the pre-trial stage who, for fear of reprisals, refuse to

be heard in front of the accused at the trial arose in the Netherlands

in the course of time as a result of a development of crime becoming

more violent, more aggressive and more organised.

39. Explaining the Netherlands case-law the Government submit that

not only explicitly articulated threats but also a general

intimidating reputation of a suspect can be admitted as a valid reason

for a witness to remain anonymous. The Government point out that the

phenomenon of intimidation of witnesses by dangerous criminals who

belong to the sphere of organised crime is a threat to the rule of law

and to democratic society. In the light of such threats the

Governments had to find a balance between the protection of society

and of the witness and the interests of the suspect. Solutions like

screening off the witnesses in the courtroom, police protection,

change of identity, etc. were not adequate. The hearing of a witness

by the trial court in the absence of the defendant is, according to

the Government, not possible under Netherlands law, because the

opinion prevails that no exception was admissible from the rule laid

down in Article 283 (i) CCP (see para. 31 above). The Government

point out that even the Commission admitted in its case-law that

evidence of anonymous witnesses was an essential and necessary means

in combating organised crime. Furthermore, the Government doubt

whether a method whereby the name of the witness is made known to the

lawyer, but not to the accused, would be effctive. It is questionable

whether a lawyer can invoke his professional secrecy vis-à-vis his

client.

40. In the Government's opinion, the Unterpertinger judgment

cannot be interpreted as giving an absolute right to hear a witness.

The facts underlying the Unterpertinger case could be distinguished

from the present case as in the Unterpertinger case the persons who

laid the criminal charges afterwards relied on their right of refusal

to give evidence. In the present case the anonymous witnesses were

not the victims of the denounced offences and furthermore the

applicant could, in principle, put questions to these witnesses in

writing. Furthermore the applicant called the investigating judge and

the investigating police officer to appear in court. Questions, the

answer to which would have revealed the witness's identity, were,

however, not allowed. Therefore all questions which the applicant

wanted to ask these officers in order to find out how they tested the

reliability of the anonymous witnesses were stopped by the trial judge.

Nevertheless the Government consider that the courts dealt with the

evidence before them with utmost caution and circumspection. The

rights of the defence were therefore not violated.

IV. OPINION OF THE COMMISSION

A. Points at issue

41. The issue to be determined is whether having regard to the

fact that the court in convicting the applicant relied exclusively on

evidence given by anonymous witnesses, the applicant's right to a fair trial in

the sense of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) was violated.

42. The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention is

worded as follows:

1. In the determination of his civil rights and

obligations or of any criminal charge against him,

everyone is entitled to a fair and public hearing ...

and Article 6 para. 3 (d) (Art. 6-3-d) reads:

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.

43. The applicant complains that the two provisions are violated

because he had been convicted exclusively on the basis of statements

made to the police and in one case also to the investigating judge and

his deputy in the absence of himself, of defence counsel and also of

the public prosecutor by two witnesses whose identity remained unknown

to the court as they wished to remain anonymous and were therefore

not heard at the applicant's trial. He asserts that consequently he

had no opportunity to examine these anonymous witnesses or to have

them examined at any stage of the proceedings and to put their

credibility in doubt.

44. The Government submitted that in the interest of combating

organised crime and of the protection of witnesses it was necessary to

rely on anonymous witnesses. This was, however, done in a cautious

manner and the guarantees of a fair trial were respected in that the

public prosecutor was likewise not present when the two witnesses in

question made their depositions. Furthermore, the applicant and his

defence counsel had the opportunity to submit questions to the

witnesses in writing and to put questions to the officers who had

heard the anonymous witnesses. In these circumstances there is, in

the Government's submissions, no breach of Article 6 (Art. 6) of the

Convention.

45. The Commission first recalls that the guarantees contained in

paragraph 3 of Article 6 (Art. 6-3) of the Convention are specific

aspects of the general concept of a fair trial set forth in paragraph

1. In the circumstances of the present case the Commission will

therefore consider the applicant's complaints from the angle of

paragraph 1 taken together with the principles inherent in paragraph 3

(d) (cf. Eur. Court H.R., Unterpertinger judgment of 24.11.1986,

Series A no. 110, p. 14 para. 29).

46. The Commission next recalls that the question of the

assessment of evidence is subject to the discretion of independent and

impartial tribunals. While Article 6 para. 1 (Art. 6-1) of the Convention does

guarantee everyone's right to a fair trial, it does not prescribe

rules on the admissibility and assessment of evidence, which are

essentially matters for the national law. It is therefore not for the

Commission to decide whether or not domestic courts have correctly

assessed evidence, but only whether evidence for or against the

accused has been presented in a manner and the proceedings in general

have been conducted in such a way that he had a fair trial (Barbera

and others v. Spain, Comm. Report 16.10.86, paras. 101-102).

In that respect it is essential that the defense is given the

possibility to challenge any evidence produced in court and relied

upon for the judgment.

47. As far as the testimony of witnesses is concerned, this principle is

explicitly set out in Article 6 par. 3 (d) (Art. 6-3-d) of the Convention. As

regards the reading out at a trial of statements made by witnesses at the

investigating stage of criminal proceedings, the European Court of Human Rights

has already held that such practice is in itself not inconsistent with Article

6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention, but the use of such

statements as evidence must nevertheless comply with the rights of the defence,

which it is the object and purpose of Article 6 to protect. This creates

particular problems where the person "charged with a criminal offence", who has

the right under Article 6 para. 3 (d) (Art. 6-3-d) to "examine or have

examined" witnesses against him, has not had an opportunity at any stage in the

earlier proceedings to question the persons whose statements are read out at

the hearing (Unterpertinger judgment, loc. cit., para. 31).

48. In the present case, the defence had the possibility at the

investigating stage to put questions in writing. However, of the 14

questions which counsel wished to have put to the witness, only two

were answered, as the interests of the witness to remain anonymous was

given precedence over the interests of the defense to test the

veracity and reliability of the testimony. In this respect, the

present case differs essentially from decision No. 11219/84 (dec.

10 July 1985, to be published), where the Commission stressed that, after

the applicant was ordered to leave the courtroom, defense counsel had

every opportunity, in accordance with Article 6 para. 3 (d) (Art. 6-3-d), to

examine the two anonymous witnesses who appeared before the Court of

Appeal. Furthermore, the Commission notes that in the present case

the identity of the witnesses was known to the prosecution but not to

the defense.

It is true that the Commission has in the past repeatedly

rejected complaints concerning the use of hearsay evidence. It stated

in this connection that Article 6 para. 3 (d) (Art. 6-3-d) does not grant the

accused an unlimited right to secure the appearance of witnesses

before the court with a view to having them cross-examined. It

concluded therefrom that a police informant whose indications lead the

investigations in the direction of the accused may well have a

legitimate interest in remaining anonymous and if such anonymity were

to be refused and these people required to appear in court, much

information needed if crimes are to be punished would never be brought

to the knowledge of the prosecuting authorities (No. 8417/78, dec.

4.5.1979, D.R. 16, p. 200 [207]; see also No. 8414/78, dec. 4.7.79,

D.R. 17, p. 231 and No. 4428/70, dec. 1.6.72, Collection 40, p.1). It

is, however, a common feature of all the cases just cited that the

hearsay evidence in question was corroborated by further evidence such

as statements of other witnesses as well as documentary evidence or a

confession of the accused himself.

49. In the present case however, the evidence before the court

consisted exclusively in the declarations of the two anonymous

witnesses. Neither was any corroborating evidence, such as

instruments or products of the crime, at the disposal of the court,

nor had the applicant ever made any confessions.

50. Furthermore, the Commission points out that even the

statements of the anonymous witnesses were themselves hearsay, as they

only said what they had allegedly heard from third persons. Neither of

the two actually eye witnessed the hold-up and could describe it in

such a detailed manner as only an eye witness could have been able to

do. The fact that the staff of the bank were locked up is a detail

the knowledge of which could have been obtained in various ways

subsequent to the hold-up. Finally, the allegation by one of the

witnesses that he saw a number of Eurocheques is not an objective

factor that was or could be checked as to its correctness and its

relevance to the crime in issue such as to constitute an element to

make the witness' statement as a whole appear reliable and

conclusive.

51. The Commission does not find it necessary, in the present

case, to reach a general conclusion as to the compatibility of

reliance on statements by anonymous witnesses with the requirements of

a fair trial but finds that in the present case the rights of the

applicant to a fair trial and in particular to question witnesses for

the prosecution were not respected.

B. Conclusion

52. The Commission concludes, by unanimous vote, that there has

been a violation of paragraph 1 read in conjunction with paragraph 3

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

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

Concurring opinion of MM. Ermacora, Gözübüyük, Schermers and Vandenberghe

We share the view of the majority that in this case Article 6

para. 3 (d) of the Convention has been violated as the applicant had

no sufficient opportunity to examine or have examined witnesses

against him.

We also share the view that Article 6 para. 1 was violated,

because of the cumulation of a number of circumstances. We would,

however, have preferred to enumerate these circumstances more

extensively, adding also the following arguments:

1) The Commission is aware that the behaviour of an accused person

may possibly influence the normal course of the proceedings. However,

in the present case, no concrete, direct evidence of intimidation in

respect of the testimony has been submitted.

2) The fact that not only one but two anonymous witnesses indicated

the applicant and two other persons as being the authors of the

hold-up cannot be considered as sufficient additional proof

corroborating the individual statements, as it does not follow from

the judgment in the applicant's case that the witnesses did not know

each other and had not possibly concerted their indications to the

police and the investigating judge. Finally, the allegation by one of

the witnesses that he saw a number of Euro-cheques, is not an

objective factor that could be or was checked as to its correctness

such as to constitute an element justifying considering of this

witness's statement to be as a whole conclusive.

3) It follows from the case-law of the Court (cf. Eur. Court H.R.,

Engel and Others judgment of 8 June 1976, Series A no. 22) and of the

Commission that it is primarily up to the national judiciary to assess

the evidence which is produced before it. However, when anonymous

testimony is heard formally, under oath, by an investigating judge,

this is clearly intended to accord to this testimony greater value as

evidence, than to mere anonymous information which is submitted in

court.

The Public Prosecutor, who, in contrast to the investigating judge

and the defence, was aware of the identities of the witnesses, wished

to lend to the two reported anonymous statements the status of formal

testimony, under Dutch law. The same attitude can be found in respect

of an anonymous statement to the police, which is accepted by the

Court of Appeal in evidence, as testimony by a witness, upon a hearing

under oath of the police officer concerned. The specific guarantee

contained in Article 6 para. 3 (d) of the Convention, read in

conjunction with Article 6 para. 1 of the Convention, equally applies

to such evidence. The defence must be given the opportunity to

contradict the testimony submitted in evidence in a suitable manner.

Without the possibililty of contradiction, a balanced evaluation of

the testimony, given the need for equality of arms of the parties, is

not guaranteed by the procedure. All the more importance must be

attached to this guarantee where the decision of the judge, in

essence, is based on the anonymous testimony.

&_APPENDIX I&S

HISTORY OF PROCEEDINGS

Date Item

______________________________________________________________________

18 May 1985 Introduction of the application

20 March 1985 Registration of the application

Examination of Admissibility

2 December 1985 Commission's deliberations and

decision to invite the Government to

submit observations on the

admissibility and merits of the

application

25 February 1986 Government's observations

4 July 1986 Applicant observations in reply

3 December 1986 Decision on admissibility.

Commission decides to hold an oral

hearing on the merits.

Examination of the merits

5 January 1987 Decision on admissibility transmitted

to the parties

29 January 1987 Government's observations on the merits

13 February 1987 Applicant's observations on the merits

8 October 1987 Oral hearing on the merits, Commission's

deliberations on the merits

5 May 1988 Commission's continued deliberations on

the merits, final vote

12 May 1988 Adoption of the Report

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KOSTOVSKI v. the NETHERLANDS

KOSTOVSKI v. the NETHERLANDS

LEXI