Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26668/95

by Frederik Karel Paul Maria VISSER

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 27 November 1996, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 December 1994

by Frederik Karel Paul Maria VISSER against the Netherlands and

registered on 8 March 1995 under file No. 26668/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1947, and residing in

Soest, the Netherlands. Before the Commission he is represented by

Mr. H.H. Rieske, a lawyer practising in Amsterdam.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

In April 1988 preliminary judicial investigations were initiated

into allegations that the applicant and an accomplice had intentionally

deprived another person of his liberty on 30 September 1987. The

investigations were closed on 28 June 1988.

During this investigation the applicant was placed in detention

on remand on 15 April 1988. He was released shortly afterwards.

On 17 August 1988 the applicant was summoned to appear before the

Regional Court (Arrondissementsrechtbank) of Utrecht on

18 October 1988. He was charged with the following criminal offences:

I. being an accomplice to the offence of intentionally and

unlawfully depriving another person of his liberty and keeping

him deprived thereof;

II. intentionally making use of falsified documents as if they were

genuine and unfalsified, whereas damage could arise from such

use;

III. theft committed by two or more persons together by means of

breaking and entering.

On 1 June 1989 the Regional Court acquitted the applicant of the

charges under I. and II., convicted him of the charge under III. and

sentenced him to ten weeks' imprisonment less the time spent in pre-

trial detention, whereas of these ten weeks five were suspended pending

a probation period of two years.

Both the applicant and the Prosecutions Department filed an

appeal against the Regional Court's decision with the Court of Appeal

(Gerechtshof) of Amsterdam.

Following a public hearing on 4 April 1991, the Court of Appeal

quashed the Regional Court's judgment on 18 April 1991 and convicted

the applicant of the charges under I., II. and III. As regards the

charge under I., the statement of an anonymous witness which was

contained in a procès-verbal drawn up by two police officers on

28 April 1988, was used in evidence. The applicant was sentenced to

one year's imprisonment less the time spent in pre-trial detention.

The applicant filed an appeal in cassation against this judgment

with the Supreme Court (Hoge Raad).

On 14 September 1992 the Supreme Court quashed the judgment of

the Court of Appeal. As regards the charge under I., the Supreme Court

considered that the way in which the facts had been established did not

meet the legal requirements. It recalled that the statement of an

anonymous witness could only be used in evidence if it had been taken

down by a judge, i.e. the investigating judge, who knew the identity

of the witness, who had expressed his opinion as regards the reasons

for the witness' desire to remain anonymous and this witness'

reliability, and who had provided the defence with ample opportunity

to question the witness. The Supreme Court referred the case to the

Court of Appeal of The Hague.

On 18 June 1993 a public hearing took place before this Court of

Appeal and on 13 September 1993 the investigating judge interviewed the

anonymous witness. This judge was aware of the identity of the witness.

In the procès-verbal of the interview the judge noted that the

statement of the witness appeared to be consistent and that it

corresponded to the statement given earlier to the police. Furthermore

the judge noted that the wish of the witness to remain anonymous was

based on the ground that he feared for reprisals since the offence with

which the applicant had been charged and in respect of which the

witness was asked to testify in itself concerned an act of reprisal.

The applicant's lawyer attended this interview in a different room and

the witness responded to the questions put by the lawyer.

On 29 September 1993 the Court of Appeal quashed the Regional

Court's judgment of 1 June 1989, acquitted the applicant of the charge

under III. and convicted him of the charges under I. and II.

As regards the charge under I., it appears from the Court's

judgment that it accepted the reasons for the anonymous witness' wish

to remain anonymous and that it based its finding of guilt on a procès-

verbal of 30 September 1987, drawn up by a police officer, containing

statements of the victim and of the police officers who had found the

victim, a procès-verbal of 20 October 1987 drawn up by the technical

investigation department, a report by a forensic laboratory

(Gerechtelijk Laboratorium) dated 14 December 1987, another procès-

verbal of 14 March 1988 drawn up by a police officer, a procès-verbal

of 25 April 1988 drawn up by the officer who had been in charge of a

scent-association test which had been carried out with sniffer dogs,

the statement of the anonymous witness, and the statement which the

applicant had made at the hearing before this Court.

In the determination of the sentence the Court of Appeal held

that in view of the nature and the seriousness of the offences, a non-

suspended prison sentence of two years and six months would be

appropriate, but that, in view of the unreasonable length of the

proceedings, the prison sentence should be considerably reduced: a

sentence of one year's imprisonment less the time spent in pre-trial

detention was imposed.

The applicant filed an appeal in cassation with the Supreme

Court, in which he complained, inter alia, that the Court of Appeal

should have declared the Prosecutions Department inadmissible instead

of merely reducing the sentence for the violation of the "reasonable

time" requirement contained in Article 6 of the Convention. He also

complained that the statement of the anonymous witness could not be

relied upon as it had been taken almost six years after the alleged

offence. The Supreme Court rejected the appeal in cassation on

7 June 1994.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

that the criminal charges against him were not determined within a

reasonable time.

2. The applicant also claims that the domestic courts violated

Article 6 paras. 1 and 3 (d) of the Convention by using the statements

of an anonymous witness in evidence whereas this witness had been

interviewed by the investigating judge six years after the alleged

offence had taken place. He argues that because of the time which had

elapsed the veracity of the witness' account could no longer be relied

upon.

THE LAW

1. The applicant complains that the criminal charges against him

were not determined within a reasonable time as required by Article 6

para. 1 (Art. 6-1) of the Convention which, insofar as relevant,

provides as follows:

"In the determination of ... any criminal charge against him,

everyone is entitled to a fair and public hearing within a

reasonable time by a ... tribunal established by law."

The Commission observes that the proceedings at issue started in

April 1988, when preliminary judicial investigations were initiated and

the applicant was placed in detention on remand, and ended on 7 June

1994, when the Supreme Court rejected his appeal in cassation. They

thus lasted for about six years.

The question, however, arises whether or not the applicant can

still claim to be a victim of a violation within the meaning of

Article 25 (Art. 25) of the Convention.

In this respect the Commission recalls that an applicant can no

longer claim to be a victim of the failure to observe the "reasonable

time" requirement contained in Article 6 para. 1 (Art. 6-1) of the

Convention when the national authorities have acknowledged, either

expressly or in substance, the breach of that provision and if redress

has been given (cf. Eur. Court HR, Eckle v. Federal Republic of Germany

judgment of 15 July 1982, Series A no. 51, pp. 30-31, para. 66).

The Commission notes that in the present case the Court of Appeal

of The Hague, having convicted the applicant on two charges, imposed

a prison sentence of one year although it considered a sentence of two

years and six months' imprisonment more appropriate. It appears from

the judgment that this mitigation was applied in view of the length of

the proceedings, which the Court of Appeal found to have lasted an

unreasonably long time.

The Commission concludes that the applicant can no longer claim

to be a victim of a violation of his right to a hearing within a

reasonable time as guaranteed by Article 6 para. 1 (Art. 6-1) of the

Convention in respect of the length of the proceedings, since he

received adequate redress at the domestic level.

It follows that this complaint must be rejected as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

2. The applicant further complains that the domestic courts violated

Article 6 paras. 1 and 3(d) (Art. 6-1, 6-3-d) of the Convention by

using the statement of an anonymous witness in evidence.

Article 6 para. 3 (d) (Art. 6-3-d) provides as follows:

"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;"

The Commission finds that it cannot, on the basis of the file,

determine the admissibility of this complaint at this stage and

considers that it is therefore necessary, in accordance with Rule 48

para. 2 (b) of the Commission's Rules of Procedure, to give notice of

this complaint to the respondent Government.

For these reasons, the Commission

DECIDES TO ADJOURN the applicant's complaint concerning the use

in evidence of a statement of an anonymous witness;

and, unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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VISSER v. THE NETHERLANDS

VISSER v. THE NETHERLANDS

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