Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19525/92

by H.F.

against the Netherlands

The European Commission of Human Rights sitting in private on

30 November 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 23 December 1991

by H.F. against the Netherlands and registered on 18 February 1992

under file No. 19525/92;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

20 May 1994 and the observations in reply submitted by the

applicant on 8 June 1994;

Having deliberated;

Decides as follows:

THE FACTS

1. The particular circumstances of the case

The applicant is a Dutch citizen, born in 1934, residing in

Nijmegen. Before the Commission, he is represented by Mr. G. Spong, a

lawyer practising in The Hague.

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

summarised as follows.

The applicant is a psychiatrist. From 1970 to 1 February 1989 he

was employed by the H. Foundation in Z., the Netherlands. From 1973

until the end of 1985 he was director and senior medical officer of the

"D.L." house of the H. Foundation. In this institution, minors with

mental problems are treated.

After several complaints had been made to the police, alleging

that the applicant had abused patients under his care and had committed

indecencies during a long period, a police investigation was carried

out in 1989. In January and February 1989, a large number of persons

were questioned by the police, including former patients and former

staff members of the "D.L." house.

In May 1989, the investigating judge (rechter-commissaris) heard,

inter alia, three former patients, J., T., and D. who alleged that they

had been abused by the applicant. The applicant's lawyer was present

at these hearings and was given the opportunity to question them. They

confirmed the statements they had previously made before the police.

A fourth alleged victim, C., however, did not appear before the

investigating judge. Initially, she had not been willing to bring a

complaint against the applicant at all, according to the police due to

psychological and emotional problems related to the abuse allegedly

suffered. She later changed her mind and agreed to make a statement

before the police, which she did on 27 February 1989.

When C. was subsequently summoned to appear before the

investigating judge, she or her social counsel informed the

investigating judge's registrar by telephone that she did not wish to

appear before the investigating judge. No reasons were given for C.'s

decision.

On 30 May 1990, the applicant, who denied all charges, was

convicted by the Regional Court (Arrondissementsrechtbank) of Arnhem

of (a) multiple abuse, as a doctor in a charitable institution, of a

person admitted thereto, (b) multiple indecent assault and (c) multiple

rape. The applicant was sentenced to six years' imprisonment. In

addition, his right to practise medicine was suspended for a period of

eleven years.

Both the applicant and the public prosecutor filed an appeal

against the judgment of 30 May 1990 with the Court of Appeal

(Gerechtshof) of Arnhem.

In the course of the proceedings before the Court of Appeal, the

applicant's lawyer repeatedly requested the Court to hear J., T., D.

and C. The applicant's lawyer argued that many other witnesses had been

heard since May 1989, when J., T. and D. had been examined; he wished

to confront them with these new statements, and in particular to

question C., whom he had never been able to examine. The Court of

Appeal rejected these requests, considering:

"Bij pleidooi heeft de raadsman zijn eerder gedaan verzoek tot

het horen van de slachtoffers ter zitting (als getuigen onder

ede) herhaald. Het hof wijst dat verzoek nogmaals af omdat het

van oordeel is dat de verdachte door het achterwege blijven van

dat verhoor redelijkerwijze niet in zijn verdediging kan worden

geschaad. (...)

De aangeefsters [J., T. en D.] zijn naar aanleiding van hun

aangiften bij de politie door de rechter-commissaris gehoord, in

bijzijn van de raadsman van de verdachte. Deze heeft gelegenheid

gehad om deze getuigen de vragen te stellen die hij in het belang

van de verdediging achtte.

Omtrent de aangeefster [C.] heeft de politie op blz. 13 van

het proces-verbaal nr. 3B/89 gerelateerd, dat het aanvankelijk

niet mogelijk was, contact met dit slachtoffer te krijgen, omdat

zij door psychische en emotionele problemen niet in staat was

aangifte te doen. Naar 's hofs oordeel moet ook het proces-

verbaal van de rechter-commissaris d.d. 25 april 1990, dat zich

in het dossier bevindt, inhoudende dat aangeefster of haar

hulpverleenster heeft meegedeeld dat eerstgenoemde geen gevolg

geeft aan de oproep om voor de rechter-commissaris te

verschijnen, in dat licht worden bezien. Derhalve is te

verwachten, dat aangeefster ondanks de daarop bestaande sancties,

bij oproeping niet zal voldoen aan haar verplichting tot

verschijning en tot het afleggen van een verklaring."

"In his submissions to the court, counsel has reiterated his

request to hear the victims (as witnesses under oath) before the

court. The court again rejects this request as it considers that

the rights of the defence cannot reasonably be impaired by the

absence of such a hearing. (...)

On the basis of their reports to the police, the informants

[J., T. and D.] have been heard by the investigating judge, in

the presence of the applicant's lawyer. He has had the

opportunity to put the questions, which he considered to be in

the interest of the defence, to these witnesses.

As regards informant [C.], the police have stated on page

13 of the procès-verbal nr. 3B/89 that initially it had been

impossible to contact this victim, as due to her psychological

and emotional problems she was incapable to report to the police.

In the opinion of the court the procès-verbal of the

investigating judge of 25 April 1990, which is included in the

case file and indicates that the informant or her social worker

have stated that the former will not comply with the summons to

appear before the investigating judge, should be seen against the

same background. Consequently, it is to be expected that the

informant, when summoned, will not comply with her obligation to

appear and to make a statement, despite the sanctions that this

refusal might entail."

In its judgment of 14 November 1990, the Court of Appeal quashed

the Regional Court's judgment and, after a new examination of the facts

and evidence, convicted the applicant, who still denied all charges,

of (a) multiple abuse, as a doctor in a mental hospital, of a person

admitted thereto, (b) multiple indecent assault and (c) multiple rape.

The Court of Appeal imposed the same sentence as the Regional Court.

The Court of Appeal's conviction was based on:

- the applicant's statements before the police, the Regional Court and

the Court of Appeal;

- the statements of J. before the police and the investigating judge;

- the statement of J.'s general practitioner before the investigating

judge;

- a letter of 23 July 1983 which J. wrote to her general practitioner

describing the alleged abuse by the applicant;

- the statements of T. before the police and the investigating judge;

- the statements of D. before the police and the investigating judge;

- the statement before the police of an employee of a mental hospital

where D. was admitted after having left the "D.L." house and who had

treated D.;

- the statement of C. before the police;

- the statement before the police of V., a friend of C. whom she had

met and had friendly relations with when both of them were patients in

the "D.L." house and to whom C. had confided that she was repeatedly

being abused by the applicant and who had advised C. to write about the

matter to C.'s therapist;

- the statements before the police and the investigating judge of K.,

a group leader at the "D.L." house, who in 1988 received a letter from

C. about the applicant's abuse and who had taken the matter up with his

superiors;

- a statement before the police of a member of the Board of the H.

Foundation who in November 1988 had a discussion with the applicant

about the complaints against the latter;

- the statements before the police and the investigating judge of C.'s

therapist H.C. to whom C. had complained that the applicant was abusing

her;

- the statements before the police and the investigating judge of

therapist A.H., who had treated C.'s friend V. and to whom C., V. and

H.C. went in order to discuss the applicant's abuse of C.; and

- the statements before the investigating judge of the police officers

who had taken down the various statements made before the police on

this case about the investigation and the method of questioning of the

persons heard by them.

In his subsequent appeal in cassation to the Supreme Court (Hoge

Raad) the applicant complained, inter alia, that the Court of Appeal

had violated Article 6 paras. 1 and 3 (d) of the Convention by

rejecting his request to hear the four alleged victims. With respect

to J., T., and D., he argued that the Court of Appeal had not properly

given reasons for its rejection. With respect to C., he referred to the

case-law of the European Court and Commission of Human Rights, arguing

that the defence had not had "adequate and proper opportunity to

challenge and question" her. According to the applicant, the Court of

Appeal should either have summoned C. or should have refrained from

using her statement in evidence. He emphasised that C.'s statement

constituted an important basis for his conviction.

In its judgment of 1 October 1991, the Supreme Court rejected the

appeal in cassation. It found that the Court of Appeal's refusal to

summon J., T. and D. was reasonable, taking into account that the

applicant's lawyer had not given specific reasons for his request to

hear them again, apart from a very general intention to confront them

with the statements of other witnesses.

As to C., the Supreme Court accepted that the Court of Appeal had

decided not to summon her given the situation in which she apparently

found herself. The Supreme Court held that the Court of Appeal could

reasonably use her statement in evidence, as it coincided with the

other statements obtained.

On 27 January 1992, the State Secretary of Justice

(Staatssecretaris van justitie) rejected the applicant's appeal for

pardon (gratie).

2. Relevant domestic law and practice

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

Strafvordering, hereinafter referred to as "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.

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).

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

investigation. In that event he will hear the suspect, witnesses and

experts as soon as possible and as often as necessary (Section 185

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 have put. Most investigating judges invite an accused and his

counsel to attend their hearings of witnesses.

The preliminary judicial investigation provides a basis for a

decision by the prosecuting authorities with regard to the further

prosecution of a suspect, and also serves to clarify matters which

cannot properly be investigated at the trial. The investigating judge

must act impartially, by also collecting evidence which might exculpate

the suspect. The investigating judge will close his investigation when

he considers it is completed. Both the suspect and the prosecuting

authorities will be informed about the closure of the preliminary

judicial investigation (Section 237 CCP).

If the public prosecutor finds that the results of the

preliminary judicial investigation justify further prosecution, he will

notify the suspect and commit the case for trial. The trial will then

follow.

At the time in question, the relevant law and practice as regards

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

whom the defence had asked to call before the beginning of the trial,

and who had not been summoned by the public prosecutor, would be

summoned by the court, unless the court - considering summoning

superfluous or fruitless - found that the suspect could, in all

fairness, not be harmed in his defence by refusing the summoning of the

witness (Section 280 para. 4 CCP).

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 judge only if he has been so

convinced through 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) what the judge has

himself observed; (ii) statements made by the accused; (iii) statements

made by a witness; (iv) statements made by an expert; and (v) written

documents.

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, about 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."

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

which, as far as relevant, reads:

"1. Written documents are understood to be:

1° ...;

2° official reports and other documents, drawn up in the

lawful form by bodies and persons who have the proper

authority and containing their statement regarding 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. (...)."

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:

- a statement by a witness concerning what he was told by another

person (hearsay evidence) may be used as evidence, albeit with the

utmost caution;

- 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.

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

the meaning of Sections 338 and 339 CCP, of statements made by a

witness not at the trial but before a police officer or the

investigating judge, provided they are recorded in an official report

which is read out in court. In the great majority of cases, witnesses

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

examining magistrate.

The law does not make the presence of counsel for the defence

compulsory during the investigation by the police.

Section 292 CCP enables the President of the court to order an

accused to leave the court-room so that a witness may be examined out

of his presence. If such an order is made, counsel for the defence may

question the witness and the accused shall be told immediately what has

happened during his absence and only then will the investigation be

resumed (Section 292 para. 2 CCP). Thus, on returning to the court-room

the accused may avail himself of his right to question the witness.

COMPLAINT

The applicant complains that the domestic courts violated Article

6 paras. 1 and 3 (d) of the Convention by rejecting his repeated

requests to hear J., T., D. and C. at the trial. With regard to C., he

argues that she had only made a statement to the police and that the

defence had not had an "adequate and proper opportunity to challenge

and question" her. In this respect he refers to the Kostovski, Delta,

Isgrò and Saïdi judgments of the European Court of Human Rights, and

the Commission's Report in the Cardot case.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 December 1991 and registered

on 18 February 1992.

On 2 March 1994, the Commission (Second Chamber) decided to

communicate the application to the respondent Government and invite

them to submit written observations on the admissibility and merits of

the application.

After an extension of the time limit, the Government's

observations were submitted on 20 May 1994. The applicant submitted his

observations in reply on 8 June 1994.

THE LAW

The applicant complains under Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d) of the Convention that he did not receive a fair

trial, as the Court of Appeal rejected his repeated requests to summon

the four alleged victims to the hearing and used their statements in

evidence.

Article 6 paras. 1 and 3 (Art. 6-1, 6-3) 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 (...)."

The Government submit that the applicant had a fair trial. He did

not, in the proceedings before the Regional Court of Arnhem, ask for

witnesses to be heard. The witnesses J., T., and D. were examined by

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

had the opportunity to question them. The use in evidence of their

statements is therefore consistent with para. 3 (d) of Article 6

(Art. 6-3-d). C.'s statement could be used in evidence without

violating the right of the applicant to a fair hearing, given C.'s

psychological and emotional problems and the consequences that a

questioning would have for her.

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

defence never had the opportunity to question C. The proof of the facts

concerning C. rests mainly on her own statement. The rights of the

applicant are not subordinate to the rights of the victim.

The Commission, having regard to the parties's submissions,

considers that the application raises issues of fact and law which can

only be resolved by an examination of the merits. The application can,

therefore, not be declared manifestly ill-founded within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds

for inadmissibility having been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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H.F. v. THE NETHERLANDS

H.F. v. THE NETHERLANDS

LEXI