Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19331/92

by Cornelis Jacobus LIEFVELD

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 11 January 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 19 December 1991

by Cornelis Jacobus LIEFVELD against the Netherlands and registered on

11 January 1992 under file No. 19331/92;

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 1963. At the time of

the introduction of the application, he was detained in The Hague, the

Netherlands. He is unemployed. Before the Commission he is

represented by J.M. Sjöcrona, a lawyer practising at The Hague.

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

summarised as follows.

The applicant and his friend K. were suspected of the murder

of a Turkish man in the Amsterdam western harbour on or about

18 November 1988. The applicant's radio telephone was found next to

the corpse.

On 20 December 1988 the police received an anonymous phone call

informing them about a shooting in the western harbour area. The

anonymous caller told the police that a white passenger car had been

involved in the event and that he had heard that the tyres of the car

had been changed in order not to leave any trace. He also indicated

the registration number. Subsequently it appeared that the anonymous

man was known to the Criminal Intelligence Service (Criminele

Inlichtingendienst).

On the same day, 20 December 1988, the investigating judge

(rechter-commissaris) inspected the place of the crime at the western

harbour.

During the preliminary judicial investigation (gerechtelijk

vooronderzoek), K. was heard by the investigating judge on

30 December 1988 in the presence of his lawyer. He was also heard on

31 January 1989 in the presence of his lawyer and of the applicant's

lawyer. On that occasion, the applicant's lawyer had the opportunity

to put questions to K. which the latter answered.

On 9 March 1989 the investigating judge heard "Bravo", an

anonymous witness, under oath and after having ascertained his

identity, his reliability and the reasons adduced for wishing to remain

anonymous. "Bravo" declared that he knew the applicant well; that he

knew that the applicant had shot a Turk called Ali in the Western

harbour and received 15.000 or 20.000 Dutch guilders for this; that he

knew that the applicant had returned to the harbour to look for his

radio telephone, but that he had left as there were so many policemen

on the spot, and that he knew that the applicant, after the

assassination, had instructed a friend to have the tyres changed of a

white Ford Fiesta as he feared that the car might have left tyre tracks

in the field.

The witness R. had stated before the investigating judge on

30 December 1988 that the applicant had borrowed a white Ford Fiesta

with the registration number LD-33-ZD from R.'s girlfriend S. and that

the applicant, when he returned the keys of this car on 18 or

19 November 1988, instructed R. to change the car's tyres, which R. did

at the car tyre service station O. The owner of the car tyre service

station O. had declared on 28 December 1988 before the police that in

mid November 1988 a man in a white Ford Fiesta had insisted that the

tyres of this car be changed, despite the dealer's remark that the

tyres were still in perfect condition.

At the hearing of 11 May 1989 before the Amsterdam Regional Court

(Arrondissementsrechtbank), several people were heard: S., a

girlfriend of the applicant; K., the co-suspect, who was granted the

right to remain silent so as not to incriminate himself; the owner of

the café "C'est la vie" visited by the applicant and K., inter alia,

during the night of the murder; another guest of "C'est la vie" during

the same night; the police officer who heard S. and finally the

applicant.

After hearing each witness, the defence was given the

opportunity to put questions to the witness and to adduce arguments for

the defence.

On 25 May 1989 the Regional Court convicted the applicant of

murder and sentenced him to 15 years' imprisonment. It based its

finding of fact on the statements of: the witness who found the corpse,

six police officers, two experts, the applicant, two acquaintances of

the applicant, K., K.'s girlfriend, two members of the shooting club

of which the applicant was a member, the police officer who received

the anonymous call, the garage owner who changed the tyres, the chief

police inspector, the anonymous witness "Bravo" and the girlfriend of

the victim.

As to K., the Court observed that the applicant's representative

was present at K.'s hearing by the investigating judge and that on that

occasion he had the opportunity, of which he availed himself, to put

questions to K. who answered the questions without relying on his right

to remain silent. As to "Bravo", the Court considered that at the

hearing the applicant's representative did not ask for an adjournment

in order to have "Bravo" heard again by the investigating judge;

moreover the applicant's representative renounced hearing further

witnesses.

The applicant lodged an appeal with the Amsterdam Court of Appeal

(Gerechtshof) which adjourned its hearing of 8 November 1989 until

12 January 1990 in view of its schedule.

At its hearing on 12 January 1990, the Court of Appeal heard S.,

a girlfriend of the applicant; a guest of the café "C'est la vie";

the investigating judge; a barmaid at "C'est la vie"; an acquaintance

of the victim; the owner of "C'est la vie" and his wife; a handyman who

worked for the applicant and the bartender at the shooting club.

On that occasion, the investigating judge explained that she knew

"Bravo"'s identity, that she had assessed his reliability, that his

fears for reprisals justified his wish to remain anonymous and that she

had subsequently ascertained via other independent channels the

correctness of "Bravo"'s statements to her on 9 March 1989.

After hearing each witness, the defence was given the opportunity

to put questions to the witness and to adduce arguments for the

defence.

In the light of the recent case-law of the Convention organs, the

Procurator General (Procureur Generaal) requested that "Bravo" be heard

again by the investigating judge and that the defence be able to

question him on that occasion. The Court of Appeal granted this

request and adjourned the hearing.

On 15 February 1990 the investigating judge heard "Bravo" again

in a location outside her office while the applicant's representative

remained in the investigating judge's office. By means of a telephone

connection with a voice distorter, "Bravo" answered the applicant's

representative's questions, insofar as his answers did not compromise

his anonymity. The applicant's representative had submitted questions

in writing to the investigating judge who put them herself to "Bravo".

During the hearing, the applicant's representative was able to put

additional questions to "Bravo" through the telephone.

At the following hearing of the Court of Appeal on 14 March 1990,

the following persons were heard: the applicant, the police officer who

heard S., a guest of the café "C'est la vie", the owner of "C'est la

vie", K. and four experts.

After hearing each witness, the defence was given the opportunity

to put questions to the witness and to adduce arguments for the

defence.

On 28 March 1990 the Court of Appeal convicted the applicant of

murder and sentenced him to 12 years' imprisonment. It based its

judgment on the same evidence as that used by the Regional Court and

on the findings of the investigating judge during her inspection of the

area where the crime was committed, on the statements of the

investigating judge, the applicant and a guest from "C'est la vie" at

its hearing of 12 January 1990 and on the hearing of "Bravo" by the

investigating judge on 9 March 1989 and 15 February 1990 respectively.

As to the information provided anonymously by telephone to the

police, the Court of Appeal found it to be admissible in evidence since

the applicant's conviction was not exclusively or mainly based on this

information which, in addition, was supported by several other elements

of evidence. With regard to the statements made by "Bravo" before the

investigating judge, the Court of Appeal held that they were admissible

in evidence as the investigating judge knew "Bravo"'s identity and

decided on serious grounds that "Bravo"'s anonymity should be

respected, as the investigating judge correctly examined "Bravo"'s

reliability and finally, as the applicant's representative was given

the opportunity to put questions to "Bravo" before the investigating

judge. According to the Court, this conclusion was not altered by the

fact that "Bravo" did not answer certain questions which the defence

qualified as essential since there was a danger of "Bravo"'s identity

being disclosed. Article 6 para. 3 (d) of the Convention had therefore

been respected.

On 25 June 1991 the Supreme Court (Hoge Raad) dismissed the

applicant's plea of nullity. As an additional ground for the

admissibility in evidence of the anonymous phone call to the police,

it held that no issue could arise since this informer could neither be

heard by the defence nor by the prosecution and that, moreover, the

defence could question the witnesses heard in connection with the

anonymous information.

COMPLAINTS

The applicant complains that he did not have a fair trial since

he did not have the opportunity to examine adequately and properly

"Bravo" and the anonymous police informer whose testimonies were used

in evidence against him. He further states that "Bravo"'s testimony

could not be admitted in evidence pursuant to the relevant Dutch case-

law. He argues in this respect that the telephone connection through

which his representative received "Bravo"'s answers to the questions

put by him, but read to "Bravo" by the investigating judge, cannot be

accepted as an examination of a witness by the defence. He invokes

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

THE LAW

The applicant complains that he did not have a fair trial since

he did not have the opportunity to examine adequately and properly

"Bravo" and the anonymous police informer whose evidence was used in

convicting him. He further states that "Bravo"'s testimony could not

be admitted in evidence pursuant to the relevant Dutch case-law. He

argues in this respect that the telephone connection through which his

representative received "Bravo"'s answers to the questions put by him

but read to "Bravo" by the investigating judge cannot be accepted as

an examination of a witness by the defence. He invokes Article 6

paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention which provide,

insofar as relevant:

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

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law.

...

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; ..."

With regard to the decision of the Dutch courts in the present

case to admit the testimony of "Bravo" and of the police informer in

evidence pursuant to the relevant Dutch case-law, the Commission

recalls that the admissibility of evidence is primarily governed by the

rules of domestic law, and as a general rule it is for the national

courts to assess the evidence before them (see Eur. Court H.R., Lüdi

judgment of 15 June 1992, Series A no. 238, p. 23, para. 43).

However, the applicant's complaint that he was unable properly

to challenge the evidence of "Bravo" and the police informer is a

matter falling within the scope of the guarantees laid down in para.

3 of Article 6 (Art. 6-3) of the Convention, these guarantees being

specific aspects of the right to a fair hearing ensured by para. 1 of

this provision (see Eur. Court H.R., Isgrò judgment of

19 February 1991, Series A no. 194-A, p. 12, para. 31).

The Commission will consider the complaint under the two

provisions taken together. It must ascertain whether the proceedings,

considered as a whole, including the way in which the evidence was

submitted, were fair (Lüdi judgment loc. cit.).

The Commission recalls that, in principle, all evidence must be

adduced 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 and the judicial

investigation is not in itself inconsistent with paragraphs 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 he was making his statements

or at a later stage of the proceedings (see Eur. Court H.R., Saïdi

judgment of 20 September 1993, Series A no. 261-C, para. 43).

In the present case both the Regional Court and the Court of

Appeal based their decision on, inter alia, the statements of the

applicant, of K., of several police officers, of two experts, of the

police officer who received the anonymous call and of his superior as

well as of "Bravo" before the investigating judge. The Court of Appeal

also took into consideration, inter alia, the applicant's and the

investigating judge's statements at its hearing of 12 January 1990 and

the evidence given by "Bravo" before the investigating judge on

15 February 1990.

The Commission recalls that the applicant had the opportunity to

question "Bravo", to dispute his version of the events and to present

his own to the courts. The Commission notes in this respect that the

applicant did not before the Regional Court ask for "Bravo" to be

heard, but that the Procurator General at the Court of Appeal requested

that "Bravo" be heard again by the investigating judge and that the

defence be given the opportunity to question him.

The applicant was accordingly given the opportunity to question

"Bravo" during the second hearing of "Bravo" by the investigating judge

on 15 February 1990, in circumstances enabling the witness to protect

himself while at the same time respecting the applicant's right of

defence.

The Commission notes that the investigating judge considered

"Bravo", whose identity she knew, as reliable and found that this

witness' fear of reprisals justified his wish to remain anonymous.

With regard to the statement of the anonymous police informer,

the Commission notes that, although neither the prosecution nor the

defence could question him, his statements were supported by the other

evidence adduced in the course of the proceedings.

The Commission finally notes, that neither the statement of

"Bravo" nor that of the anonymous police informer constituted the only

or main item of evidence on which the applicant's conviction was based.

In conclusion, the Commission is satisfied that the

administration of the evidence at the applicant's trial was fair.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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LIEFVELD v. THE NETHERLANDS

LIEFVELD v. THE NETHERLANDS

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