Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20524/92

by Désiré DOORSON

against the Netherlands

The European Commission of Human Rights sitting in private on

29 November 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 June 1992 by

Désiré DOORSON against the Netherlands and registered on 24 August 1992

under file No. 20524/92;

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 1958 and resident in

Amsterdam. He is represented before the Commission by Mr. G.P. Hamer,

a lawyer practising in Amsterdam.

The facts as submitted by the parties may be summarised as

follows.

On 12 April 1988 the applicant was arrested as suspected of

narcotics offences. The reason for the suspicion was that some drug

abusers had declared to the police that the applicant had sold drugs.

Six of these drug abusers remained anonymous; they were referred to by

the police under the code names Y.05, Y.06, Y.13, Y.14, Y.15, Y.16 and

GH.021/87. Moreover, there were two persons whose identity was

disclosed, namely R. and N.

The declarations to the police had been made in the following

way. The eight witnesses had been shown a collection of photographs

of suspected drug dealers and had been asked if they could identify a

person who had sold drugs to them. They had then stated that they

recognised the applicant's photograph, which dated from 1985, as

representing the person concerned.

The rules governing the possession and use of photographs by the

police were laid down in the Automated Records Recognition Service

Regulations 1986 (Reglement Geautomatiseerde Registraties

Herkenningsdienst). As from 1990, this matter was governed by the

Police Records Act (Wet Politieregisters).

In the proceedings before the Regional Court (Arrondissements-

rechtbank) of Amsterdam the applicant requested that the persons who

had identified him should be heard as witnesses. This request was

rejected as far as the six anonymous persons were concerned. N. was

heard and changed his previous statement by denying that the applicant

had sold drugs to him. R. did not appear before the Court, and the

applicant finally refrained from requesting that he be heard.

On 30 May 1988 the applicant's lawyer was invited to attend the

hearing of two anonymous witnesses by the investigating judge (rechter-

commissaris). However, he left the investigating judge's chambers

before the hearing started. The investigating judge heard the

witnesses in the absence of the applicant's lawyer.

On 13 December 1988 the Regional Court convicted the applicant

and sentenced him to 15 months' imprisonment.

The applicant appealed to the Court of Appeal (Gerechtshof) of

Amsterdam which held a number of hearings in the case.

The applicant requested that the six anonymous witnesses be heard

by the Court of Appeal. This request was rejected, but the Court of

Appeal ordered that some of these witnesses be heard, in the presence

of the applicant's lawyer, by the investigating judge. On 14 February

1990 the investigating judge then heard the witnesses Y.15 and Y.16 in

the presence of the lawyer. The investigating judge had previously,

as a member of the Regional Court, ruled that there was sufficient

evidence against the applicant to prolong his detention on remand.

In the course of the hearing of 10 May 1990 before the Court of

Appeal, the Court gave further consideration to the wish of the two

anonymous witnesses to remain anonymous and concluded that it had been

argued sufficiently convincingly that the two anonymous witnesses had

good reasons to feel seriously threatened. Accordingly, the Court did

not call these witnesses.

On 28 August 1990 the witness N. was heard by the Court of Appeal

in the applicant's presence and the applicant's lawyer was given the

opportunity to question this witness. N. declared that he had lied to

the police and withdrew his statement accusing the applicant of drugs

traffic.

The witness R. repeatedly failed to appear before the Court of

Appeal. After the Court had ordered that he be brought there by force,

he was present at a hearing on 28 August 1990, but before he had been

heard, he disappeared from the Court and could not be found again.

The applicant also requested the hearing of K., a researcher who

had performed a great deal of research about drug abusers in Amsterdam.

Although K. was present at the hearing on 28 August 1990, the Court of

Appeal decided not to hear him as an expert on the ground that his

statement could not be expected to contribute to the elucidation of the

facts in the case.

In a police report of 19 November 1990, the reliability of the

two anonymous witnesses was confirmed by the investigating judge at the

public prosecutor's (officier van justitie) request.

At the following hearing, on 22 November 1990, the public

prosecutor (procureur-generaal) requested that a police officer, I.,

who was present on that occasion, be heard. Despite the protests of

the defence, the Court of Appeal agreed to the request, and I. was

heard concerning the way in which the investigation had been conducted.

Before the Court of Appeal the applicant argued that the

investigating judge had been biased when hearing Y.15 and Y.16, since

she had already found that the declarations of the anonymous witnesses

were sufficient to justify the applicant's detention on remand. He

also objected to the way the investigation had been carried out. There

was in his opinion no legal basis for including his photograph in a

collection of photographs to be shown to about 150 drug abusers in

Amsterdam. By placing his photograph in this collection, the police

had already indicated that he was a drug dealer. He also stated that

the use of his photograph in this manner was an interference with his

privacy.

On 6 December 1990 the Court of Appeal found the applicant guilty

of drug offences and sentenced him to 15 months' imprisonment.

The applicant appealed to the Supreme Court (Hoge Raad). He

based his appeal on the following arguments:

(a) He had not been allowed to hear witnesses and experts on the same

conditions as the public prosecutor. The Court of Appeal had refused

to hear K. as an expert. The latter would have been able to give

information about the anonymous witnesses who were all drug abusers.

On the other hand the Court of Appeal agreed to hear I. at the public

prosecutor's request.

(b) The applicant's conviction was essentially based on statements

by persons whom the applicant had not been able to hear in person, in

particular the witnesses Y.15, Y.16 and R. Moreover, he was not even

aware of the names of some of the witnesses. The fact that R. was not

heard was also to be attributed to the Court of Appeal which had

allowed him to leave the court hearing at which he had first been

present.

(c) The applicant's privacy had been breached by the use that was

made of his photograph.

(d) The investigating judge, who had decided on the applicant's

detention on remand, was not impartial when hearing the witnesses Y.15

and Y.16.

On these various points the applicant referred to Articles 6 and

8 of the Convention.

On 24 March 1992 the Supreme Court rejected the plea of nullity.

COMPLAINTS

1. The applicant complains that he did not have a fair trial as he

was convicted essentially on the basis of the statements of three

persons who were never heard in his presence and whom he never had the

possibility to interrogate. Two of these persons were anonymous (Y.15

and Y.16) and one disappeared from the court hearing (R). He invokes

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

2. The applicant further complains about the absence of a fair trial

in that the Court of Appeal considered the two anonymous witnesses to

be reliable on the basis of the declaration of the investigating judge

who, at a previous stage of the proceedings, had already decided to

keep the applicant detained because of the statements of the anonymous

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

3. The applicant finally complains under Article 6 paras. 1 and 3

(d) that he did not have a fair trial as the Court of Appeal refused

to hear K., whose hearing had been requested by the applicant, but

agreed to hear I. at the public prosecutor's request.

4. The applicant finally alleges that his right to privacy was

breached without any legal basis. There was no law which allowed the

police to show the applicant's photograph to third persons as if he

were a suspect. He relies on Article 8 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 June 1992 and registered on

24 August 1992.

On 8 February 1993 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

The Government's observations were received by letter dated 23

April 1993 and the applicant's observations were dated 1 June 1993.

THE LAW

1. The applicant complains that he did not have a fair trial as he

was convicted essentially on the basis of the statements of three

persons who were never heard in his presence and whom he never had the

possibility to interrogate. Two of these persons were anonymous (Y.15

and Y.16) and one disappeared from the court hearing (R.). The

applicant further complains that the Court of Appeal considered the two

anonymous witnesses to be reliable on the basis of the declaration of

the investigating judge who, at a previous stage of the proceedings,

had already decided to keep the applicant detained because of the

statements of the anonymous witnesses. The applicant finally complains

that the Court of Appeal refused to hear K., whose hearing had been

requested by the applicant, but agreed to hear I. at the public

prosecutor's request. 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; ..."

The applicant submits that a confrontation with Y.15 and Y.16 was

essential in order to ascertain whether they recognised him. He adds

that the anonymous witnesses, most of whom are drug addicts, are not

the most reliable witnesses because of their way of life. Moreover,

the anonymous witnesses only gave information about the applicant's

appearance after they had been shown his photograph. Therefore the

fact that his lawyer could put questions to Y.15 and Y.16 is not

decisive as the applicant himself was not present.

The applicant points out that it seems very strange that these

two particular anonymous witnesses were considered to be reliable,

whereas some 150 persons had been questioned and around 140 statements

were not included in the case-file.

The applicant further argues that these witnesses had been

granted anonymity as they had been threatened in the past in similar

circumstances and not in view of any possible threats by or on behalf

of the applicant. In any event the investigating judge did not give

any explanation as to why these anonymous witnesses should be

considered as being reliable.

The Government submit that the criteria established by the

Supreme Court for the use of anonymous statements have been complied

with in the present case. In this respect the Government point out

that the personal data of Y.15 and Y.16 were known to the investigating

judge, as is shown by the procès-verbal of 14 February 1990. In

addition, as laid down in the procès-verbaux, the investigating judge

had concluded that these witnesses had well-founded reasons for wishing

to remain anonymous and not to appear in court.

The Government observe that these anonymous witnesses were

questioned on two different occasions by the investigating judge and

that on the second occasion, the applicant's lawyer had the opportunity

to put questions to them. Considering also that the Court of Appeal

found that the applicant's defence had not been prejudiced by the fact

that he had not been able to question the witness R., the Government

take the view that the applicant did have a fair hearing.

The Government finally note that it was not necessary for the

applicant to be confronted with the witnesses since all of them,

including those whose statements had not been used as evidence,

positively identified the applicant from the picture independently of

each other. Moreover, their statements as to the applicant's

appearance and nickname largely coincided.

The Commission, having regard to the parties' submissions,

considers that these complaints raise complex issues of fact and law

which must be examined on the merits. This part of the application

cannot therefore be rejected as being manifestly ill-founded within the

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

grounds for inadmissibility have been established.

2. The applicant finally alleges that his right to privacy was

breached without any legal basis. There was no law which allowed the

police to show the applicant's photograph to third persons as if he

were a suspect. He relies on Article 8 (Art. 8) of the Convention

which reads:

"1. Everyone has the right to respect for his private and family

life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except as is in accordance with the

law and is necessary in a democratic society in the interests of

national security, public safety or the economic well-being of

the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The applicant argues in particular that the police used a

photograph of him which had been provided to them a long time ago for

another investigation. He further submits that the Police Records Act

1990 which authorises investigating officers to show photographs to

third parties, was not yet in force in 1988. The only relevant

regulations in this context, the Automated Records Recognition Service

Regulations 1986, about which neither Parliament nor the legislator has

been heard or given its consent, do not have the status of "law".

These regulations do not provide for the possibility of entering

photographs into a file. They contain an exhaustive list of data which

can be entered into a file concerning persons arrested or suspected of

an indictable offence. Moreover, no real test takes place as to the

circumstances in which a photograph may be provided to an investigating

officer and in which these officers may show it to third parties, like

the 150 persons in the present case.

The Government submit that on several occasions in the past the

police apprehended the applicant, known to them as a drugs dealer. In

that context photographs were taken of the applicant during police

custody or pre-trial detention, pursuant to Article 6, para. 2c of the

Regulations on Police Custody. These photographs were then kept in the

files of the Technical Investigation and Identification Service of the

Amsterdam Municipal Police and were used when, in August 1987, the

Amsterdam public prosecutor decided to take action against the nuisance

caused by drug trafficking in the area of the Zeedijk street and its

surroundings.

The Government further submit that the Automated Records

Recognition Service Regulations 1986 define the data relating to

persons that may be entered in files and stipulate that they can be

provided only to investigating officers if required for the

investigation of a criminal offence. Moreover, the Police Records Act

1990 allows for an investigating officer to make data, such as

pictures, known to third parties if necessary.

The Government conclude that there has been no interference with

the applicant's right to respect for his private life since the police

officers were entitled to use the applicant's photographs. In any

event, should this nevertheless amount to an interference with his

right to respect for his private life, the Government take the view

that this interference was in accordance with the law and necessary in

a democratic society for the prevention of disorder or crime within the

meaning of para. 2 of Article 8 (Art. 8-2).

The Commission has noted the following elements in the case as

it has been presented: first, that the photographs were not taken in

a way which constitutes an intrusion upon the applicant's privacy;

secondly, that the photographs were kept in police or other official

archives since they had been taken by the police in connection with a

previous arrest; and thirdly, that they were used solely for the

purpose of the identification of drugdealers during an action initiated

by the Public Prosecutor to relieve a certain area of Amsterdam from

the nuisance caused by drug trafficking and there is no suggestion that

they have been made available to the general public or used for any

other purpose. Under these circumstances, the Commission finds that

the use of the photographs of the applicant cannot be considered to

amount to an interference with his private life within the meaning of

Article 8 (Art. 8) of the Convention (cf. No. 18395/91, Comm. Dec.

7.12.92, LUPKER and others v. the Netherlands).

It follows that this part of 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, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicant's complaints concerning the fairness of the hearing

and notably the impossibility to question the witnesses against

him,

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)

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DOORSON v. THE NETHERLANDS

DOORSON v. THE NETHERLANDS

LEXI