Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16696/90

by Wilhelmus Elisabert BAEGEN

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 6 April 1990 by

Wilhelmus Elisabert BAEGEN against the Netherlands and registered on

11 June 1990 under file No. 16696/90;

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, born in 1957, resides in Utrecht. Before the

Commission he is represented by Mr. A.J.W. Woudstra, succeeded by Mr.

W.K. Anema, both lawyers practising at Utrecht.

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

summarised as follows.

On 1 February 1986 a certain Ms. X. reported to the Utrecht

Municipal Police (gemeentepolitie) that the applicant and a friend of

his, K., had raped her in the applicant's car whilst they were bringing

her home from a bar-dancing where the three had just met. When she

came home at 5.30 a.m. she immediately called the police who came to

see her. She requested to remain anonymous for fear of reprisals. A

procès-verbal of her statements was drawn up by the police.

On the same day, the police also heard Ms. X.'s mother who

related what her daughter had told her about that night. Ms. X.'s

mother also remained anonymous but the particulars of both her and her

daughter are known to the police and to the applicant's representative.

On the same day, 1 February 1986, a medical examination of Ms.

X. was carried out. Traces of sperm were found which would make it

possible to determine the blood group of the presumed rapist. The

applicant refused to submit to a blood and saliva test.

On 10 February 1986 the applicant was arrested and detained in

police custody on suspicion of having raped Ms. X. When heard by the

police on 10, 11, 12 and 13 February 1986 he claimed to be innocent.

On the day of his arrest the applicant was confronted with Ms.

X. by means of a see-through mirror. He declared that he did not know

her. On 12 February 1986, when confronted with the applicant in

person, Ms. X. recognised him as being one of the two rapists. A

police procès-verbal was drawn up following both confrontations

containing also the statement of the police officer present at the

confrontation. In this context Ms. X. reiterated her accusation

against the applicant whilst stating that she did not remember whether

K. had also raped her.

On 13 February 1986 the Public Prosecutor (Officier van Justitie)

released the applicant.

On 14 February 1986 the police examined a third witness who also

wished to remain anonymous for fear of reprisals. The particulars of

this witness are known to the police.

On 23 February 1986 K. was arrested and detained in police

custody as co-suspect of the applicant. The next day K. was confronted

with Ms. X. by means of a see-through mirror. However, he denied

having raped Ms. X. but stated that she had had intercourse with the

applicant in K.'s presence, but of her own free will. This declaration

was recorded in a procès-verbal on 25 February 1986. On 26 February

1986 he was released by the Public Prosecutor.

On 12 May 1986 the Public Prosecutor demanded the opening of

preliminary judicial investigations (gerechtelijk vooronderzoek).

In this context the Investigating Judge (Rechter-Commissaris)

heard on 16 July 1986 the third anonymous witness. On 24 July 1986 the

applicant was heard. He reiterated his statement that he had nothing

to do with the rape he was being accused of. On 4 August 1986 the

Investigating Judge heard the co-suspect K. who repeated his statement

made to the police.

On 25 August 1986 the applicant's representative wrote to the

Investigating Judge stating that he objected to the fact that his

client might be convicted on the basis of statements of an anonymous

witness whose wish for anonymity for fear of reprisals is in any event

unfounded. At the same time he submitted a list of questions to be put

to the anonymous witness during the hearing by the Investigating Judge.

On 28 August 1986 the Investigating Judge heard Ms. X. under oath

as there were well-founded reasons to assume that the witness would not

appear at the hearing for fear of reprisals. She stated that the

applicant had threatened her with reprisals if she reported the rape

to the police. Ms. X. stated again that the applicant had raped her.

On 14 October 1986 the Investigating Judge heard again the third

anonymous witness who made a statement in reply to the questions put

to him on behalf of the applicant.

On 31 August 1987 the applicant was summoned to appear before the

Regional Court (Arrondissementsrechtbank) on 2 October 1987. At the

hearing the applicant denied all charges.

On 16 October 1987 the Regional Court convicted the applicant and

sentenced him to 12 months' imprisonment on the basis of two procès-

verbaux of the police of 1 February and 26 February 1986 containing Ms.

X.'s statements concerning, inter alia, her confrontation with the

applicant in person, the procès-verbal of the hearing under oath of Ms.

X. by the Investigating Judge on 28 August 1986 and on the basis of the

statements of his co-suspect K. made to the Investigating Judge on 4

August 1986. These statements were read out before the Regional Court.

The applicant filed an appeal with the Amsterdam Court of Appeal

(Gerechtshof) on 20 October 1987. At the hearing before the Court of

Appeal on 6 September 1988, the applicant's representative requested

the Court to adjourn the hearing in order to have Ms. X. heard again

by the Investigating Judge. The Court rejected this request

considering that it was sufficiently informed. At the hearing the

applicant maintained that he was innocent.

By decision of 20 September 1988, the Court of Appeal upheld the

sentence imposed by the Regional Court but based it on Ms. X.'s

statements before the police on 1 and 12 February 1986, her statements

before the Investigating Judge on 28 August 1986, the co-suspect K.'s

declarations of 25 February 1986 to the police, Ms. X.'s mother's

statements to the police on 1 February 1986 and the statements of three

police officers on 1 and 12 February 1986. The Court stated that "[it

had] used the statements of the anonymous witnesses with care and

assessed their reliability in the light of the other items of

evidence".

The applicant's plea of nullity, introduced on 20 September 1988,

was rejected by the Supreme Court (Hoge Raad) on 10 October 1989. It

held that the anonymity of the witness did not make her statements

unreliable and that her anonymity - the witness being the victim of the

offence of which the applicant had been found guilty - was no obstacle

to the admissibility of her statements as evidence.

COMPLAINT

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

he was convicted on the basis of declarations of an anonymous witness

whose wish for anonymity was in any event unfounded. He submits that,

as he had also constantly challenged the reliability of the anonymous

person's statements as neither he nor his representative had been able

to question that person directly, his defence rights had been unduly

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

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 April 1990 and registered on

11 June 1990.

On 13 January 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 16

April 1993 and the applicant's observations were dated 30 July 1993,

after an extension of the time-limit.

THE LAW

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

he was convicted on the basis of declarations of an anonymous witness.

He submits that he challenged the reliability of the anonymous person's

statements as neither he not his representative had been able to

question that person directly. As a result, his defence rights had

been unduly restricted. He invokes Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d) of the Convention which reads, insofar as relevant:

"1. In the determination ... of any criminal charge

against him, everyone is entitled to a fair and public

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, following the judgment of the

European Court of Human Rights in the Kostovski case (judgment of 20

November 1989, Series A no. 166), the Supreme Court has defined certain

conditions for the statements of an anonymous witness to be used as

evidence. These conditions are: 1) the statement must have been taken

by a judge who knows the witness' identity, 2) this judge must have

expressed in the procès-verbal of the hearing of the witness his

opinion as to the reliability of the witness and as to the reasons

invoked by the witness for wishing to remain anonymous, and 3) the

judge must give the defence an opportunity to put questions or have

questions put to the witness. However, if the defence has not asked

for the witness to be examined, if the finding of guilt is based to a

significant extent on other evidence from non-anonymous sources and if

the court shows that it has used the anonymous statement with due care

and restraint, exceptions can be made to the conditions laid down in

the Supreme Court's case-law.

In the instant case, the Investigating Judge heard Ms. X. under

oath and indicated in the procès-verbal of the interrogation that she

considered the witnesses' fear of reprisals, on account of which they

wished to remain anonymous, to be well-founded.

The Government submit that the applicant failed to avail himself

of the opportunity to have the Investigating Judge put questions in

writing to Ms. X. On the other hand, the Investigating Judge did put

the applicant's written questions to the third anonymous witness on 14

October 1986. However, during the hearing before the Utrecht Regional

Court, the applicant did not ask for Ms. X. to be heard. He only did

so during the hearing on appeal. Moreover, the applicant's conviction

was not solely based on the anonymous witnesses' statements. In this

respect, the statement of the applicant's co-accused constituted a

significant element of evidence.

Finally, the Government observe that the Court of Appeal, in its

judgment of 20 September 1988, declared that "[it had] used the

statements of the anonymous witnesses with care and assessed their

reliability in the light of the other items of evidence".

The Commission, having regard to the parties' submissions,

considers that this complaint raises complex issues of fact and law

which must be examined on the merits. The application cannot,

therefore, be rejected as being manifestly ill-founded within the

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

grounds for inadmissibility have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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BAEGEN v. THE NETHERLANDS

BAEGEN v. THE NETHERLANDS

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