LUPKER AND OTHERS v. THE NETHERLANDS
Doc ref: 18395/91 • ECHR ID: 001-1433
Document date: December 7, 1992
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AS TO THE ADMISSIBILITY OF
Application No. 18395/91
by Mathilde Elizabeth LUPKER and others
against the Netherlands
The European Commission of Human Rights sitting in private on 7
December 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
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 8 April 1991 by
Mathilde Elizabeth LUPKER and others against the Netherlands and
registered on 21 June 1991 under file No. 18395/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 27 May 1992 and the observations in reply submitted by
the applicants on 1 September 1992;
Having deliberated;
Decides as follows:
THE FACTS
This application has been submitted to the Commission by the following
persons:
1. Mathilde Elizabeth Lupker, a Dutch citizen born in 1967 and
resident at Nijmegen (the first applicant).
2. Caroline Christine van der Mandele, a Dutch citizen born in 1958
and resident at Nijmegen (the second applicant).
3. Rudolf Paesie, a Dutch citizen born in 1956 and resident at
Nijmegen (the third applicant).
4. Franciscus Johannes Joseph Maria Schoenmaeckers, a Dutch citizen
born in 1964 and resident at Nijmegen (the fourth applicant).
5. Jean Louis Bernard Seveke, a Dutch citizen born in 1964 and
resident at Nijmegen (the fifth applicant).
The applicants are represented before the Commission by Mrs. Ties
Prakken, a lawyer practising in Amsterdam.
The facts as presented by the parties may be summarised as
follows.
On 16 September 1986, parts of an office building at Nijmegen
were occupied by a number of persons as a protest against the town-
planning at Nijmegen and against a law which was seen as directed
against squatters. On 24 December 1986, the President of the Regional
Court (Arrondissementsrechtbank) of Nijmegen decided that the squatters
who occupied the building could be removed by force within three days
from the serving of this decision. The decision was served on 8
January 1987.
On 11 January 1987, some windows at the Town Hall of Nijmegen
were crushed, and there was a fire at one of the entrances of the Town
Hall.
On 14 January 1987, the Public Prosecutor (Officier van Justitie)
asked the Investigating Judge (Rechter-Commissaris) to open a judicial
investigation against X (unknown person) in regard to the fire at the
Town Hall. According to the police, those who had caused the fire were
to be found within the group of persons occupying the office building.
On 14 January 1987, the Investigating Judge decided that the
telephone of the occupied building could be tapped until 28 January
1987. In reality, telephone tapping occurred until 19 January 1987,
when the squatters were removed from the building.
In the Netherlands, telephone tapping is ruled by Sections 125f-
125h of the Code of Criminal Procedure (Wetboek van Strafvordering)
which provide:
"Art.125f. 1. In geval van ontdekking op heterdaad of van
een misdrijf waarvoor voorlopige hechtenis is toegelaten,
geeft ieder die werkzaam is bij een instelling van
telefonie ter zake van alle verkeer hetwelk door
tussenkomst van de instelling is geschied en ten aanzien
waarvan het vermoeden bestaat, dat de verdachte eraan heeft
deelgenomen, aan de officier van justitie of, tijdens het
gerechtelijk vooronderzoek, de rechter-commissaris op diens
vordering de door deze gewenste inlichtingen.
2. De artikelen 217-219 zijn van overeenkomstige
toepassing.
Art.125g. Tijdens het gerechtelijk vooronderzoek is de
rechter-commissaris bevoegd, indien het onderzoek dit
dringend vordert en een misdrijf betreft, waarvoor
voorlopige hechtenis is toegelaten, te bepalen, dat
telefoongesprekken, ten aanzien waarvan het vermoeden
bestaat, dat de verdachte eraan deelneemt, door de
opsporingsambtenaar worden afgeluisterd of opgenomen. Van
het afluisteren of opnemen wordt binnen tweemaal vier en
twintig uren proces-verbaal opgemaakt.
Art.125h.1. De rechter-commissaris doet te zijnen overstaan
processen-verbaal en andere voorwerpen, waaraan een gegeven
kan worden ontleend, dat is verkregen als gevolg van de
inlichtingen, bedoeld in artikel 125f, en die van geen
betekenis zijn voor het onderzoek, zo spoedig mogelijk
vernietigen. Van de vernietiging wordt onverwijld proces-
verbaal opgemaakt.
2. De rechter-commissaris doet op dezelfde wijze onverwijld
processen-verbaal en andere voorwerpen als in het vorige
lid bedoeld vernietigen voor zover deze betrekking hebben
op mededelingen gedaan door of aan een persoon die zich op
grond van artikel 218 zou kunnen verschonen indien hem als
getuige naar de inhoud van die mededelingen zou worden
gevraagd.
3. De rechter-commissaris voegt de overige processen-
verbaal en andere voorwerpen als in het eerste lid bedoeld
uiterlijk op het tijdstip waarop de beschikking tot
sluiting van het gerechtelijk vooronderzoek onherroepelijk
wordt, bij de processtukken.
4. De officier van justitie doet te zijnen overstaan de
processen-verbaal of andere voorwerpen, waaraan een gegeven
kan worden ontleend, dat hij heeft verkregen als gevolg van
de inlichtingen, bedoeld in artikel 125f, vernietigen
indien hij niet binnen een maand na het verkrijgen van die
inlichtingen een gerechtelijk vooronderzoek vordert. Hij
maakt van de vernietiging proces-verbaal op."
"Section 125f. 1. In case of flagrante delicto or of a
crime which allows for detention on remand, anyone working
in a telephone agency shall provide the public prosecutor
or, during the preliminary judicial investigations, the
investigating judge at his demand with the required
information concerning all communications effected through
this agency where there is a suspicion that the suspect has
participated in these communications.
2. Sections 217-219 equally apply.
Section 125g. During the preliminary judicial
investigations the investigating judge may, if the
investigation urgently so requires and if it concerns a
crime which allows for detention on remand, authorise the
investigating official to tap or record telephone
conversations where there is a suspicion that the suspect
has participated in them. A procès-verbal of the tapping
or recording shall be drawn up within forty-eight hours.
Section 125h. 1. The investigating judge shall have
destroyed, in his own presence, procès-verbaux and other
items from which data can be derived which have been
obtained as a result of the information, referred to in
Section 125f, or by means of tapping or recording, within
the meaning of the preceding Section, and which are not
relevant to the investigation. A procès-verbal of the
destruction shall immediately be drawn up.
2. The investigating judge shall likewise have destroyed
immediately procès-verbaux and other items referred to in
the preceding paragraph, insofar as they concern statements
made by or to a person who, on the basis of Section 218,
could refuse to testify if he would be asked as a witness
about the contents of those statements.
3. The investigating judge shall include further procès-
verbaux and other items referred to in the first paragraph
in the case-file at the latest when the decision to close
the preliminary judicial investigations becomes
irrevocable.
4. The public prosecutor shall have destroyed, in his own
presence, procès-verbaux and other items from which data
can be derived which have been obtained as a result of the
information, referred to in Section 125f, if he has not
demanded preliminary judicial investigations within a month
after obtaining that information. He shall draw up a
procès-verbal of the destruction."
On 17 January 1987, about 70 persons met in the occupied building
and discussed possible resistance against a removal action by the
police. Some persons whose names have not been disclosed were present
and forwarded information to the police.
On 19 January 1987, there was unrest at Nijmegen and the
squatters were removed by the police. Ten persons were arrested but
they were all released again within four days. On the same day, the
Investigating Judge authorised the tapping of the telephone of another
occupied building.
On 21 January 1987, there was a fire at the entrance of the
building of the National Police at Nijmegen. On 23 January 1987, in
connection with the investigation about that fire, the Investigating
Judge authorised the tapping of six more telephone lines. On 30
January 1987, he prolonged this authorisation in regard to four lines.
On 2 February 1987, the Public Prosecutor requested a further
judicial investigation about the incidents on 19 January 1987. On the
same day, the Investigating Judge prolonged the authorisation of
telephone tapping in regard to one line. On 13 February 1987, a
similar prolongation was granted in regard to another three lines.
On 19 March 1987, the Public Prosecutor again requested a
judicial investigation. As suspects he indicated eight persons, among
whom all five applicants. The charge was extended to cover
"participation in a legal person whose aim is the commission of
offences", this being the offence provided for in Section 140 para. 1
of the Penal Code (Wetboek van Strafrecht). On the same day, the
Regional Court gave permission to make a search at five different
addresses at Nijmegen.
During the judicial investigation, the police tried to collect
evidence by using a book containing photographs of persons who might
have had something to do with the problems in connection with the
removal of the squatters on 19 January 1987. This book, which
contained photographs of the applicants (with the possible exception
of the fourth applicant), was shown to pharmacists and car rental
companies, who were asked about whether any of the persons appearing
on the photographs had been their customers. These photographs had
either been given to the authorities in connection with applications
for a passport or a driving licence or been taken by the police in
connection with a previous arrest. Journalists were also interrogated,
and use was made of statements by the five unidentified persons who had
informed the police about the meeting on 17 January 1987 where violent
resistance against the police was being discussed and where three of
the applicants had made statements as spokesmen of the squatters.
On 24 March 1987, searches were carried out at five addresses at
Nijmegen. Seven of the eight suspects (among whom the first, second,
third and fifth applicants) were arrested on that day. The eighth
suspect (the fourth applicant) was arrested on 25 March 1987.
The applicants were released on 7 May 1987. Subsequently, they
were indicted, together with three other suspects, before the Regional
Court of Arnhem. They were charged primarily with participation in an
association whose aim was to commit certain offences (Section 140 para.
1 of the Penal Code) or, subsidiarily, with incitement to, or
complicity in, attempted killing, attempted serious ill-treatment, ill-
treatment, violence against persons and property and arson.
The trial before the Regional Court was held from 15 October to
7 December 1987. The defence tried to make the Court order the Public
Prosecutor to make the records about the telephone tapping available
so as to be able to make an assessment of whether the right to tap
telephones had been used correctly, but the Court refused to make such
an order. The Court also refused to make records available about the
investigations in regard to pharmacists and car rental companies. When
policemen were heard as witnesses, the defence wished to put questions
about informers, but the Court ruled that such questions were
inadmissible. At the request of the Court, the Investigating Judge
heard seven unidentified witnesses as well as two other persons.
During the last court hearing, on 7 December 1987, there was
unrest in the courtroom, and the President of the Court ordered persons
present to be removed, which occurred with the use of force. The
defence objected to the participation of all three members of the
Court, but these objections were rejected. The lawyers then left the
courtroom.
On 21 December 1987, the Regional Court pronounced its judgment.
All the accused were acquitted in respect of the primary charge but
convicted in respect of the subsidiary charge and sentenced to eight
months' imprisonment, out of which four months' imprisonment would be
a conditional sentence.
Both the sentenced persons and the Public Prosecutor appealed.
On 23 September 1988, the hearing was held before the Court of
Appeal (Gerechtshof) of Arnhem. On 7 October 1988, the Court of Appeal
convicted the accused of the primary charge. As to the conviction, the
Court of Appeal gave the following reasons:
"Het geproclameerde verzet impliceerde het plegen van
misdrijven, met gebruikmaking van onder meer rookbommen,
verfbommen, barricademateriaal en brandende autobanden.
Uit de bewijsmiddelen leidt het Hof voorts af dat het
samenwerkingsverband niet slechts het plegen van een enkel
misdrijf in het kader van één enkele actie als oogmerk had,
doch het op deze wijze ageren wilde voortzetten ten dienste
van het verzet tegen de leegstandswet, onderdrukking van de
zwarte bevolking in Zuid-Afrika en nog een reeks andere
zaken, in verband waarmede meerdere objecten als doelwit
werden aangemerkt."
"The announced resistance implied committing crimes, using
inter alia smoke bombs, paint bombs, material for
barricades and burning tires. The Court further infers
from the evidence that the co-operation did not only aim at
committing a single crime as part of one single action, but
that by these means it wanted to pursue the action in
favour of the resistance against the law pertaining to
unoccupied buildings, against the repression of the black
population in South Africa and some other matters in
respect of which several objects were considered as a
target."
The accused were sentenced to nine months' imprisonment, three
months of which would be a conditional sentence.
All the eight sentenced persons appealed on 18 October 1988 to
the Supreme Court (Hoge Raad). The case-file was transmitted to the
Supreme Court on 18 August 1989. In its judgment of 16 October 1990,
the Supreme Court rejected the appeals of seven of the sentenced
persons. In respect of the eighth person (the fourth applicant), the
judgment of the Court of Appeal was quashed. In its judgment, the
Court, inter alia, stated that the Court of Appeal clearly had
considered that the charges referred to the aim of committing offences
not only on the day of the removal of the squatters from the building
but also a considerable time before that day.
The Supreme Court also rejected a plea of nullity concerning the
use of information provided by anonymous police informers. The Court
observed in this respect that it did not appear from the case-file that
the applicants had requested an opportunity to interrogate the
anonymous informers or that they had contested the correctness of the
information provided by these persons. The Court added that there was
also other important evidence to support the conclusion in these cases.
COMPLAINTS
The applicants allege violations of the Convention in the
following regards:
Article 6 of the Convention
1. The cassation procedure before the Supreme Court which took
more than two years exceeded the "reasonable time" requirement in
Article 6 para. 1.
2. In the cassation procedure, the Supreme Court declared that
more had been proven than the Court of Appeal had actually found
proven, as a result of which the applicants were deprived of one level
of jurisdiction and of a "fair hearing" as referred to in Article 6
para. 1 (this complaint only refers to the first, second, third and
fifth applicants). The applicants submit that contrary to what was
said in the Supreme Court's judgment, the Court of Appeal had n
made any finding about a criminal aim before the day of the removal of
the squatters from the building.
3. As evidence, use was made of information given to a police
inspector by five anonymous police informers, which information had
only in general terms been recorded in a memorandum of this police
officer, this being a breach of Article 6 paras. 1 and 3 (this
complaint only refers to the first, second, third and fifth
applicants).
Articles 7 and 6 para. 2 of the Convention
4. The principle of legality was violated in that the applicants
were prosecuted and convicted in respect of "participation in a legal
person whose aim is the commission of offences", this being a too vague
definition whose scope and application could not be foreseen (this
complaint only concerns the first, second, third and fifth applicants).
Article 8 of the Convention
5. Without the applicants' consent, the police used in their
investigations a book containing the photographs of the applicants.
This was an interference with their right to respect for their private
life which was not "in accordance with the law" as required by Article
8 para. 2.
6. Telephone tapping was performed in regard to at least eight
telephone lines. All the applicants participated in conversations on
one or more of these telephone lines. Their right to respect for their
private life and their correspondence was therefore interfered with
without any justification under Article 8 para. 2. The applicants
state that, before the Dutch courts, they raised, in particular, the
following aspects of the telephone tapping:
- the telephone tapping was not exclusively aimed at
investigating and prosecuting criminal acts but had the more general
aim of "getting knowledge about the activities of the group",
- several times, telephone tapping was authorised with
retroactive effect, i.e. from 00.00 hours on the day the decision was
taken or, in the case of the decision of 19 January 1987, from 18
January at 00.00 hours,
- no substantive reasons were given for the decisions to permit
telephone tapping,
- insufficient minutes were kept about the telephone tapping,
- the telephone tapping was applied much more extensively than
was justified in the interest of the investigation and the prosecution.
Even arbitrarily selected telephone lines were tapped of organisations
of politically like-minded people against whom there was however no
suspicion of participation in criminal acts,
- the telephone tapping was effected by the general information
service of the police, whose task is not to investigate concrete
criminal acts, and this strengthens the impression that the aim was to
get a general picture of the squatters movement at Nijmegen rather than
investigate specific facts,
- none of the holders of the tapped telephone lines was
subsequently informed about the tapping,
- the Dutch legislation makes it easy to abuse telephone tapping,
since there are no adequate control mechanisms.
The applicants are of the opinion that in their case the legal
limits for telephone tapping have not been respected and that,
moreover, the law itself, as interpreted by the Supreme Court, does not
fulfil the requirements of the "rule of law", as last indicated by the
European Court of Human Rights in the cases of Kruslin and Huvig (Eur.
Court H.R., Kruslin judgment of 24 April 1990, Series A no. 176a; Eur.
Court H.R., Huvig judgment of 24 April 1990, Series A no. 176b). In
particular, when a criminal investigation is carried out against
unknown persons, the Supreme Court allows telephone tapping on a large
scale against the whole circle of persons within which the offenders
may be found. When there is a suspect, he may not have a chance of
complaining successfully about telephone tapping, as his right to
privacy is not considered to be protected. There is no obligation to
put the tapes at the disposal of the judge, and it is unclear for which
offences telephone tapping is permitted. The law provides no rules
about the duration of telephone tapping, and in practice there are no
rules about the records to be kept. The obligation to destroy
transcripts of tapped telephone conversations is incomplete, and
although telephone tapping must be authorised by the Investigating
Judge, this may be done orally, which makes control difficult. The
person whose telephone line is tapped may also be unaware of the fact
that there is a criminal investigation going on against him.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 8 April 1991 and registered on
21 June 1991.
On 20 February 1991, the Commission decided to communicate the
application to the Netherlands Government and to ask for their
observations on its admissibility and merits.
The Government's observations were submitted on 27 May 1992. The
applicants submitted their observations in reply on 1 September 1992.
THE LAW
1. The applicants submit that the cassation procedure before the
Supreme Court exceeded the "reasonable time" requirement as referred
to in Article 6 para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1), insofar as relevant, provides:
"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."
The Government submit that the period to be taken into
onsideration under Article 6 para. 1 (Art. 6-1) lasted slightly less
than 3 years and 7 months. Viewed as a whole, this period cannot be
considered as unreasonable as the case was a complicated one with eight
suspects and a substantial file. For the same reasons, the length of
the procedure before the Supreme Court cannot be considered as
unreasonable. The Government concede that the statutory time-limit of
54 days laid down in Section 433 para. 3 of the Code of Criminal
Procedure for the sending of the documents from the Registry of the
Court of Appeal to the Supreme Court was not respected. However, they
submit that this delay can rarely be observed in practice. This
provision was therefore amended as of 1 May 1992, the fixed limit of
54 days having been replaced by the words "as soon as possible".
The applicants remind that under Section 433 of the Code of
Criminal Procedure, the documents concerning their case should have
been sent to the Supreme Court within a maximum of 54 days from the day
of the decision of the Court of Appeal. In the present case the Court
of Appeal took its decision on 7 October 1988 but the documents
concerning the applicants' case were not received by the Registry of
the Supreme Court until 18 August 1989, i.e. more than ten months
later. They also submit that, as it was presented before the Supreme
Court, their case was no more of a complex nature, but limited to a few
unequivocal juridical questions.
The Commission notes that the period to be taken into
consideration under Article 6 para. 1 (Art. 6-1) began on the day when
the applicants were substantially affected by the proceedings against
them and ended on the day of their final conviction (cf. No. 9132/80,
Dec. 12.12.83, D.R. 41 p. 13). It thus started with the applicants'
arrests on 24 and 25 March 1987 and ended with the Supreme Court's
decision of 16 October 1990, lasting a little less than three years and
seven months.
Having regard to the parties' submissions and the case-law of the
Convention organs, the Commission considers that the complaint
concerning the length of the proceedings, and in particular of the
delay in trasmitting the case-file to the Supreme Court (Eur. Court
H.R., Abdoella judgment of 25 November 1992 to be published in Series
A no. 248-A; J.B. v. the Netherlands, Comm. Rep. 1.4.92, now pending
before the European Court of Human Rights), raises complex issues of
fact and law which can only be resolved by an examination of the
merits. This part of the application cannot therefore be declared
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 first, second, third and fifth applicants also submit that
in the cassation proceedings, the Supreme Court declared that more had
been proved than the Court of Appeal had actually found proved, as a
result of which the applicants were deprived of one level of
jurisdiction and of a "fair hearing" as referred to in Article 6 para.
1 (Art. 6-1) of the Convention. The applicants submit that contrary
to what was said in the Supreme Court's judgment, the Court of Appeal
had never made any finding about the existence of a criminal aim before
the day of the removal of the squatters from the building.
The Commission first recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the parties in the Convention. In
particular, it is not competent to deal with a complaint alleging that
errors of law or fact have been committed by domestic courts, except
where it considers that such errors might have involved a possible
violation of any of the rights and freedoms set out in the Convention.
The Commission refers, on this point, to its constant case-law (see
e.g. No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).
As regards the applicants' complaints about the proceedings
concerned, the Commission first notes that in its judgment of 16
October 1990, the Supreme Court stated that the Court of Appeal had
clearly found that the association was aimed at committing offences not
only on the day of the removal of the squatters but also a considerable
time before that day. In the second place the Commission observes that
the Court of Appeal stated that "the association (was) not only (aimed)
at committing a single crime as part of one single action, but that by
these means (the association has wanted) to pursue the action in favour
of the resistance against the law pertaining to unoccupied buildings,
...".
The Commission observes that the point at issue in connection
with these statements was to ascertain whether the applicants had
created a temporary or a more permanent association. In this respect,
the Supreme Court stated that the Court of Appeal had clearly found
that the association had not been a temporary one.
The Commission considers that, whether or not the applicants'
observation is as such well-founded, the contested statement of the
Supreme Court did not affect the fairness of the proceedings against
the applicants.
Consequently this part of the application is manifestly ill-
founded and must be rejected under Article 27 para. 2 (Art. 27-2) of
the Convention.
3. The first, second, third and fifth applicants also complain of
an infringement of their right to a fair hearing as a result of the use
as evidence of information given to a police inspector by five
anonymous police informers, which information had only been recorded
in general terms in a memorandum of this police officer. They invoke
Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention.
As the Commission has previously pointed out, the relationship
between paragraphs 1 and 3 of Article 6 (Art. 6-3, 6-1) of the
Convention is that of the general to the particular. Paragraph 3 lists
certain specific rights which constitute essential elements of the
general notion of "fair trial" in criminal cases (cf. Jespers v.
Belgium, Comm. Rep. 14.12.1981, para. 54, D.R. 27, pp. 71, 72).
The Government submit that the applicants have not exhausted
domestic remedies as required by Article 26 (Art. 26) of the Convention
in that they never expressed the wish to question these persons or have
them questioned as part of the preliminary judicial investigations or
at the hearing nor did they seem to have any doubts as to the accuracy
of the information which they provided. As to the merits of the
complaint, the Government observe that there was also other important
evidence to support the decisions taken by the Dutch Courts.
The applicants submit that before the Kostovski judgment (Eur.
Court H.R., Kostovski judgment of 20 November 1989, Series A no. 166),
they had absolutely no chance of having the anonymous persons heard as
witnesses before the Dutch courts. They also explain that the reason
why they did not contest the anonymous statements was that they had
chosen to remain silent at the hearing.
The Commission considers that it is not necessary to decide
whether or not the applicants have exhausted the domestic remedies
available to them, since this part of the application is manifestly
ill-founded for the reasons set out below.
The Commission first recalls that the admissibility of evidence
is primarily a matter for regulation by national law and that it is for
the national courts to assess the evidence before them (cf. Kostovski
judgment, loc. cit., p. 19, para. 39). The Commission's task is to
ascertain whether the proceedings considered as a whole, including the
way the evidence was taken, were fair.
The Commission further recalls that, in principle, all the
evidence must be produced in the presence of the accused at a public
hearing with a view to adversarial argument. This does not mean,
however, that in order to be used as evidence statements of witnesses
should always be made at a public hearing in court: to use as evidence
such statements obtained at the pre-trial stage is not in itself
inconsistent with paragraphs 3 (d) and 1 of Article 6 (Art. 6-1, 6-3-d)
of the Convention, provided that the rights of the defence have been
respected.
As a general rule these rights require that an accused should be
given an adequate and proper opportunity to challenge and question a
witness against him, either at the time the witness was making his
statement or at some later stage of the proceedings (cf. Kostovski
judgment, loc. cit., p. 20, para. 41 with further reference).
The Commission first observes that as a result of the applicants'
appeal a full review of the facts and the evidence took place before
the Court of Appeal. It is however difficult to assess the importance
of the statements made to the police inspector by the five anonymous
persons since the reasoning of the Court of Appeal in its judgment is
brief and stereotyped and does not refer to the various pieces of
evidence invoked in the case. It is clear, however, that there was
also a great deal of other evidence in the case.
The Commission further notes that the applicants, who were
represented by a lawyer during the respective proceedings against them,
had the opportunity to state their case and to challenge the statements
by the anonymous informers and the other evidence against them of which
possibility the applicants chose not to avail themselves. The
Commission also attaches weight to the fact that the applicants have
not even in their submissions to the Commission specified in what way
they disagree with the statements made by the anonymous persons to the
police inspector.
The Commission therefore considers that in the present
circumstances there is no indication that the rights of the defence
were restricted to such an extent that it constituted a breach of
paragraphs 1 and 3 (d) of Article 6 (Art. 6-1+6-3-d) taken together.
It follows that this part of the application is manifestly ill-
founded and must be rejected under Article 27 para. 2 (Art. 27-2) of
the Convention.
4. Invoking Articles 7 and 6 para. 2 (Art. 6-2, 7) of the
Convention, the first, second, third and fifth applicants also submit
that the principle of legality was violated in that they were
prosecuted and convicted in respect of "participation in a legal person
whose aim is the commission of offences", this being a too vague
definition the scope and application of which could not be foreseen.
Article 7 (Art. 7) of the Convention provides as follows:
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the
time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the
criminal offence was committed.
2. This Article shall not prejudice the trial and
punishment of any person for any act or omission which, at
the time when it was committed, was criminal according to
the general principles of law recognised by civilised
nations."
Article 6 para. 2 (Art. 6-2) of the Convention provides:
"2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law."
The Commission notes that the crucial point of the present
complaint is one of the foreseeability of the law and the function of
the courts in clarifying or developing vague legal provisions.
The Commission recalls that the European Court has stated that
"a norm cannot be regarded as 'law' unless it is formulated with
sufficient precision to enable the citizen to regulate his conduct: he
must be able - if need be with appropriate advice - to foresee, to a
degree that is reasonable in the circumstances, the consequences which
a given action may entail. Those consequences need not be foreseeable
with absolute certainty: experience shows this to be unattainable.
Again, whilst certainty is highly desirable, it may bring in its train
excessive rigidity and the law must be able to keep pace with changing
circumstances. Accordingly, many laws are inevitably couched in terms
which, to a greater or lesser extent, are vague and whose
interpretation and application are questions of practice" (Eur. Court
H.R., Sunday Times judgment of 26 April 1979, Series A No. 30, p. 31,
para. 49). The Commission has also considered that the mere fact that
a legislative provision may give rise to problems of interpretation
does not mean, that it is so vague and imprecise as to lack the quality
of "law" in this sense (Nos. 11553/85 and 11658/85, Dec. 9.3.87, D.R.
51 p. 136 with further references).
Applying these principles to the present case, the Commission is
of the opinion that the contested provision (Section 140 of the Penal
Code) is sufficiently precise for individuals to be able to regulate
their conduct. It also notes that the facts the applicants were
charged with objectively correspond to the definition of the offence
and that the courts have not exceeded the limits of a reasonable
interpretation of this provision.
The Commission also considers that there is no indication of a
violation of the principle of presumption of innocence as guaranteed
in Article 6 para. 2 (Art. 6-2) of the Convention.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
5. Invoking Article 8 (Art. 8) of the Convention the applicants also
complain that without their consent, the police used in their
investigations a book containing their photographs. They submit that
this was an interference with their right to respect for their private
life which was not "in accordance with the law" as required by
paragraph 2 of this provision.
Article 8 (Art. 8) of the Convention provides as follows:
"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 such 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 Government submit that the photographs were requested and
made available in accordance with a circular issued by the Minister of
Foreign Affairs on 26 February 1986 and with an existing practice based
on Section 120, subsection 2 (old) of the Road Traffic Regulation
(Wegenverkeerswet). They were shown only to witnesses who stated they
recognised persons who might have been involved in the offences in
order to identify suspects. The Government point out that any criminal
investigation inevitably entails an intrusion upon privacy for
potential suspects and that the investigation concerned serious
offences committed by a large number of suspects.
The applicants allege that there is no legal basis for using such
photographs in a subsequent criminal investigation. They are of the
opinion that the circular of 26 February 1986 cannot be considered as
a "law" within the meaning of Article 8 para. 2 (Art. 8-2) of the
Convention.
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 applicants' privacy;
secondly that the photographs were kept in police or other official
archives since they had been either provided voluntarily in connection
with applications for a passport or a driving licence or taken by the
police in connection with a previous arrest; and thirdly that they were
used solely for the purpose of the identification of the offenders in
the criminal proceedings against the applicants and there is no
suggestion that they have been made available to the general public or
used for any other purpose. Bearing these facts in mind, the
Commission finds that the use of the photographs of the applicants
could not be considered to amount to an interference with their private
life within the meaning of Article 8 (Art. 8) of the Convention (cf.
mutatis mutandis No. 5877/72, Dec. 12.10.73, Yearbook 16 p. 328).
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.
6. The applicants finally complain of a violation of their right to
respect for their private life and their correspondance in that
telephone tapping was performed in regard to at least eight telephone
lines while they all participated in conversations on one or more of
these telephone lines. They stress that this interference took place
without any justification under Article 8 para. 2 (Art. 8-2) of the
Convention.
The Government are of the opinion that the tapping of the
applicants' telephone conversations, insofar as it affected the
applicants, was a measure which was in accordance with the law, since
it was in accordance with Sections 125g-h of the Code of Criminal
Procedure and was effected with the required authorisation of the
Investigation Judge. It was also necessary in a democratic society for
the prevention of disorder or crime, since the investigation concerned
serious criminal offences which constituted a serious violation of the
legal order and which, it was suspected, had been committed by a group
of people who were difficult to identify.
The Government explain that the telephone tapping was part of
preliminary judicial investigations which had been ordered by the
Investigating Judge, as is compulsory for such measures under the
provisions of the Code of Criminal Procedure. Tapping took place only
after actual offences had been committed for which pre-trial detention
is permitted (a condition laid down in Section 125g of the Code of
Criminal Procedure) and which could be deemed to be serious violations
of the legal order. According to police information, the suspects were
to be found amongst the group of squatters in Nijmegen. The
preliminary judicial investigations started on 14 January 1987 as the
result of an act of arson (at the town hall), and following a second
act of arson (at Nijmegen police station) were extended on 2 February
1987. Arson is a criminal offence under Section 157 of the Penal Code
and is an offence for which pre-trial detention may be ordered. During
the police investigation it appeared that, because the offenders had
acted as a group, it was extremely difficult to establish to which
degree each person had participated in the offences. It was then
decided to base the investigation on Section 140 of the Penal Code
(participation in a legal person whose objective is to commit criminal
offences). On 19 March 1987, another application for preliminary
judicial investigations was made, which contained the names of the
suspects, including those of the applicants, in accordance with Section
182 of the Code of Criminal Procedure.
The Government further state that since the case involved a group
of suspects residing in several different municipalities, it was
unavoidable that tapping would affect a large number of people and that
a great deal of information would thus be obtained. However, tapping
is subject to a statutory safeguard: the Investigating Judge assesses
the relevance to the investigation of the material obtained and orders
all "superfluous" information to be destroyed as soon as possible,
pursuant to Section 125h of the Code of Criminal Procedure, and a
procès-verbal of the destruction of the material is drawn up.
Permission to tap telephones may be given orally or in writing by the
Investigating Judge. Since the need to put a tap on a telephone is
often an urgent one, the Government did not impose far-reaching,
binding requirements for authorisation to tap when drafting the
legislation. Verbal permission has been sufficient according to
rulings by the Supreme Court. However, it must be included in
substance in the official report of the preliminary judicial
investigation.
The Government finally submit that in the present case all
telephone tapping took place with the authorisation of the
Investigating Judge. The applicants claim that permission to tap
telephone conversations was given retroactively. They draw this
conclusion from the fact that the permission and subsequent extensions
were given as from midnight. If the decisions were indeed not given
at that time (which is now impossible to ascertain), this does not mean
that the tapping also began at that time. Furthermore, the information
thus obtained was not used as evidence, nor did the applicants argue
in their defence in first instance that as a result of the telephone
tapping they made statements which they would otherwise not have made.
The applicants first state that when a criminal investigation is
carried out against unknown persons, the Supreme Court allows telephone
tapping on a large scale against the whole circle of persons within
which the offenders may be found. When there is a suspect, he cannot
successfully complain of the telephone tapping, since the Supreme Court
considers that the law is only concerned with the protection of the
privacy of persons other than the suspect. They also submit that
although the law provides that telephone tapping can only occur in
respect of offences for which detention on remand is permissible, it
is possible that the result of the telephone tapping is used as
evidence of other offences or against other offenders.
They also claim that the law does not specify the duration of the
telephone tapping. According to certain guidelines, the maximum
duration should be four weeks, but prolongations beyond that time are
common. In the present case, the telephone tapping lasted, in respect
of some telephone lines, for one and a half month.
They further submit that in practice there are no rules about the
records to be kept. It is true that the law speaks about certain
records, but they do not have to contain the contents of the tapped
telephone conversations. The obligation to destroy transcripts of
tapped telephone conversations is incomplete and ineffective.
Conversations may be invoked as evidence even after the tapes
containing these conversations have been destroyed. In the present
case records were made of some conversations which the police found
useful as evidence. The applicants do not know whether other
conversations were also recorded. In addition, there is no obligation
to make the tapes available to the court or the defence. In the
present case the defence was refused access to large parts of the
records containing the tapped telephone conversations. Furthermore,
the obligation to destroy records of telephone conversations only
concerns those facts which are considered not to be relevant to the
case. Consequently, there is no protection of privacy in regard to
conversations which are considered to be of relevance. In the present
case the Court ordered the destruction of such tapped facts as had not
been used in the investigation. It is unclear whether destruction has
in fact taken place. It is likely that other tapped conversations are
being preserved.
The applicants further complain that the Supreme Court has
accepted that an order for telephone tapping may be issued orally by
the judge and that, if the order exists in writing, it does not have
to be included in the case-file. This makes control difficult.
They finally note that the person whose telephone is tapped may
also be unaware of the fact that there is a criminal investigation
going on against him. In the present case the applicants were
informed, a short time after their arrest, that there was a criminal
investigation against them. In any event the tapping of eight
telephones during a long period was not necessary in a democratic
society for any of the aims indicated in Article 8 para. 2
(Art. 8-2) of the Convention.
The Commission recalls that according to the case-law of the
Convention organs, telephone communications are covered by the notion
of "private life" and "correspondance" within the meaning of Article
8 para. 1 (Art. 8-1) of the Convention (Eur. Court H.R., Huvig judgment
of 24 April 1990, Series A no. 176b, p. 52, para. 25; No. 10862/84,
Dec. 6.3.86, D.R. 46 pp. 136-137). Accordingly, the applicants may
rely on the right guaranteed by this provision. Interference with the
exercise of such rights is only permissible when done by a public
authority and if it is in accordance with the law and necessary in a
democratic society for one of the purposes listed in Article 8 para.
2 (Art. 8-2).
The Commission notes that the telephone tapping in the present
case was authorised by a judge and took place in accordance with
Sections 125f-h of the Code of Criminal Procedure. It also considers
these provisions to be sufficiently precise and that, consequently, the
tapping was in accordance with the law within the meaning of Article
8 (Art. 8) of the Convention.
The Commission further notes that the applicants' complaints
concerning the telephone tapping are mostly directed at the law and the
way it is applied in Dutch case-law. The Commission first observes
that it cannot examine in the abstract questions of the conformity of
domestic law with the Convention. Insofar as the telephone tapping in
the present case concerned the five applicants, the Commission is of
the opinion that it could be considered necessary in a democratic
society for the prevention of disorder or crime.
The Commission considers that the telephone tapping was therefore
justified under Article 8 para. 2 (Art. 8-2) of the Convention.
It follows that this complaint is manifestly ill-founded and must
be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority
DECLARES ADMISSIBLE, without prejudging the merits of the
case, the applicants' complaint concerning the length of
the criminal proceedings against them,
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. Krüger) (C.A. Nørgaard)