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AS TO THE ADMISSIBILITY OF

Application Nos. 17631/91 & 17632/91

by J.O. and T.T.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 September 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second 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 11 October 1990

by J.O. and T.T. against the Netherlands and registered on 9 January

1991 under file Nos. 17631/91 and 17632/91;

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 applicants are an unmarried cohabiting couple, who are both

Dutch nationals, born in 1957 and 1964 respectively, and residing in

Amsterdam, the Netherlands. The applicants are unemployed. Before the

Commission the applicants are represented by G. Spong, a lawyer

practising in The Hague.

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

summarised as follows.

In two separate judgments of 11 November 1987, the Regional Court

(Arrondissementsrechtbank) of Amsterdam convicted and sentenced each

of the applicants for inveiglement and trade in women for prostitution

purposes.

The Regional Court based the convictions on the statements made

by three identified victims before the police and the investigating

judge, a police report drawn up by a police officer who entered the

applicants' home during the preliminary investigation and a statement

by an anonymous person contained in a police report. The anonymous

person had informed the police that in the course of his daily visits

to a certain alley in Amsterdam he had noticed, as from

August/September 1986, an oriental looking girl sitting behind one of

the windows, that she had made a sad impression, and that according to

a friend, a blond young man had visited the girl every couple of hours.

The police subsequently confronted him with one of the victims, whom

he identified as being the girl he had seen behind the window.

On 25 October 1988 and 23 December 1988 respectively the Court

of Appeal (Gerechtshof) of Amsterdam quashed the judgments by the

Regional Court as it found, after a new examination of the facts and

evidence, that it had not been established that the applicants had

inveigled the women to follow them to the Netherlands. The Court of

Appeal subsequently convicted and sentenced the applicants for trade

in women for prostitution purposes.

The Court based this conviction on the statements by the three

victims, the police report and the statement by the anonymous informer.

The Court stated in its judgment that it had only made a cautious use

of the statement by the anonymous witness.

The applicants' subsequent appeals to the Supreme Court (Hoge

Raad) were rejected on 2 July 1990. On the applicants' complaint

concerning the use of a statement by an anonymous witness as evidence,

the Supreme Court held, inter alia, that the applicants, who were

represented by a lawyer before the Regional Court and the Court of

Appeal, had at no point in time during the proceedings against them

stated the wish that this witness be examined, that the respective

convictions were for an important part based on evidence from

identified sources and that the Court of Appeal had explicitly stated

in its judgment that it had used the anonymous declaration in a

cautious way.

COMPLAINTS

The applicants complain that the Supreme Court in its judgments

of 2 July 1990 disregarded the principle that an anonymous witness,

whose declaration is used in evidence by a court, must be heard in

person by that court in order to establish the reliability of the

witness. The applicants submit that the principle of a fair trial

implies that the defence should be able to question a witness directly,

and in case an accused does not express the wish to question such a

witness, he must be able to rely on the fact that a judge himself

verifies the reliability of witnesses. The applicants invoke Article

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

THE LAW

The applicants complain under Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d) that they did not receive a fair trial in the

criminal proceedings against them, as the statement of an anonymous

witness before the police was used as evidence, whereas the courts

failed to establish the reliability of that witness as that witness was

not heard by the courts.

Article 6 paras. 1 and 3 (d) (art. 6-1, 6-3-d), insofar as

relevant, provides as follows:

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

against him, everyone is entitled to a fair and public

hearing (...) by a (...) 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 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. Eur. Court

H.R., Kostovski judgment of 20 November 1989, Series A no. 166, 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 the rights of the defence have been

respected.

As a 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., para. 41 with further reference).

The Commission notes that the applicants have never submitted a

request to the courts dealing with their case that the anonymous

witness be examined by the courts.

The Commission, therefore, considers that under these

circumstances no issue arises under Article 6 para. 3 (d) (art. 6-3-d)

of the Convention.

As the guarantees in para. 3 of Article 6 (art. 6-3) of the

Convention are specific aspects of the rights to a fair trial set forth

in para. 1, it remains for the Commission to consider whether,

nevertheless, the applicants did not receive a fair trial within the

meaning of Article 6 para. 1 (art. 6-1) of the Convention.

The Commission observes that as a result of the applicants'

appeals a full review of the facts and evidence took place before the

Court of Appeal. The Commission notes that the applicants were

convicted on the basis of four statements by identified persons and one

statement of an anonymous person who had made a declaration before the

police.

The Commission further notes that the applicants, who were both

represented by a lawyer during the respective proceedings against them,

had the opportunity to state their case and to challenge the statement

by the anonymous informer and the other evidence against them of which

possibility the applicants chose not to avail themselves and that the

Court of Appeal explicitly stated that the statement by the anonymous

person was used in a cautious manner.

The Commission, therefore, considers that in the present

circumstances there is no indication that the applicants, in this or

any other respect, did not receive a fair hearing in the determination

of the criminal charges against them within the meaning of Article 6

para. 1 (art. 6-1) of the Convention.

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,

1. DECIDES TO JOIN THE APPLICATIONS,

2. by a majority, DECLARES THE APPLICATIONS INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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O. AND T. v. THE NETHERLANDS

O. AND T. v. THE NETHERLANDS

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