Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11454/85

by Slobodan KOSTOVSKI

against the Netherlands

The European Commission of Human Rights sitting in private on

3 December 1986, the following members being present:

MM. C. A. NØRGAARD, President

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. J. RAYMOND, Deputy 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 18 March 1985

by Slobodan KOSTOVSKI against the Netherlands and registered on 20

March 1985 under file No. 11454/85;

Having regard to

- the Commission's decision of 2 December 1985 to bring the

application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government on

25 February 1986 and the observations in reply submitted by

the applicant on 4 July 1986;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the application, as they have been submitted by

the parties, may be summarised as follows.

The applicant is a Yugoslav citizen, born in 1953. At present,

he is detained in prison at The Hague, the Netherlands. In the

proceedings before the Commission, he is represented by Mrs. T.

Spronken, a lawyer practising at Maastricht.

It appears that in August 1981, the applicant escaped from

prison at The Hague where he was serving a prison sentence having been

convicted by the Regional Court (Arrondissementsrechtbank) of Amsterdam

on 4 June 1980.

On 1 April 1982, the applicant was arrested on suspicion of

having participated in an armed bank robbery on 20 January 1982.

The applicant denied, and denies, the charges brought against

him, but on 24 September 1982, the Regional Court (Arrondissements-

rechtbank) of Utrecht convicted the applicant and sentenced him to six

years' imprisonment. The decisive evidence against the applicant

consisted of statements by two witnesses who wanted to remain anonymous

for fear of reprisals. One witness was only heard by the police, the

second witness also by both the investigating judge

(Rechter-Commissaris) and his deputy.

According to the investigating judge, he only heard one of the

two anonymous witnesses presented to him by the police because he could

not guarantee the other's anonymity. He did not identify the witness

heard by him, but considered his fears to be well-founded, e.g. because

of the fire-arms (including sub-machine-guns) found with the applicant

and his co-accused, and because of his knowledge of a police report on

the matter and of the dangerous nature of the applicant.

The court further took into account the fact that the applicant

had previously been convicted for a similar offence.

The court noted that it could not examine the reasons for the

witnesses' statements, and that it could not itself assess the

witnesses' reliability. However, the court considered that these

statements could be admitted as evidence since they were complementary

and mutually consistent. Furthermore, since one of the witnesses had

been considered to be very reliable by the police officer, reliable by

the investigating judge and not unreliable by his deputy, the court had

come to the conclusion that the applicant had in fact committed the

offence he was charged with.

The applicant, thereupon, appealed to the Court of Appeal

(Gerechtshof) of Amsterdam, which quashed the decision of the Regional

Court on 27 May 1983 since it found that certain additional criminal

offences were also proven.

The Court of Appeal also sentenced the applicant to six years'

imprisonment. The court considered that the statements of two

anonymous witnesses could be admitted as evidence, in view of the

submissions during the hearing by both the investigating judge and a

senior police officer that the witnesses concerned had cause to fear

reprisals, had made their statements out of their own initiative and

had made a reliable, respectively reasonably reliable, impression on

these officials. In this respect, the court also took into account the

mutual connection between the witnesses' statements.

The court further took into account the fact that the applicant

had already been sentenced to a long prison-term for similar offences.

Subsequently, the applicant appealed to the Supreme Court (Hoge

Raad).

The applicant, whilst invoking, inter alia, Article 6 of the

Convention, claimed that the investigating judges had not ascertained

the identity of the witnesses and that nearly all questions put forward

by the defence during the hearing with a view to clarifying the

reliability of the witnesses as well as their source of information had

been prevented by the court, in order to safeguard the anonymity of the

witnesses.

However, the Supreme Court rejected the applicant's appeal on

25 September 1984. The Court held, inter alia, that the Court of

Appeal had properly accounted for the fact that it had taken the

statements of the anonymous witnesses into account. It considered,

furthermore, that the invoked provision of the Convention which, in

general, ensured the equal treatment of defence and prosecution, did

not prevent the Court of Appeal from applying certain restrictions on

the rights contained therein, if this was considered necessary in the

interest of the trial.

In his conclusion, the Attorney-General (Procureur-Generaal)

considered that "...the entire situation, in particular in the light

of Article 6 para. 3 (d) of the Convention, must soon lead to further

reflection and the laying down of rights and obligations, as otherwise

the confidence in the administration of justice will be seriously

shaken."

COMPLAINTS

The applicant contends that during the criminal proceedings

against him, the principle of equality of arms was violated, since

witnesses against him were heard whilst neither he nor his lawyer were

given the opportunity either to be present during this hearing or to

have questions put to these witnesses.

The applicant further submits that the prosecution knew the

identity and other circumstances of the witnesses, and was able to

examine them and enquire after their source of information, but that

he could not obtain any information on this. The applicant claims that

he was not given the opportunity to examine the contents of the

witnesses' statements and that he was, therefore, unable to challenge

them.

The applicant invokes Article 6 paras. 1 and 3 (d) of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 March 1985 and registered

on 20 March 1985.

On 2 December 1985, the Commission decided to invite the

respondent Government, pursuant to Rule 42 para. 2 b) of its Rules of

Procedure, to submit written observations on admissibility and merits

before 14 March 1986. The Government's observations were submitted on

25 February 1986.

On 14 March 1986 the Commission decided to grant the applicant

legal aid.

The applicant was invited to submit observations in reply

before 12 May 1986. At the request of the applicant, the President

extended the time limit initially until 9 June 1986, and subsequently

to 7 July 1986. The applicant's observations were submitted on 4 July

1986.SUBMISSIONS OF THE PARTIES

A. The Government

I. Article 6 paras. 1 and 3 (d)

a. The complaint that neither the applicant nor his counsel were

given the opportunity to have questions put to the witnesses has no

factual basis.

In a letter of 2 June 1982 the investigating judge forwarded

the applicant's lawyer a photocopy of the official report of the

examination of an anonymous witness and gave the lawyer the opportunity

to submit questions which the investigating judge could then put to the

witness. In a letter dated 14 June 1982 the applicant's lawyer sent

the investigating judge a list of 14 questions. The investigating

judge then re-examined the witness on 22 June 1982. On this occasion

some of the questions were put to the witness and an answer given.

With regard to the remaining questions the investigating judge stated

as follows:

"The questions submitted, ... which remained unanswered, were

in view of the necessity to safeguard the anonymity of the witness

either not put by me, the investigating judge, or not answered by the

witness for the same reason."

b. The applicant's allegation that the prosecution was able to

examine the witnesses and enquire after their source of information is

unfounded since there is nothing to show that this actually happened.

Instead, it must be assumed that with regard to the anonymous witnesses

the prosecution had access to the same information as the defence, viz.

the statements included in the documents in the file. In any case, the

prosecution was not present at the examination of the anonymous

witness; the same applies to the suspect's lawyers. In this respect

it may be said that the prosecution and the applicant were accorded

equal treatment in terms of their procedural position.

c. The complaint by the applicant that he was not given the

opportunity to apprise himself of the exact contents of the statements

of the anonymous witnesses should also be rejected since the contents

of these statements were used for no other purpose than their inclusion

in an official report. The defence was permitted access to the reports

in question.

II. Considerations with regard to views on anonymous witnesses

in the Netherlands

Cases of witnesses wishing to prevent a suspect learning their

identity or that of a third party for fear of reprisals or other risks

to themselves or such third parties or their immediate environment are

relatively new in the Netherlands. Such cases appear to be related to

recent developments with regard to crime, which is becoming more

violent, more aggressive and more "organised" (sometimes even at the

international level).

The present Code of Criminal Procedure is not equipped to deal

with this new situation. Cases do occur in which suspects influence

the course of justice by threatening witnesses. Despite the principle

of procedural equality between the prosecution and the suspect a

situation can therefore arise in which the balance is tilted in favour

of the suspect. This means in practice that considerable ingenuity is

sometimes required to ensure observance of the principle of equality

between the prosecution and the defence while remaining within the

bounds of the procedural rules. The judiciary attempts to restore the

balance as far as possible by allowing, under certain circumstances,

the use of statements by anonymous witnesses as evidence. In the

course of time the courts have imposed various conditions on the

admissibility of anonymous statements. The Supreme Court of the

Netherlands has indicated in a number of judgments that extreme caution

should be used in assessing the worth of such statements as evidence

(see, inter alia, the Supreme Court judgment of 4 May 1981, Dutch

Jurisprudence 1982, 268).

In its judgment of 17 March 1981 (Dutch Jurisprudence 1981,

382) the Supreme Court ruled that police officers called to give

evidence in respect of anonymous witnesses known to them may not be

exempted from giving evidence. It is therefore up to the judge to

apply, if necessary, Section 288 of the Code of Criminal Procedure by

ordering that questions which would reveal the identity of an anonymous

witness are not answered.

In a number of judgments handed down on 25 September 1984

(including the one in question), the Supreme Court defined even more

explicitly the obligation to indicate sufficient grounds for the use

of anonymous statements as evidence in cases where the reliability of

such statements is called in question by or on behalf of the suspect

at the trial. The judge must then give special reasons to justify his

subsequent admission of such statements as evidence.

In the case in question the Supreme Court ruled that the judge

had adduced sufficient reasons for his actions and, partly for this

reason, upheld the decision of the court of appeal, while in another

judgment handed down on the same day (Supreme Court, 25 September 1985,

427) it quashed a decision of the same appeal court on the ground that

the reasons given for admitting anonymous statements as evidence were

inadequate.

The problem of anonymous witnesses is recognised by the

authorities. On 20 September 1984 the Minister of Justice instituted

an external advisory committee with the following mandate. First, to

investigate, in the light of a preliminary study carried out by the

Netherlands Judicial Association (Nederlandse Vereniging voor

Rechtspraak), the position in criminal proceedings of a witness who

refuses to make a statement or is prepared to do so only if he receives

assurances that his anonymity will be guaranteed, because he fears to

reveal his own identity or that of another person to the suspect or

persons connected with the suspect. Second, to advise whether, in the

light of its findings, it would be desirable to supplement or amend the

Code of Criminal Procedure with regard to this question and, if so, to

make proposals thereon.

III. Outline of the relevant rules of evidence under Dutch law

a. What constitutes evidence is laid down in Section 339 of the

Code of Criminal Procedure:

i) the judge's own observation;

ii) statements made by the suspect;

iii) statements made by a witness;

iv) statements made by an expert;

v) written documents.

b. Section 342 para. 2 of the Code of Criminal Procedure contains

the "unus testis nullus testis" rule. Additional evidence is therefore

required to corroborate the statement of a single witness.

c. Since 1926 a body of case law has been built up admitting

hearsay evidence (Supreme Court, 20 December 1927, Dutch Jurisprudence

1927, 85). In this judgment the Supreme Court ruled, inter alia, that

neither a literal nor a systematic inter- pretation of the law should

lead to the exclusion of hearsay evidence; this would be contrary to

the spirit of the (new) Code of Criminal Procedure.

d. A deposition sworn in the presence of the investigating judge

is deemed under Section 295 of the Code of Criminal Procedure to be a

statement made by a witness at the trial. In general witnesses are not

examined under oath by the investigating judge. A sworn deposition is

taken only if the investigating judge considers it unlikely that a

witness will be able to appear at the trial (Section 216 para. 1, of

the Code of Criminal Procedure).

e. A deposition made by a witness to the police and set out in an

official report is deemed to be a written document within the meaning

of the Code (Section 344 para. 1 (ii), Code of Criminal Procedure).

These rules clearly indicate that the Dutch law of criminal

procedure is not governed by the principle of immediacy. This is

confirmed by case law.

In the present case therefore the evidence consisted of a

statement by a witness and a written document.

IV. Why the courts did not hear the witnesses in the absence of the

applicant himself but in the presence of his counsel

a. In the Dutch view a suspect's counsel is in principle not his

proxy in judicial proceedings. This means that in the absence of a

suspect his counsel may not act for him in court proceedings, except

in cases before the District Courts (kantongerechten) involving

non-indictable offences, and, at the discretion of the court, in cases

involving less serious indictable offences (not punishable by a prison

sentence) before the Regional Courts as referred to in the Code of

Criminal Procedure (Sections 270 and 398 (ii)). This is confirmed by

rulings by the Supreme Court, including: Supreme Court 23 November

1971, Dutch Jurisprudence 1973, 293 and Supreme Court 26 February 1980,

Dutch Jurisprudence 1980, 246.

In the latter decision the Supreme Court ruled that the

guarantees laid down in Article 6 para. 3 (c) of the European

Convention on Human Rights and Article 14 para. 3 (b) of the

International Covenant on Civil and Political Rights mean that counsel

should be allowed to appear and act in that capacity if, according to

the court, there are cogent reasons which prevent the suspect from

appearing in court and the court finds no grounds for suspending

proceedings.

In the case in question there were no cogent reasons why the

suspect could not appear in court.

b. The Code of Criminal Procedure cites only three cases in which

a suspect may be removed from the court and where his counsel may

remain. These are:

1. Section 304: dealing with questions relating to the mental

state of the suspect;

2. Section 303: if the suspect refuses to remain silent or

disturbs the conduct of the hearing;

3. Section 292, where a witness is examined in the absence of

para. 1: the suspect.

The last-mentioned section offers no solution to the problem

of the anonymous witness, since the suspect still has, under Section

285 para. 1, to be given the opportunity of putting questions to the

witness at a later stage. In the view of authoritative writers on the

subject (Duisterwinkel/Melai) "the suspect's own right to examine the

witness (under Section 285 para. 1) may not be curtailed by the

application of Section 292. Nor is the situation altered by the fact

that the suspect's counsel remain in court and may question the

witness." This view finds general acceptance.

Failure to conform to the above results in the testimony being

null and void (Section 292 para. 2).

c. A solution to this problem is sought in hearing witnesses

anonymously at the stage of the preliminary judicial investigation. In

this event Section 216 of the Code of Criminal Procedure is applied.

This investigating judge hears sworn testimony from a witness whom he

assumes will be unable to appear in court. It is accepted that this

is the case when a witness fears reprisals. Under Section 295 of the

Code the deposition of such a witness is deemed to be a statement made

at the trial.

Section 187 of the Code of Criminal Procedure is a rule of

procedure which governs the conduct of the preliminary judicial

investigation. This section provides that if the investigating judge

deems that there is good reason to assume that the witness will be

unable to appear in court, he shall invite the public prosecutor and

the suspect and his counsel to attend the examination of the witness,

unless the examination has to be carried out without delay in the

interest of the investigation.

This rule is not adhered to in practice in the case of the

anonymous witness who fears reprisals. By ruling in its judgment of

4 May 1981 (Dutch Jurisprudence 1982, 268) that failure to apply this

rule did not render the testimony inadmissible, the Supreme Court in

fact sanctioned this practice. However, the suspect's counsel (and the

prosecution) must be given an opportunity to comment on the official

report of the hearing and if they so desire submit additional questions

in writing.

It follows implicitly from the principle of equality of arms

for prosecution and defence that if the suspect's counsel is not

invited to attend the hearing the public prosecutor should not attend

either. This practice was followed in the present case.

d. In addition to the statutory difficulties, outlined above,

associated with temporarily removing the suspect from the court and

having his counsel represent him during this period, the following is

also of relevance.

The Dutch bar, in particular those lawyers who concentrate

primarily on criminal cases, is of the opinion that the relationship

of trust between the defence lawyer and his client demands that the

former should not be placed in a position during judicial proceedings

in which he acquires knowledge which he must keep secret from his

client. Since this position seems eminently reasonable, no attempt has

been made in the Netherlands to solve the problem of anonymous

witnesses by allowing the suspect's counsel to learn the identity (or

to have a description of his appearance) of the witness if the suspect

may not also have this knowledge.

The Netherlands Government is of the opinion that the

application is manifestly ill-founded.

B. The applicant

Article 6

The applicant recalls that he complained that the defence was

not, or at least not sufficiently, able to challenge the statements

against him by the anonymous witnesses. Although the investigating

judge gave the applicant the possibility to put questions to the

anonymous witnesses, only one of these questions was in fact put to

this witness by the investigating judge. Similarly, during the

hearings of the police officers and the investigating judges by both

the regional court and the court of appeal, replies to virtually all

questions were prevented. The applicant therefore submits that no real

possibility existed in the present case to put questions to the

witnesses, this apart from the question whether the submission of

written questions to the investigating judge meets the requirements of

a fair trial under Article 6 of the Convention.

In this respect, the applicant notes that written questions do

not contain the element of surprise which may be highly important in

bringing out the truth. Furthermore, the defence cannot assess the

veracity of the witnesses' statements, for instance by visiting the

place where something was supposed to have been witnessed. In

addition, the absence of direct confrontation leads to a situation in

which the witness is more easily tempted not to tell the entire truth.

The Government denies that the public prosecutor was able to

hear the anonymous witnesses and to assess the veracity of their

declarations. However, the applicant submits that the public

prosecutor possesses all the information the police has concerning

anonymous witnesses, as the public prosecutor is the hierarchical

superior of the police, and is in charge of the investigations. In

view of this situation it cannot be maintained that the public

prosecutor has, or can obtain, the same information as the defence. The

applicant refers to the report by the External Advisory Committee

referred to by the Government, which published its report on 11 June

1986. In the present case the public prosecutor did not attend the

hearing of the anonymous witness by the investigating judge, but had

no direct interest in doing so since he already possessed all

information. The applicant submits that if the prosecution wishes to

use a statement against the accused made out of court, it can be said

that the prosecution has already examined this witness. On the basis

of Article 6 para. 3 of the Convention this should result in the

defence being able to hear this witness. The hierarchical relationship

between police and public prosecutor guarantees that the public

prosecutor, at an early stage, can order the hearing of certain

witnesses against the accused and have their statements at his

disposal.

In reply to the submission of the Government that the defence

was able to examine the procès-verbal containing the statement of the

anonymous witnesses, the applicant submits that this procès-verbal does

not contain an exact reproduction of the witnesses' statements, since

the latter's anonymity must be guaranteed, whereas it is of supreme

importance for the defence to have access to the exact statement.

The applicant contests the Government's view that the Dutch

Code of Criminal Procedure is not based on the principle of immediacy,

although he admits that certain exceptions to this principle are in

fact made.

Development of case-law and opinion concerning anonymous

witnesses in the Netherlands

The applicant refers to the decision of the Supreme Court of

4 May 1981 (Dutch Jurisprudence 1982, 268) in which it was decided that

statements by anonymous persons may, with proper care, be used as

evidence. It further appears from later case law, that the defence

must be given the possibility to submit questions, and that the judge

must account for the use of an anonymous statement if the contents

thereof are challenged. Moreover, on 12 November 1985 (Dutch

Jurisprudence 1986, 409), the Supreme Court explicitly decided that a

conviction entirely on the basis of statements by anonymous witnesses

was compatible with Article 6 of the Convention.

The applicant refers to the opinion of certain writers on the

above cited case law.

The presence of counsel during the examination of an anonymous

witness

The applicant contests the Government's view that the hearing

of an anonymous witness in the absence of the accused but in the

presence of the latter's lawyer would be incompatible with the Dutch

legal system. Although the External Advisory Committee in its report

of 11 June 1986 advised against such a solution, the applicant claims

that there is a difference of opinion within the Dutch bar association

on this matter.

The applicant submits that in case a decision is taken to hear

anonymous witnesses, the interests of the defence are better served if

counsel can be present than when such an examination is to take place

in the absence of both the accused and counsel.

The External Advisory Commission has proposed to declare the

statements of anonymous witnesses in principle inadmissible.

However, exceptionally, a witness may be heard in the absence

of the applicant and his lawyer by the investigating judge, against

which decision an appeal may be lodged with the regional court. In his

dissenting opinion a member of the committee drew attention to the fact

that procedural guarantees assisted a judge in being cautious, and that

the elimination of direct confrontation between the accused and the

witness against him also eliminated one of the most important

incentives to judicial cautiousness.

It appears from the Commission's case law, that the use of

anonymous witnesses may be permissible under certain circumstances, but

that this may not be the sole evidence. Moreover, the Commission has

accepted that there may be particular circumstances to hear a witness

in the absence of the accused. However, in that case the witness was

heard in the presence of the accused's counsel, who was given the

possibility to put questions.

In the present case, additional evidence consisted of the

hearsay evidence of the investigating judge and the police. However,

these only repeated what others had told them.

The applicant submits that it is incompatible with Article 6

of the Convention that an accused is convicted exclusively on the basis

of statements by anonymous witnesses, or the hearsay evidence of the

police or investigating judge with regard to these anonymous witnesses,

as happened in the present case.

THE LAW

The applicant has complained that he was not given the

possibility to put questions to witnesses who were heard in the

criminal proceedings against him, and he has invoked Article 6 paras.

1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention in this respect.

Article 6 para. 1 (Art. 6-1) provides, inter alia:

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

him ... everyone is entitled to a fair and public hearing

..."

Article 6 para. 3 (d) (Art. 6-3-d) provides:

"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 attendence and examination of witnesses on his

behalf under the same conditions as witnesses against him."

The Government have submitted that the applicant's lawyer was

given the opportunity to submit certain questions to the witness heard

by the investigating judge, that the prosecution and the defence were

in an equal position, and that the defence had access to the reports

in question.

The Commission, however, considers that the applicant's

complaints raise complicated issues of fact and law which can only be

resolved by an examination of the merits. The application cannot,

therefore, be declared manifestly ill-founded on the grounds invoked

by the Government.

No other grounds for inadmissibility having been established,

the application must be declared admissible.

For these reasons, the Commission, without in any way

prejudging the merits,

DECLARES THE APPLICATION ADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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KOSTOVSKI v. THE NETHERLANDS

KOSTOVSKI v. THE NETHERLANDS

LEXI