FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43286/98 by Jaime Antonio ECHEVERRI RODRIGUEZ against the Netherlands

The European Court of Human Rights (First Section) , sitting on 27 June 2000 as a Chamber composed of

Mrs E. Palm, President , Mrs W. Thomassen, Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mr J. Casadevall, Mr R. Maruste, judges , and Mr M. O’Boyle, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 2 June 1998 and registered on 3 September 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Colombian national, born in 1960 and currently serving a prison sentence in the Netherlands. He is represented before the Court by Ms E. Prakken , a lawyer practising in Amsterdam.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 1 April 1992, upon request of the public prosecutor, the investigating judge ( rechter-commissaris ) of the Regional Court ( Arrondissementsrechtbank ) of The Hague opened a preliminary judicial investigation ( gerechtelijk vooronderzoek ) against Mr X., a Colombian national residing in the Netherlands and who was suspected of being involved in importation of cocaine. At some later point in time, a preliminary judicial investigation was also opened against Ms Y., the spouse of Mr X. After Mr X. and Ms Y. had become aware of these investigations, they left the Netherlands for the United States of America (USA). Although, following their departure from the Netherlands, the criminal investigations against them were not actively pursued, they were not formally closed.

In April 1995, the USA Drugs Enforcement Agency (DEA) opened an investigation under the code name “Tropical Wizzard ” against a number of persons suspected of cocaine trafficking and money laundering activities. One of these suspects was Mr X. As it appeared from tapped telephone conversations of Mr X., that he was involved in the transport of drugs to the Netherlands, the responsible Assistant Attorney for the Southern District of Florida, Ms D., requested the United States District Court for the Southern District of Florida on 20 April 1995 for an order allowing the disclosure of intercepted wire conversations to the Netherlands criminal investigation authorities. After having obtained this judicial disclosure order on 25 April 1995, the Netherlands criminal investigation authorities were provided with the intercepted communications.

On 24 May 1995, on the basis of the 1981 Treaty between the Netherlands and the USA with regard to mutual assistance in criminal matters, the public prosecutor Mr V. addressed a letter rogatory to the USA authorities to the effect of making available the results of the criminal investigation in the USA, including the tapped telephone conversations, in order to explore the possibilities of a joint investigation of the activities of Mr X. in particular.

From the information made available by the USA authorities, it appeared that around 9 July 1995, a ship carrying a large quantity of cocaine destined for the Netherlands had left a Colombian harbour and that Mr X. had contacts by telephone with persons in the Netherlands. One of the telephone numbers concerned was 06-528*****. This number was registered in the Netherlands under the name of a person called M. and used by a person referred to as “El Doctor”.

On 13 July 1995, the preliminary judicial investigation against Mr X. in the Netherlands was reactivated and permission was obtained from the investigating judge to tap a number of telephone lines including the number 06-528*****. In addition, a preliminary judicial investigation was opened against Mr Gomez Y., who would represent Mr X. in the Netherlands.

It appeared from telephone conversations tapped and a large number of observations that the ship from Colombia would arrive in the harbour of Zeebrugge (Belgium), where the drugs would be collected by a number of Colombians with the aid of divers and subsequently be brought by car to the Netherlands. Observations allowed the police to identify three cars in which the drugs would be transported. One of the cars, a Renault Clio , guided the other two cars to the final place of delivery. Mr X. was found to be in contact with the driver of the Renault Clio via the mobile telephone line 06-528*****. In the night of 2-3 August 1995, a large number of persons involved were arrested and taken into detention. A total of 145 kg. of cocaine was seized. Mr X. and the applicant were amongst the arrested persons. The applicant was arrested sitting in the Renault Clio , shortly after this car had arrived at the place where the cocaine was planned to be delivered.

Following the closure of the preliminary judicial investigation, the applicant was charged with narcotics offences and summoned to appear before the Regional Court of The Hague in order to stand trial.

In its judgment of 8 February 1996, following adversarial proceedings, the Regional Court convicted the applicant of being involved in narcotics offences and of membership of a criminal organisation. He was sentenced to eight years’ imprisonment. The applicant filed an appeal with the Court of Appeal ( Gerechtshof ) of The Hague.

In the course of the hearing held on 2 October 1994 before the Court of Appeal, the defence requested the court, inter alia , to hear a number of witnesses, including Ms D., the USA Assistant Attorney having dealt with the investigation conducted in the USA, in relation to her request of 20 April 1995 and the role played by a certain Mr S. in the investigation in the USA. The defence did not find it necessary to take direct evidence from Mr S.

On 9 October 1994, after having deliberated, the Court of Appeal rejected the request to take evidence from Ms D. and a number of other witnesses. It considered on these points:

“ As a general framework for the decisions to be taken, the court considers the following at the outset.

1. The case has its origins in a broad investigation of international cocaine trafficking conducted in the USA under the name Tropical Wizzard . The criminal investigation in the Netherlands has been set into motion after having obtained on 24 May 1995 disclosure of American tapping data, in accordance with the provisions of the Treaty between the Kingdom of the Netherlands and the United States of America on mutual assistance in criminal matters…. The tapping data have thus formed the basis of the start of the investigation in the Netherlands. With the aid of further taps and observations in the Netherlands, the investigation has been pursued, which led on 3 August 1995 to the finding of 145 kg. cocaine and the apprehension of a large number of suspects, amongst whom the accused.

2. The accused now request the court, in brief, to assess inter alia the course of events in relation to the lawfulness of the use in the Netherlands of American investigation results. The question is whether it is incumbent on the Netherlands judge to do so. The court considers that in principle this is not the case. The existence of a treaty on mutual assistance in criminal matters is based on the principle that it may be relied upon that the Government, to whom a request is addressed and in application of that treaty, will exercise its powers in conformity with the treaty norms, which may be considered as being in conformity with the essential norms of public order valid in the Netherlands. Only where there is a concrete reason to assume that in the application of such powers those norms would have been disrespected, a reason would arise to examine the lawfulness indicated. The court considers that those norms include those of the international human rights treaties.

3. For the question when acts are contrary to the Dutch public order it is possible, in connection with the instant case and noting the contents of the defence argument, to consider the case-law relating to the (in)admissibility of the public prosecution department in its prosecution. This appears, inter alia , from the so-called Zwolsman judgment …, namely that the far reaching sanction of inadmissibility of the prosecution can only follow in case of serious breaches of the principles of proper proceedings ( behoorlijke procesorde ) by which, deliberately or with gross negligence, the suspect’s interests in his right to a fair hearing have been disrespected.

4. In relation to the defence’s requests seeking an investigation into the lawfulness of the Netherlands criminal investigation, the court considers at the outset that a possible flaw of the lawfulness, insofar as it does not impel the inadmissibility of the prosecution, only then leads to the exclusion of the evidence if the suspect concerned is harmed in an interest that the violated norm seeks to protect. This implies that in such a case an investigation of a violation of such a norm is not necessary, if the suspect himself has not been directly harmed by this .

5. As to the compilation of the case-file, the court considers at the outset that the responsibility thereto rests primarily with the public prosecutor, who provides the case-file to the judge. In that file are to be included the data that in all reasonability may be of relevance to any decision to be taken by the judge, including possible exculpating evidence.

6. It applies to all objections and requests by the defence, that these are to be substantiated by sufficiently concrete facts and/or circumstances and which are of relevance to the point made. Suppositions and suggestions are insufficient to this end.

7. The court will now consider the requests of the accused.

8. It is contended that no full disclosure has been made as to the investigation in the USA. It is not excluded that more methods of investigation than taps has been used and that the Netherlands Prisma team was already itself actively involved in the investigation. The defence deduces this from the written remark on 20 April 1995 by Ms D. that the “the United States’ Attorney’s Office of the Southern District of Florida and the Drug Enforcement Administration currently are co-ordinating their law enforcement activities with the law enforcement agencies of the Netherlands” and furthermore from the fact that Mr E. Prisma investigation team> states that on 23 May 1995 more documents had been shown than subsequently requested and disclosed.

9. Mr E. has been extensively questioned twice about these matters by the investigating judge and the defence. It follows from his statements that the Netherlands police kept regular contacts with the American authorities about joint investigation targets - drug trafficking from South-America - and that in this framework it received a tip from the USA about possibly punishable acts by Mr X., which could have a follow-up in the Netherlands. Further consultations have occurred on a number of times. Subsequently, on 23 May 1993 and in the presence of the public prosecutor, a conversation with, amongst others, Ms D. has taken place in the Netherlands and, on 24 May <1995> by letter rogatory , the public prosecutor has requested the disclosure of the investigation results including the taps. Only the taps have been disclosed.

10. From the statements of Mr E. cannot be deduced more than that there has been a consultation prior to 23 May 1995, but not that the Netherlands police has been actively involved in the USA in investigation acts or that the Netherlands public prosecution department was conducting an investigation there. This can furthermore not be deduced from Ms D.’ remark on 20 April 1995. On 23 May <1995>, the American authorities have informed the Netherlands colleagues of the investigation results obtained at that point in time.

11. It is a fact that Mr E. declares that more documents have been shown and have been kept outside the case-file … and that he cannot make public some matters. When questioned, he indicates … that those other documents and matters are, inter alia , connected to another cocaine line. Since the order of the judge in Florida dated 25 April 1995 on disclosure of documents only related to taps, the court considers at the outset that on 23 May <1995>, in relation to the Tropical Wizzard case, for that reason only the taps have been disclosed and that other documents shown concerned other cases, as indicated by Mr E.

12. Given the previously formulated general framework, the court sees no terms in the defence’s submissions to have a further investigation of the lawfulness and of the possible presence of other methods of investigation in the USA. The submissions to this effect are insufficiently concretised and is for the greater part based on suppositions, whereas it has neither been substantiated that the methods used might be so unacceptable that the Netherlands public order comes into play.

13. A lack of clarity nevertheless remains. On 23 May <1995> documents have been selected in the presence of the public prosecutor. The following day, he has requested the disclosure of more documents than solely the taps. It is possible that with this he means the selected material. Insofar as known to the court, only the taps have been disclosed and the public prosecutor has acquiesced in this . The question therefore arises as to what documents the public prosecutor has possibly had in mind - possibly those of 23 May <1995> - and whether these documents could be of relevance for any decision of the court. The defence points at this lack of clarity. The court finds reason in this to request the public prosecutor to submit a clarification in writing on this and/or to remain available as a witness, albeit with the explicit limitation that in this only concerns these questions. It must, however, be pointed out at this stage that this matter is likely, for the time being at least, to be of limited importance. The further case-file, which has led to the suspect’s arrest, has in fact only been constituted following receipt of the taps.

14. The court therefore rejects the requests by the defence in relation to the investigation in the USA, i.e. the taking of evidence from Ms D., with the exception of the request in relation to the public prosecutor concerning the question as limited above.

15. The defence suspects that Mr S. might have been involved in the investigation as an infiltrator. An investigation is requested. He would currently live in Florida.

16. That Mr S. was an infiltrator is no more than a supposition. When questioned, Mr E. stated that no infiltrator was involved in the Netherlands investigation and has submitted good grounds why Mr S. was not arrested then as a suspect (he did not yet know Mr S. then and a suspicion of punishable acts had not yet arisen then).

17. Remains the possibility that Mr S. was working for the investigation authorities in the USA and infiltrated here . Without further data, the court considers this possibility unlikely. The question is indeed to what purpose Mr S. would have infiltrated here, let alone in the case of this suspect. Nothing appears from the documents that could indicate provocation by Mr S. - X. even denies that actually - or any other influence of Mr S. on the actual importation of the cocaine.

18. Mr S. was possibly here in the Netherlands as an observer, leaving aside the desirability of such activities on the territory of another State. As the Netherlands police themselves have observed, the court considers that such a role, assuming that he has played it, is of insufficient weight to investigate this, given the frameworks indicated above. All requests in relation to this matter are therefore rejected.

19. It has been requested on behalf of the suspect to submit the full formal records of the observations. In the running formal records (“ loop- p.v . ”) summaries of the observations have been included. Whether in addition further formal records have been made is not known to the court. If so, then there is in principle reason to add those formal records to the case-file. The court will therefore request the Procurator General to do so or to indicate in writing why this cannot take place (in full).

…

22. The suspect has further requested to hear the witness Mr M. about the suspect’s role. The defence has not yet been able to question this witness. Nevertheless, the court rejects this request as insufficiently substantiated. It appears from the documents that Mr M. has hardly any knowledge of that role and it has not been indicated that he would know more.

…

24 The suspect has also requested to hear as a witness Ms Y., living in Florida. She would be able to testify about a possible role of the suspect in the past. The court rejects this request. In the extensive Dutch investigation numerous persons have been heard, amongst whom also a number in relation to the possible role of the suspect in the past. It is unclear why a further statement needs to be added, whereas furthermore it has not been indicated that the witness requested has own knowledge about that part. That is only supposed. “

By letter of 21 October 1996, the public prosecutor Mr V. submitted further explanations to the Court of Appeal in relation to his letter rogatory addressed to the USA authorities.

In the course of the hearing held on 30 October 1996 before the Court of Appeal, oral evidence was taken from the applicant, the public prosecutor Mr V. and a further witness. The hearing of the public prosecutor Mr V. was, however, restricted to the specific subject matter as explicitly defined by the Court of Appeal. On the same day, the Court of Appeal heard the parties’ final pleadings and fixed the date on which it would hand down its judgment.

In its judgment of 13 November 1996, the Court of Appeal quashed the judgment of 8 February 1996, convicted the applicant of being involved in narcotics offences and of membership of a criminal organisation and sentenced him to eight years’ imprisonment.

It rejected the requests by the defence to adjourn the proceedings on appeal pending the inclusion of the records in relation to the observation of the garage at the final place of delivery of the cocaine or, alternatively, to take oral evidence from the police officers having observed that location; to take, in the light of the testimony given by the public prosecutor Mr V., oral evidence from Ms D. in relation to a possible informal co-operation between the Dutch and American criminal investigation authorities already in April 1995; and to take further unrestricted oral evidence from the public prosecutor Mr V.

The Court of Appeal held on the first point that, in conformity with the court’s request, the public prosecutor had added three formal records on the observation to the case-file. It considered itself sufficiently informed by these formal records and did not find a further investigation of this point necessary. Referring to its considerations stated on 9 October 1996 and finding that the hearing held on 30 October 1996 had not disclosed any further elements which should lead to a different finding, the Court of Appeal also further rejected the second and third requests by the defence.

It based the applicant’s conviction on the applicant’s statement before the Regional Court, statements taken from Mr X. before the police and the investigating judge, statements taken from other persons before the police and/or the investigating judge, formal records and the results of a forensic examination of substances seized by the police on 3 August 1995.

The applicant’s subsequent appeal in cassation with the Supreme Court ( Hoge Raad ) was rejected on 16 December 1997. Insofar as the applicant complained that the Court of Appeal had unjustly rejected his requests to take further evidence, the Supreme Court accepted as correct the reasons stated by the Court of Appeal for not acceding to those requests. As regards the decision to restrict the scope of further evidence sought from the public prosecutor Mr V., the Supreme Court held that the Court of Appeal was at liberty to restrict the questioning of this witness to those points in respect of which the necessity to obtain further evidence had appeared. It further noted that it had not been argued and that it had not appeared that the defence had been restricted in the exercise of its rights in relation to the questioning of this witness about the subjects defined by the Court of Appeal.

COMPLAINTS

The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention that:

-   the Court of Appeal refused to take oral evidence from the USA Assistant Attorney Ms D. as she could have clarified issues in relation to the investigation carried out in the USA. The applicant submits that he has thus been unable to verify at what point in time his name started to appear in the investigation in the USA and, in case an infiltrator has been used in this investigation, whether this infiltrator was subject to the same limitations as those developed in the Netherlands legal system;

-   the Court of Appeal limited the taking of evidence by the defence from the public prosecutor V. to the question as to what documents he had in mind when he addressed the letter rogatory to the USA authorities and that the defence was thus barred from putting other questions in relation to his contacts with the USA judicial authorities;

-   the request by the defence to take evidence from the defence witnesses Ms Y. and Mr M. was rejected by the Court of Appeal;

-   not all documents relating to the police observations were included in the applicant’s case-file; and that

-   the Court of Appeal rejected the subsequent request by the defence to take evidence from all police officers having participated in these observations on the question as to whether they had seen the applicant entering the garage where the drugs were being delivered.

PROCEEDINGS BEFORE THE COURT

The application was introduced on 2 June 1998 and registered on 3 September 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

Article 6 of the Convention, insofar as relevant, provides:

“1. In the determination of … any criminal charge against him, everyone is entitled to a fair … 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;”

Insofar as the applicant complains that not all documents relating to the police observations were included in his case-file, the Court notes at the outset that this complaint has not been mentioned in the applicant’s initial submissions of 2 June 1998. This complaint was raised for the first time in the applicant’s submissions of 25 August 1998. Noting that the final decision in the instant case has been taken on 16 December 1997 by the Supreme Court, it follows that this complaint must be rejected under Article 35 § 1 of the Convention for having been submitted out of time.

As to the remainder of the application, the Court recalls that the guarantees of paragraph 3 of Article 6 of the Convention are specific aspects of the general rights to a fair trial contained in Article 6 § 1 of the Convention (see the Benham v. United Kingdom judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, No. 10, p. 755, § 52). The Court will therefore examine the application under Article 6 §§ 1 and 3 taken together.

The Court recalls that questions concerning the admissibility of evidence are primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them as well as the relevance of the evidence, which a defendant seeks to adduce. More specifically, Article 6 § 3 (d) of the Convention leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses in the autonomous sense given to that word in the Convention system. It does not require the attendance and examination of every witness on behalf of the accused. The task of the Court under the Convention is to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (cf. Engel v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 38, § 91; Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, § 89, Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, p. 32, § 33; and Van Mechelen and Others v. the Netherlands judgment of 23 April 1997, Reports 1997-III, No. 36, p. 711, § 50).

It is further a requirement of fairness under Article 6 para. 1 of the Convention that the prosecution authorities disclose to the defence all material evidence for or against the accused (see the Edwards v. United Kingdom judgment of 16 December 1992, Series A no. 247-B, p. 35, § 36).

The Court finally recalls that all the evidence must normally be produced at a public hearing in the presence of the accused with a view to adversarial argument. Although there are exceptions to this principle, as a general rule Article 6 of the Convention requires that the defendant be given an adequate and proper opportunity to challenge the evidence against him (see the Van Mechelen and Others judgment, loc. cit., p. 711, § 51).

Insofar as the applicant complains that the Court of Appeal refused to take oral evidence from the USA Assistant Attorney Ms D. as she could have clarified issues in relation to the investigation carried out in the USA, the Court considers that the Convention does not preclude reliance, at the investigating stage, on information obtained by the investigating authorities from sources such as foreign criminal investigations. Nevertheless, the subsequent use of such information can raise issues under the Convention where there are reasons to assume that in this foreign investigation defence rights guaranteed in the Convention have been disrespected. However, the applicant has not substantiated in any way that such reasons existed in the instant case.

Noting the extensive reasons given by the Court of Appeal for not acceding to the requests by the defence to take evidence from Ms D., Ms Y., Mr M. and the police officers having observed the location of the final delivery of the cocaine, the Court cannot find that the decisions by the Court of Appeal on these requests can be regarded as unreasonable or arbitrary, or that these refusals, as such, deprived the applicant of a fair hearing within the meaning of Article 6 of the Convention.

As to restriction of the scope of questioning of the public prosecutor Mr V. in the proceedings before the Court of Appeal, the Court considers that it follows from the domestic courts’ discretionary powers in the assessment of the question whether or not it is appropriate to call witnesses that such courts may equally limit the taking of oral evidence from witnesses summoned to specific subject matters.

The Court, noting the reasons stated by the Court of Appeal on this point, cannot find that the restriction imposed by the Court of Appeal as to the evidence sought from the public prosecutor Mr V. - i.e. what documents he had sought to obtain from the USA authorities - deprived the applicant of a fair hearing within the meaning of Article 6 of the Convention.

Considering that the applicant was convicted following proceedings in which the defence has been given ample opportunity to hear and question witnesses, to state the applicant’s case and to submit whatever it found relevant to the outcome, the Court is of the opinion that there are no indications that the criminal proceedings at issue fell short of the requirements of Article 6 of the Convention.

It follows that this part of the application must be rejected for being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Elisabeth Palm Registrar President