FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39024/97 by L.N. against the Netherlands

The European Court of Human Rights ( First Section ) sitting on 9 November 1999 as a Chamber composed of

Mrs E. Palm, President , Mr J. Casadevall, Mr L. Ferrari Bravo,

Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mrs W. Thomassen , judges ,

and Mr M. O'Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 September 1997 by L.N. against the Netherlands and registered on 18 December 1997 under file no. 39024/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Netherlands national, born in the Netherlands in 1956. He is in prison in Heerhugowaard (the Netherlands ). He was formerly resident in the town of Alkmaar .

He is represented before the Court by Ms Ties Prakken, a lawyer practising in Amsterdam .

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

A. Particular circumstances of the case

Around 2.30 in the morning of 23 January 1995 a woman identifying herself as R. telephoned the Alkmaar police and reported a stabbing in her home, naming the applicant, who was her former boyfriend, as the culprit. The police went there and found the body of R.'s current boyfriend K. He had been stabbed to death.

The police secured a carving knife in R.'s house. The applicant was arrested outside his own home later that night.

The applicant was charged with murder or, in the alternative, manslaughter. He appeared before the Regional Court ( Arrondissementsrechtbank ) of Alkmaar on 2 May 1995. At the request of the prosecution the hearing was adjourned so as to complete a psychiatric examination of the applicant. A request made by the defence for the applicant's release from pre-trial detention was refused.

The hearing resumed on 27 June 1995. The applicant availed himself of his right to remain silent. His counsel conducted the defence.

The Regional Court gave judgment on 11 July 1995. It acquitted the applicant of the charge of murder but found him guilty of manslaughter.

The applicant appealed. The appeal was heard on 19 December 1995 by the Court of Appeal ( Gerechtshof ) of Amsterdam . The defence had asked for R. to be heard as a witness but it had not been possible to summon her in time as she had moved back to Germany , her country of origin.

The applicant no longer wished to remain silent. He stated that he had done so at the first-instance proceedings because he had been alarmed at the way in which the police had automatically assumed, following his arrest, that he had killed K.; also, he had expected that the truth would emerge eventually and that he would be acquitted. He stated that he had been in R.'s house on the evening of 22 January 1995 and had drunk a few bottles of beer, after which he had gone into town and had a few more drinks, but denied that he had killed K.

The defence insisted that R. should be heard. The Court of Appeal allowed these requests and adjourned the hearing until 12 March 1996. The applicant remained in detention on remand in the meanwhile.

The witness R. was heard by an investigating judge on 13 February 1996. The report of this interrogation was before the Court of Appeal when the hearing resumed on 12 March 1996. The defence again asked for her to be questioned and confronted with the applicant in open court but later withdrew this request. The applicant again stated that R.'s statement was untrue. He had drunk several bottles of beer at R.'s, after which he had gone to a bar for more drinks.

The Court of Appeal gave judgment on 26 March 1996. As the Regional Court had done, it acquitted the applicant of murder but convicted him of manslaughter and sentenced him to five years' imprisonment. The evidence relied on was the following:

- the applicant's statement at the hearing to the effect that he had visited R. in her house on the evening of 22 January 1995, that R. had gone to sleep, that he had woken her up around midnight and had left, and that he had been arrested outside his home at around 3.00 on 23 January;

- a police report relating that a knifing at R's address had been reported at around 2.30 a.m. on 23 January 1995, after which they had gone there. They had found a man sitting on a couch, who had looked pale and whose clothes were blood-soaked. On another couch a woman had been sitting, weeping. The man had been dead;

- R.'s statement made to the police on 23 January 1995 that the applicant had met K. at around two in the morning in her house. The applicant had become aggressive and had threatened several times to kill K. He had then gone into the kitchen. She had seen him reach into his left sleeve and make a punching movement towards K.'s chest. Immediately afterwards she had seen the applicant holding a bloody knife in his right hand. She had then telephoned the police; after having done so she noticed that the applicant had gone. She recognised the knife she was shown by the police officers as the knife which the applicant had used. It was a carving knife which was kept in a drawer in her kitchen;

- a police record from which it appeared that on 23 January a carving knife had been found in R.'s home and that, when interrogated, R. had recognised the knife;

- a police record relating that on 23 January, at 2.32 a woman (R.) had telephoned the police in tears, at first without saying anything, later asking for an ambulance and saying that a friend had stabbed another friend of hers. A few seconds later R. had telephoned the police again asking the police to come fast because her friend was dying. The police had requested her not to hang up the telephone and had asked her for the name of the friend who had been stabbed and she had given the name of K. Then the police had asked her who had stabbed her friend and she had given the name of the applicant, adding in tears that she feared that the applicant would now kill himself too;

- the report of the autopsy on K. concluding that K. had died after he had been stabbed.

The applicant appealed on points of law to the Supreme Court ( Hoge Raad ). In a statement of grounds of appeal submitted on his behalf by counsel he relied on Article 342 § 3 of the Code of Criminal Procedure (see below), arguing that the only evidence linking him to the knifing was constituted by statements of R. which were unsupported by other evidence.

In an advisory opinion ( conclusie ) submitted on 14 January 1997, the Advocate General considered that parts of R.'s statement were supported by the other evidence relied upon by the Court of Appeal.

The Supreme Court gave judgment on 1 April 1997. It dismissed the applicant's appeal.

B. Relevant domestic law and practice

Criminal appeals in the Netherlands are by way of a complete rehearing. All provisions governing the conduct of the hearing and the submission of evidence at first instance apply also to the appeal proceedings (Article 415 of the Code of Criminal Procedure).

Among these provisions is Article 342 § 3 of that Code, which provides:

“The court shall not assume solely on the basis of a statement by a single witness that it is proved that the suspect has committed the act with which he is charged.”

The significance of this rule is that a conviction cannot be based exclusively on the statement of one witness. In constant case law the rule has been limited to the extent as the second item of evidence does not necessarily have to confirm the statement of the witness.

COMPLAINT

The applicant alleges that the proceedings against him were not in conformity with Article 6 § 1 of the Convention. He complains that he was convicted solely on the evidence of R., that being the only evidence linking him to the stabbing.

THE LAW

Article 6 of the Convention, in so far as relevant, provides as follows:

1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...”

The applicant argues that the requirements of fairness contained in Article 6 § 1 of the Convention include the rule that a conviction should not be based exclusively on the testimony of one witness (the unus testis nullus testis rule). In his contention, this rule has been violated in that there was no evidence, apart from that of the witness R., which actually linked him to the killing of the victim K. Although the unus testis nullus testis rule was part of Netherlands law, it had been disregarded in the present case.

The Court observes that the unus testis nullus testis rule is contained in Article 342 § 3 of the Netherlands Code of Criminal Procedure. Throughout the domestic proceedings the applicant's counsel based the defence argument on this provision. The Netherlands courts did not share the applicant's view. There is nothing in the file to suggest that the courts disregarded or overlooked the principle of unus testis nullus testis . They disagreed with the interpretation of this principle proposed by the applicant. They found the conviction of the applicant not to be based on just the declaration of one witness.

In these circumstances it is unnecessary for the Court to consider on this occasion whether the unus testis nullus testis rule is among the guarantees vouchsafed by Article 6 of the Convention.

It follows that the application is manifestly ill-founded.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Michael O'Boyle Elisabeth Palm

Registrar President