FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39943/98

by Jacques W.A. BONAPART

against the Netherlands

The European Court of Human Rights ( First Section) sitting on 22 June 1999 as a Chamber composed of

Mrs E. Palm, President ,

Mr J. Casadevall ,

Mr L. Ferrari Bravo,

Mr C. Bîrsan ,

Mr B. Zupančič ,

Mrs W. Thomassen ,

Mr T. Pantiru , Judges ,

with 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 8 July 1997 by Jacques W.A. Bonapart against the Netherlands and registered on 18 February 1998 under file no. 39943/98;

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 Dutch national, born in 1964, and resides in Amsterdam. He is represented by Mr G. Spong , a lawyer practising in The Hague.

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

A. Particular circumstances of the present case

By judgment of 12 July 1995, the Regional Court ( Arrondissementsrechtbank ) of Amsterdam convicted the applicant of offences under the Opium Act ( Opiumwet ) and membership of a criminal organisation and sentenced him to twelve years’ imprisonment and payment of a fine of NLG. 250,000. The applicant filed an appeal with the Court of Appeal ( Gerechtshof ) of Amsterdam.

In its judgment of 20 December 1995, following adversarial proceedings in the course of which hearings were held on 6 and 11 December 1995, the Court of Appeal quashed the judgment of 12 July 1995, convicted the applicant of participation in offences under the Opium Act and membership of a criminal organisation and sentenced the applicant to twelve years’ imprisonment and payment of a fine of NLG. 250,000.

The evidence before the Court of Appeal consisted of, inter alia , the verbatim records of the hearing on 23 October 1995 of  Mr Brand, head of the regional police force Haaglanden , before the parliamentary commission of inquiry for investigation methods, statements made by the applicant in the course of the investigation and the trial proceedings, formal records ( proces-verbaal ) on the investigation, statements made by witnesses before the police and verbatim records of tapped telephone conversations.

The Court of Appeal rejected the arguments raised by the defence that the prosecution should be declared inadmissible on grounds that the fair trial principle within the meaning of Article 6 of the Convention had been violated in that the prosecution had insufficiently disclosed information about the criminal investigation at issue and that evidence had been obtained by use of an unlawful method of investigation, i.e. allowing imported drugs to reach their destination. The Court of Appeal held on these points:

“ Admissibility of the prosecution ...

It has not appeared that the Public Prosecution Department has refused to provide information or that acts have been performed or findings have been made in the context of the investigation of the facts at issue which have not been related in formal records. It appears clearly from the case-file that the investigation started with the interrogation of O.G. on 2 July and 2 August 1993 in Miami in the United States.

O.G. made a statement about the involvement of “M.” in the importation of cocaine, as well as of B.G., owner of the sport school B. Gym in Amsterdam. On the basis of this information, a preliminary judicial investigation ( gerechtelijk vooronderzoek ) was opened on 30 September 1993 against M. and on 15 October 1993 against B.G., owner of B. Gym in Amsterdam. It appeared from these investigations that B.G. had close contacts with J.R. and that the latter had almost daily contacts with A. On the basis of this information, preliminary judicial investigations were opened on 2 February 1994 against A. and J.R. It appeared from these investigations that A. had regular contacts with inter alia a certain G., whose name turned out to be J.W.A. Bonapart . On the basis of this information, a preliminary judicial investigation was opened on 2 August 1994 against J.W.A. Bonapart .

Chief Inspector H.D. , head of the Holco -team [*] , stated under oath in the first instance trial proceedings that in the course of the investigation no use was made of information from the Criminal Intelligence Service ( Criminele Inlichtingen Dienst : hereinafter “CID”).

Contrary to what the defence contend, it does not appear from the questioning by the parliamentary commission of inquiry of J.L. Brand that according to the latter other than normal methods of investigation were used in this case. Quite the opposite, since when Brand apparently speaks about the case at issue, he refers to it - insofar as the alleged importation of cocaine is concerned - as a case in which “the traditional methods have been applied” and - insofar as the alleged importation of marihuana is concerned - as “a case in which we have applied classical methods of criminal investigation”.

The argument of the defence relating to a decision of non-prosecution ( sepot ) having been issued in the case against G.G. has, following information obtained in the course of the trial proceedings, proved to be incorrect and not to be borne out by the facts. The Procurator General has been informed by the CID public prosecutor dealing with that case that it is absolutely untrue that G.G. was an informer.

The defence have insufficiently substantiated their contention that another informer besides G.G. may have been used.

Neither the formal records nor any other source give reason to presume that there may be a demonstrable direct link between any other (criminal) investigation than the one described in the formal records and the present case. This is not altered by the fact that the police was said to have procured a position for themselves from where it was possible to obtain information in the period from 1991 until the beginning of 1994. (“ Noch uit het proces-verbaal noch anderszins blijkt van een ernstig vermoeden dat er een direct verband aanwijsbaar is tussen enig ander onderzoek dan in het proces-verbaal is gerelateerd en deze zaak . De stelling dat de politie zich in de periode 1991 tot begin 1994 een informatiepositie zou hebben verworven doet daaraan niet af . ”)

In view of the above, no indications can be found either in the case-file or in the facts and circumstances argued by the defence that the formal records in casu were incomplete and that Article 152 of the Code of Criminal Procedure was contravened or that any methods of criminal investigation other than the usual methods were deployed.

The fair trial principle (Article 6 of the Convention) has in the Court’s opinion, therefore, not been violated.

...

Lawfulness of the evidence obtained

Counsel has argued that there is a serious suspicion that use has been made of an unlawful method of investigation, namely the delivery of drugs ... The Court rejects this argument and refers to its considerations as regards the admissibility of the prosecution ...“

The applicant’s subsequent appeal in cassation was rejected by the Supreme Court ( Hoge Raad ) on 25  March 1997 under Article 101a of the Judicial Organisation Act ( Wet op de Rechterlijke Organisatie ) as not prompting a determination of legal issues in the interest of legal unity and legal development. The Supreme Court further found no grounds for quashing ex officio the judgment of 20 December 1995.

B. Relevant domestic law

Article 152 of the Code of Criminal Procedure ( Wetboek van Strafvordering ) provides as follows:

“The civil servants, referred to in Articles 141 and 142, shall record as soon as possible in formal records the investigated punishable fact or what they have done or found in the investigation.”

“De ambtenaren , bedoeld in de artikelen 141 en 142, maken ten spoedigste proces-verbaal op van het door hen opgespoorde strafbare feit of van hetgeen door hen tot opsporing is verricht of bevonden .”

Article 33 of the Code of Criminal Procedure reads as follows:

“Access to all documents in the case-file, either the originals or copies thereof, may not be denied to the suspect as soon as the decision to close the preliminary judicial investigation, in accordance with Article 238, has become final for the public prosecutor, or the preliminary judicial investigation, in application of Artilce 258 para. 2, has ended, or, where there has been no preliminary judicial investigation, as soon as the notification of further prosecution or the summons for appearance at the trial in first instance has been served.”

“De kennisneming van alle processtukken in het oorspronkelijke of in afschrift mag de verdachte niet worden onthouden zodra de beschikking tot sluiting van het gerechtelijk vooronderzoek overeenkomstig artikel 238 voor de officier van justitie onherroepelijk is geworden , dan wel het gerechtelijk vooronderzoek met toepassing van artikel 258, tweede lid, is beëindigd , of, indien een gerechtelijk vooronderzoek niet heeft plaatsgehad , zodra de kennisgeving van verdere vervolging of de dagvaarding ter terechtzitting in eerste aanleg is betekend .”

COMPLAINT

The applicant complains under Article 6 §§ 1 and 3 of the Convention that he did not receive a fair trial in the criminal proceedings against him in that possibly relevant information as regards the investigation against him was not  disclosed to the defence.

He argues that the fact that the police had procured a position for themselves from were it was possible to obtain information implies that police officers or others had managed to infiltrate a criminal organisation, in which the applicant was subsequently found to have been active, and that they had obtained relevant information in this manner. Without full knowledge of all those investigations - conducted prior to the applicant’s apprehension and further gathering of evidence in the present case - which led to the procurement of this position by the police, a judge is unable determine whether or not such information might be of relevance. Referring to the Court’s findings in the case of Edwards v. the United Kingdom (judgment of 16 December 1992, Series A no. 247-B), the applicant argues that if a trial is to be fair, the investigating and prosecution authorities must ultimately disclose to the defence in criminal proceedings all investigation results which are of importance.

THE LAW

The applicant complains under Article 6 §§ 1 and 3 (b) of the Convention that he did not receive a fair trial in the criminal proceedings against him in that possibly relevant information relating to the investigation against him has not been disclosed to the defence.

Article 6 §§ 1 and 3 of the Convention, insofar as relevant, reads:

"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:

...

b. to have adequate time and facilities for the preparation of his defence;

...”

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 considers that questions concerning the admissibility of evidence is 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. 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 (see the Van Mechelen and Others v. the Netherlands judgment of 23 April 1997, Reports 1997-III, No. 36, p. 711, § 50).

The Court further considers that the Convention does not preclude reliance, at the investigating stage, on information obtained by the investigating authorities from sources such as anonymous informants or undercover agents. The subsequent use of information provided by such sources by a trial court to found a conviction may, however, raise issues under the Convention (see the Windisch v. Austria judgment of 27 September 1990, Series A no. 186; and Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238).

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). 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 notes that the Court of Appeal found that it had not appeared that the Public Prosecution Department had refused to provide information or that acts had been performed or findings had been made in the context of the investigation of the facts at issue which had not been laid down in formal records. The Court of Appeal further found no indications either in the applicant’s case-file or in the facts and circumstances argued by the defence that the formal records in casu were incomplete or that any methods of criminal investigation other than the usual methods had been deployed.

The Court further notes that it has not been argued nor has it appeared that the applicant’s conviction was based on evidence in respect of which he was not or not sufficiently able to exercise his defence rights under Article 6 §§ 1 and 3 of the Convention. In respect of the applicant’s request to add further evidence to his file, i.e. information allegedly withheld by the prosecution authorities, the Court cannot find that the decision by the Court of Appeal was unreasonable or arbitrary.

Furthermore, noting that the applicant was convicted following adversarial proceedings in the course of which he was given ample opportunity to state his case, to challenge the evidence before the trial courts and to submit whatever he found relevant for the outcome of the proceedings, the Court finds no indication that the criminal proceedings against the applicant fell short of the requirements of Article 6 of the Convention as regards fairness of proceedings.

It follows that 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

[*]  Criminal investigation team in the District of The Hague, which at the relevant time investigated Colombian-Dutch organisations involved in the importation and distribution of cocaine in the Netherlands.