Resolution CM/ ResDH (2010) 109 [1]

Execution of the judgment of the European Court of Human Rights

Bocos-Cuesta against the Netherlands

(Application No. 54789/00, judgment of 10 November 2005, final on 10 February 2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the lack of a fair trial in that the applicant was not given the opportunity to question the minors who were prosecution witnesses against him (violation of Article 6, paragraphs 1 and 3 (d)) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to clos e the examination of this case.

Appendix to Resolution CM/ ResDH (2010)109

Information about the measures to comply with the judgment in the case of

Bocos-Cuesta against the Netherlands

Introductory case summary

The case concerns a violation of the applicant ’ s right to a fair trial in that he was denied a proper and adequate opportunity to challenge certain pre-trial witness statements given by minors, which were of a decisive importance for his conviction (violation of Article 6§1 taken together with Article 6§3(d)).

The applicant was suspected, and subsequently convicted, of sexual assault on four minors. The alleged victims had given statements to the police. At the trial the applicant ’ s lawyer asked to hear the four children. This request was rejected by the Amsterdam Regional Court and later by the Amsterdam Court of Appeal, which held that hearing the children as witnesses could possibly force them to relive a very traumatic experience and that their interests outweighed those of the applicant in that respect. The Supreme Court later upheld the Court of Appeal ’ s judgment.

The Court noted that the applicant had not been provided with an opportunity to follow the manner in which the police had taken the children ’ s testimony nor to have questions put to them. Furthermore, as the children ’ s statements to the police were not recorded on videotape, neither the applicant nor the trial court judges had been able to observe their demeanour under questioning. The Court finally found that the reason given by the domestic courts for refusing the applicant ’ s request to hear the victims had been insufficiently substantiated and, to a certain extent, speculative.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

4 190 EUR

4 190 EUR

Paid on 13/03/2006

b) Individual measures

The Court dismissed the applicant ’ s claim for just satisfaction in respect of pecuniary and non-pecuniary damages, considering that national law allowed for adequate redress through the reopening of the proceedings (Article 457 of the Code on Criminal Procedure). Consequently, the Committee of Ministers considered that no further individual measures were necessary in this case. The applicant has however not made use of this opportunity.

II. General measures

Since 1/10/2006, the Netherlands police have been making audiovisual recordings of interviews with persons under 16 if the offence in question carries a maximum penalty of 12 years ’ imprisonment or more, or if this maximum penalty is less than 12 years but the offence has resulted in the death or serious bodily injury of the victim, if the offence is of a sexual nature with a maximum penalty of 8 years ’ imprisonment or more, or if it involves sexual abuse in a dependent relationship. These measures have now been established in the instruction "Audio and audiovisual recording of the examination of informants, witnesses and suspects" ( Aanwijzing auditief en audiovisueel registreren van verhoren van aangevers, getuigen en verdachten ’ (Staatscourant, 28 July 2010, No. 11885)).

In addition, the Court ’ s judgment was published in several legal journals in the Netherlands , in particular in Nederlands Juristenblad (2006, No. 1, pp. 18-19), Nederlandse Jurisprudentie (2006, 239) and Trema (2005, No. 10, pp. 442-444). The Netherlands authorities consider that given the direct effect of Court ’ s judgments in the Netherlands , all authorities concerned are expected to align their practice on this judgment.

This judgement is still regularly being given consideration in legal publications, see for example the publication of Bas de Wilde in NJCM-bulletin (2009, 34-5, pp. 495-511).

III. Conclusions of the respondent state

The government considers that the measures taken are capable of remedying the consequences for the applicant of the violation of the Convention in this case, that the measures adopted will prevent similar violations and that the Netherlands have thus complied with their obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 15 September 2010 at the 1092nd meeting of the Ministers’ Deputies