resolution DH (99) 124

CONCERNING THE JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS OF 23 April 1997 and 30 october 1997 IN THE CASE OF Van Mechelen and Others AGAINST the Netherlands

(Adopted by the Committee of Ministers on 19 February 1999 at the 659th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgments of the European Court of Human Rights in the Van Mechelen and others case delivered on 23 April 1997 and 30 October 1997 and transmitted the same days to the Committee of Ministers;

Recalling that the case originated in four applications (Nos. 21363/93, 21364/93, 21427/93 and 22056/93) against the Netherlands, lodged with the European Commission of Human Rights under Article 25 of the Co n vention by Mr Hendrik van Mechelen and Mr. Villem Venerius on 27 November 1992, by Mr Johan Venerius on 8 December 1992 and by Mr Antonius Amandus Pruijmboom on 24 November 1992, all four Netherlands nationals, and that the Commission declared admissible the complaint that they had been convicted to a decisive extent on statements given by unidentified witnesses who were members of the police and whose reliability the defence could not test;

Recalling that the case was brought before the Court by the Commission on 17 April 1996;

Whereas in its judgment of 23 April 1997 (merits and Article 50) the Court:

- held, by six votes to three, that there had been a violation of Article 6, paragraph 1, of the Convention, taken together with Article 6, paragraph 3 d ;

- held, unanimously, that the Government of the respondent State was to pay, within three months, in respect of costs and expenses, to the applicants van Mechelen and Willem Venerius jointly, 16 598,07 Dutch guilders, less 11 412 French francs to be converted into Dutch guilders at the rate of exchange applicable on the date of delivery of the present judgment; to the applicant Johan Venerius, 20 000 Dutch guilders, less 11 436 French francs to be converted into Dutch guilders at the rate of exchange applicable on the date of delivery of the present judgment; to the applicant Pruijmboom, 11 905 Dutch guilders; and that simple interest at an annual rate of 5% should be payable on those sums from the expiry of the above-mentioned three months until settlement;

- rejected, unanimously, the remainder of the claim of the applicant Johan Venerius for reimbursement of costs and expenses;

- held, unanimously, that the question of the application of Article 50 of the Convention in respect of the applicants' claims for damages was not ready for decisions, and consequently, reserved the said question; invited the government and the applicants to submit, within three months, their written observations on the matter and, in particular, to notify the Court of any agreement they may reach; and reserved the further procedure and delegated to the President of the Chamber the power to fix the same if need be;

Whereas in its judgment of 30 October 1997 (Article 50) the Court:

- held, by eight votes to one, that the Government of the respondent State was to pay, within three months, in respect of non-pecuniary damage, to Mr van Mechelen, 30 000 Dutch guilders; to Mr Johan Venerius, 25 000 Dutch guilders; to Mr Willem Venerius, 25 000 Dutch guilders; to Mr Pruijmboom, 25 000 Dutch guilders;

- held, unanimously, that the Government of the respondent State was to pay, within three months, in respect of costs and expenses incurred in the proceedings for obtaining just satisfaction under Article 50, to Mr van Mechelen, Mr Johan Venerius and Mr Willem Venerius jointly, 2 000 Dutch guilders plus any value-added tax that may be payable; and to Mr Pruijmboom, 2 000 Dutch guilders plus any value-added tax that may be payable;

- held, unanimously, that simple interest at an annual rate of 5% should be payable on those sums from the expiry of the above-mentioned three months until settlement;

- rejected, unanimously, the remainder of the applicants’ claims for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Art i cle 54 of the Convention;

Having invited the Government of the respondent State to inform it of the mea s ures which had been taken in consequence of these judgments, having regard to the Netherlands’s obligation under Article 53 of the Conve n tion to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the Government of the respondent State gave the Committee information about the measures taken with a view to remedying the applicants' situation and preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 16 June 1997 and 29 December 1997, within the time-limit set, the Government of the respondent State paid the a p plicants the sums provided for in the judgments of 23 April 1997 and 30 October 1997,

Declares, after having taken note of the information supplied by the Government of the Netherlands, that it has exe r cised its functions under Article 54 of the Convention in this case.

Appendix to Resolution DH (99) 124

Information provided by the Government of the Netherlands during the examination of the Van Mechelen and others case

by the Committee of Ministers

The Government of the Netherlands recalls, as regards individual measures, that the applicants were provisionally released on 25 April 1997 on the orders of the Minister of Justice, and subsequently, by letter of 22 July 1997, informed that they would not be required to serve the remainder of their sentences.  Furthermore, the reasons why the sentences were not executed in their entirety are mentioned in their criminal records.

With regard to general measures, the Government of the Netherlands recalls that on 1 February 1997, subsequent to the facts of the case, an Act of 11 November 1993 ( Staatsblad 1993, No. 603) entered into force, adding a number of detailed provisions relating to the protection of witnesses to the Code of Criminal Procedure.  The government recalls that the Court in its judgment of 23 April 1997 made positive reference to this legislation.  The government has informed the police, the public prosecution service and the judiciary that in cases of this kind, the alternative measures in the above-mentioned act should be considered in the light of the judgment in the case of Van Mechelen and others, taking account of the fact that only witnesses who were actually threatened should be in a position to claim complete anonymity and of police officers' special role in society.  The domestic courts are expected to take due account of this, considering the direct effect given to the case law of the Court in the Dutch legal order. Furthermore, the judgment has been discussed and analysed at length in numerous Dutch legal journals.

The Government considers that the information provided above shows that the Netherlands has taken the necessary measures to redress the applicants' situation and to prevent further violations similar to that in the present case.  Accordingly, the Netherlands has complied with its obligations under Article 53 of the Convention in respect of this case.