Search
document

Document text Analytics

CASE OF KOSTOVSKI AGAINST THE NETHERLANDS

Doc ref: 11454/85 • ECHR ID: 001-55618

Document date: June 9, 1994

Inbound citations: 0
•
Cited paragraphs: 0
•
Outbound citations: 0

CASE OF KOSTOVSKI AGAINST THE NETHERLANDS

Doc ref: 11454/85 • ECHR ID: 001-55618

Document date: June 9, 1994

Cited paragraphs only

The Committee of Ministers, under the terms of Article 54

(art. 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 case of Kostovski against the Netherlands

delivered on 20 November 1989 and 29 March 1990 and transmitted

the same days to the Committee of Ministers;

Recalling that the case originated in an application against

the Netherlands lodged with the European Commission of Human

Rights on 18 March 1985 under Article 25 (art. 25) of the

Convention by Mr Slobodan Kostovski, a Yugoslav national, who

complained of not having had a fair trial, notably in that he was

not given the opportunity to have questions put to the anonymous

witnesses and in that he was unable to challenge their

statements;

Recalling that the case was brought before the Court by the

Commission on 18 July 1988 and by the Government of the

Netherlands on 15 September 1988;

Whereas in its judgment of 20 November 1989 the Court:

- held, unanimously, that there had been a violation of

paragraph 3.d taken together with paragraph 1 of Article 6

(art. 6-3-d, art. 6-1) of the Convention;

- held, by seventeen votes to one, that the question of the

application of Article 50 (art. 50) was not ready for decision;

Whereas in its judgment of 29 March 1990 the Court, after

having taken formal note of a friendly settlement reached by the

Government of the Netherlands and the applicant in respect of the

latter's claims under Article 50 (art. 50) and having found that

the settlement reached was "equitable" within the meaning of

Rule 53, paragraph 4, of the Rules of the Court, decided,

unanimously, to strike the case out of its list;

Having regard to the Rules adopted by the Committee of

Ministers concerning the application of Article 54 (art. 54) of

the Convention;

Having invited the Government of the Netherlands to inform

it of the measures which had been taken in consequence of the

judgments of 20 November 1989 and 29 March 1990, having regard

to its obligation under Article 53 (art. 53) of the Convention

to abide by it;

Whereas, according to the above-mentioned friendly

settlement, it has been decided that the applicant would receive

the sum of 150 000 Dutch guilders as just satisfaction for the

non-pecuniary damage represented by his detention in the

Netherlands;

Whereas, during the examination of the case by the Committee

of Ministers, the Government of the Netherlands gave the

Committee information about the measures taken in consequence of

the judgments, which information appears in the appendix to this

resolution;

Having satisfied itself that the Government of the

Netherlands has paid the applicant the sum provided for in the

friendly settlement of 29 March 1990,

Declares, after having taken note of the information

supplied by the Government of the Netherlands, that it has

exercised its functions under Article 54 (art. 54) of the

Convention in this case.

Appendix to Resolution DH (94) 47

Information provided by the Government of the Netherlands

during the examination of the Kostovski case

by the Committee of Ministers

A number of modifications to the Code of Criminal Procedure

introduced by the Act of 11 November 1993 (Staatsblad 603/1993),

which entered into force on 1 February 1994, provide new

regulations as to who may testify without having to reveal his

identity and as to the methods to be used in order to safeguard

the rights of the accused in case such testimony is to be used

in criminal proceedings. The Government of the Netherlands

considers that these changes will prevent the repetition of the

kind of violation of Article 6, paragraphs 1 and 3.d (art. 6-1,

art. 6-3-d), found by the Court in the Kostovski case.

The persons who may testify without revealing their name,

age, profession, place of residence or their relation to the

accused are defined in Article 190. These persons are on the one

hand those who fall within the category of "threatened witnesses"

(as defined in Articles 136.c and 226.a) and, on the other, those

who may, as a result of their testimony, encounter problems or

be hindered in the exercise of their profession.

Whether or not a person is to be entitled not to reveal his

identity is decided by the investigating judge after having heard

the witness himself, the prosecution and the defence. The

decision is subject to appeal (Article 226.a).

The procedure for taking evidence from a "threatened

witness" is laid down in Article 226.b-f: The hearing is

conducted by the investigating judge who may order that the

defence not be present at the interrogation, in which case the

prosecution is also excluded from the hearing. The defence and

the prosecution must, however, subsequently be informed of the

witness' statement and be offered an opportunity to put questions

of their own, either by some means of telecommunication or in

writing. If the investigating judge does not allow the answer

to a question to be communicated, the transcript of the hearing

shall simply indicate that the question was answered.

If the defence requests the hearing of a "threatened

witness" at the trial, the evidence shall be taken by the

investigating judge in the manner outlined in Article 226.

The statements of an anonymous witness may only be accepted

at the trial if the person concerned has been designated as a

"threatened witness" and if the crime at issue is severe enough

to justify pre-trial detention and constitutes, in view of the

nature of the crime, the organised nature of the criminal

activities or the connection with other crimes committed by the

accused, a serious breach of the legal order (Article 342). The

statements made by a "threatened witness" pursuant to Article 226

is read out at the trial hearing and is considered as having been

made there (Article 295).

Statements made by other anonymous witnesses may only be

used if there is strong corroborating evidence and the defence

has not asked the witness to be interrogated (Article 334).

Statements made by "threatened witnesses" or persons whose

identity may not be revealed shall not by themselves - without

corroboration from other evidence - constitute proof of the

accused's guilt (Article 344.a). In addition, if the statement

from such a person is used as evidence, the judgment must

indicate the underlying reasons (Article 360).

LEXI

Lexploria AI Legal Assistant