Communicated on 9 March 2015

THIRD SECTION

Application no. 41596/13 Johnny BREIJER against the Netherlands lodged on 17 June 2013

STATEMENT OF FACTS

1. The applicant, Mr Johnny Breijer, is a Dutch national, who was born in 1963 and lives in Amsterdam. He is repres ented before the Court by Mr W. Ausma, a lawyer practising in Utrecht.

A. The circumstances of the case

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

3. The applicant was suspected of drugs offences.

4. In the investigation preceding the court proceedings, one X stated on 1 December 2005, when questioned by police, that the applicant had picked up one kilogram of heroin from him, for which he would pay 12,000 or 12,500 euros (EUR). X had stated that the applicant had, however, brought back the heroin one or two days later.

5. X had been summoned to appear as a witness before the investigating judge ( rechter-commissaris ) on 16 October 2008. He appeared, but invoked a right of testimonial privilege ( verschoningsrecht ).

6. The public prosecutor ( officier van justitie ) summoned X to appear as a witness before the Regional Court on 7 November 2008. X again invoked a right of testimonial privilege, stating inter alia :

“I no longer want to testify, because I have been threatened. I invoke my right of testimonial privilege with regard to the question whether these threats came from the direction of the accused.”

7. By judgment of 21 November 2008 the Haarlem Regional Court ( rechtbank ) convicted the applicant under the Opium Act ( Opiumwet ) of having transported and delivered about one kilogram of heroin. The applicant was sentenced to one year ’ s imprisonment.

8. The Regional Court considered it to be proven that the applicant had collected a kilogram of heroin from X, which drugs he had taken back to X two days later. The court based its decision inter alia on the statement made by X to the police. It held that that statement could be used in evidence considering that in it, X had also incriminated himself, that X had not withdrawn this statement and that it was corroborated by various other items of evidence, including police observations and a taped conversation between X and the applicant.

9. The applicant filed an appeal against the judgment of the Regional Court.

10. During the hearing of the Amsterdam Court of Appeal ( gerechtshof ) of 16 March 2010 X appeared as a witness. The President of the Court of Appeal established that X had been finally convicted of involvement in the offence with which the applicant was charged and that, therefore, X was not entitled to testimonial privilege. Even so, X refused to testify. When questioned, X stated, inter alia :

“I am very afraid that I will get into trouble by making a statement. ... I worry a lot about what has happened in the past and about the statements I have made in the A. investigation [a large-scale police investigation into drugs offences which led to X being convicted] . Since I have been released from prison I am being threatened, apparently in order to prevent me from testifying again in this case and in other cases.”

11. The Court of Appeal subsequently ordered the continuation of the hearing in camera and in the absence of the applicant in order to question X about the nature of the alleged threats. X stated, inter alia :

“You ask me by whom I am being threatened. If I tell you that I will be in greater trouble still. I am prepared to say why and how I have been threatened. ... The second reason why I have been threatened is because I talk too much in court. They tell me to keep my mouth shut. ... You ask me whether I have been told that I should not talk in the case in which I am now appearing as a witness. Yes, I have been told that. I have received serious threats; I fear for the life of my wife and children. ... I have been threatened by various persons. ... I have not been beaten up, but I have been threatened verbally. I have been approached by persons I do not know. ... You ask me whether, prior to today ’ s hearing, I have received threats relating concretely to the testimony which I am to give today. I do not wish to appear disrespectful but I really do not want to say anything about these things. ... The threats started two months after my arrest. ... In addition, when I was imprisoned unknown persons visited my brother. They told my brother that I should keep my mouth shut. In the last six months I was threatened twice by two unknown persons. ... Two months ago I heard that these men were looking for me again. ... You ask me whether I have been threatened by the accused. I will not say anything about that either. ... I do not want to say who has threatened me. ...”

12. Following deliberations in private ( raadkamer ), the applicant was re-admitted to the court room and he was informed of what had occurred. In reply to further questions from the President, X stated that he still did not want to testify in relation to the offence of which the applicant was suspected. He further replied inter alia as follows to questions put by counsel for the applicant:

“You ask me whether I have ever been threatened by [the applicant]. I have not said such a thing. I cannot tell you whether or not I have ever been threatened by [the applicant]. ...”

13. In reply to questions put by one of the judges X replied:

“You ask me whether I spoke the truth when I made the statement of 1 December 2005. I cannot reply to [that question], having regard to the obstacles about which I spoke earlier.”

14. By judgment of 2 April 2010 the Court of Appeal convicted the applicant of having transported about one kilogram of heroin. It based its judgment inter alia on the applicant ’ s statement made at the hearing to the effect that he had talked to X about heroin; the statement made by X to the police; and an intercepted telephone convers ation between the applicant and X. The Court of Appeal considered, moreover, the following:

“The court notes that, both before the investigating judge on 16 October 2008 and at the first instance hearing on 7 November 2008, [X] has invoked his right of testimonial privilege and refused to make further statements relating to the criminal proceedings against the accused because he claimed that he was being threatened. At the hearing on appeal [X] again declared that he was being threatened in relation to the incriminating statements he had made in case A. and with a view to statements possibly still to be made by him against suspects in case A. ... [X] has subsequently, in no uncertain terms and repeatedly, stated that he is not willing to testify about the role of named persons in the A. investigation, nor about the role of the accused [in the present proceedings]. ... Given that, on the one hand, the defence has had the opportunity to question X at the appeal hearing on 16 March 2010 and, on the other, that this witness has stated consistently from 16 October 2008 onwards that he is under pressure of threats and for that reason no longer willing to testify about the role of named persons in the A. investigation, even when he was no longer entitled to a right of testimonial privilege, as at the hearing of 16 March 2010, the court deems a renewed summoning of [X], who is to be regarded as an unwilling witness, pointless and, therefore, unnecessary. ...”

15. The Court of Appeal sentenced the applicant to a partially suspended term of twelve months ’ imprisonment.

16. On 7 February 2012 the applicant lodged an appeal on points of law ( cassatie ) with the Supreme Court ( Hoge Raad ) . He submitted four grounds of appeal ( cassatiemiddelen ) in which he raised inter alia the following complaints: firstly, that the Court of Appeal had mistakenly concluded that the statement given by X to the police was sufficiently supported by other evidence to prove that the applicant had transported the drugs; and secondly, that it had failed to present proper reasoning as to why it refused to summon X again as a witness, and if need be to commit him for failure to comply with a judicial order.

17. In his advi s ory opinion ( conclusie ), the Procurator General ( Procureur Generaal ) to the Supreme Court– referring to the Court ’ s judgments in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, ECHR 2011) – expressed the view that the second leg of the applicant ’ s grounds of appeal should be upheld. He considered that the Court of Appeal had failed to make a reasonable effort to secure the applicant ’ s right to examine a witness, thus le ading to a violation of Article 6 § 3 (d) of the Convention. In particular, the Procurator General considered that the Court of Appeal had omitted to determine whether there were objective grounds, supported by evidence, for the fear which the witness had expressed. Moreover, the Court of Appeal had failed to examine whether all available alternatives for the hearing of X would be inappropriate or impracticable.

18. On 29 January 2013 the Supreme Court dismissed the applicant ’ s appeal on points of law and confirmed the judgment of the Court of Appeal. In its reasoning the Supreme Court held that, although the applicant had not been able to examine X, as the latter had refused to testify, and had therefore not been able fully to exercise his right under Article 6 § 3 (d), the Court of Appeal had been entitled to rely on the statement made by X since this statement was sufficiently supported by other evidence to prove that the applicant had transported the drugs, and since this other evidence related to those parts of X ’ s statement which the applicant disputed. It further held that the Court of Appeal had – considering the circumstances of the case – not been required to summon the witness again, as the applicant had had sufficient opportunity to question X. The Supreme Court finally held that the cassation proceedings had lasted too long, for which it compensated the applicant by reducing his prison sentence by three weeks.

B. Relevant domestic law

Article 219 of the Code of Criminal Procedure ( Wetboek van Strafvordering ) provides, in so far as relevant, as follows:

“A witness shall be excused the duty to answer a question put to him if in so doing he would expose himself ... to the risk of criminal prosecution.”

COMPLAINT

The applicant complains of a violation of Article 6 §§ 1 and 3 (d) of the Convention in that he was unable to examine or have examined a witness against him whose evidence was used to secure his conviction. In this respect he further argues that his conviction was based to a decisive degree on the witness statement in issue.

QUESTIONS TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charge against him, as required under Article 6 § 1 of the Convention? In particular, was the applicant given an adequate opportunity to examine X, a principal witness against him, as required under Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention (see, among many other authorities, Lucà v. Italy , no. 33354/96, § 39, ECHR 2001 ‑ II; and Al ‑ Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011 )? In particular:

(a) Did the domestic courts verify whether there were objective grounds for the fear expressed by X? If not, were there sufficient self ‑ evident reasons not to do so?

(b) Did the domestic courts examine whether all available alternatives for hearing X would be inappropriate or impracticable? In the negative, should the courts have examined these?

(c) Was the applicant ’ s conviction based solely or to a decisive degree on the statement of X?