Communicated on 18 November 2014

THIRD SECTION

Application no. 43108/12 Khaliel BASARAT against the Netherlands lodged on 5 July 2012

STATEMENT OF FACTS

1. The applicant, Mr Khaliel Basarat , is a Netherlands national, who was born in 1945 and lives in Amsterdam . He is represented before the Court by Ms C.M. Peeperkorn , a lawyer practising in Amsterdam .

A. The circumstances of the case

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

1. Background to the case

3. On 12 March 2007 the applicant was found guilty of having provided taxi services without holding the required taxi license. He was sentenced to pay a fine of 2,200 euros (EUR), or to undergo 41 days ’ detention in lieu; of this sentence, EUR 1,100 or 22 days ’ detention were suspended.

4. On 5 June 2007 Amsterdam police officers saw the applicant drive a man and a woman for a short distance in his car. The woman, Ms B., made a statement to the police to the effect that she had engaged the applicant ’ s services as an unlicensed taxi driver, having paid EUR 2.50 for a brief journey. The man ’ s identity was not established.

5. The applicant was charged with a second offence of providing unlicensed taxi services. Throughout the ensuing criminal proceedings the applicant maintained that he had been approached by a man who had offered to buy his car and had given the man , and the woman accompanying him, a trial run. He denied having negotiated his services with Ms B.

2. Proceedings in the Regional Court

6. The applicant ’ s trial opened on 17 September 2007 before the single-judge chamber for economic offences ( economische politierechter ) of the Amsterdam Regional Court ( rechtbank ) . His counsel asked for Ms B. and the unknown man to be heard as witnesses. The hearing was then adjourned sine die for these witnesses to be summoned.

7. The trial was resumed on 18 April 2008. The applicant, absent for health reasons, was represented by his counsel. It emerged that Ms B., a foreign national, could not be found. Finding it unlikely that it would be possible for Ms B. to appear as a witness within an acceptable time frame, the Regional Court decided to proceed with the trial.

8. The applicant ’ s counsel argued that the only evidence suggesting that the applicant had in fact provided unlicensed taxi services was the statement taken from Ms B. by the police.

9. The Regional Court gave judgment immediately. It found that the applicant ’ s version of events, besides being incompatible with the statement taken from Ms B., lacked credibility. It also held the applicant ’ s previous conviction of the same offence against him . Finding the applicant guilty as charged, it sentenced the applicant to pay a fine of EUR 1,200. In addition it declared his car forfeit, along with EUR 12.82 in cash found on the applicant by the police and considered to be the proceeds of the offence in issue, and ordered the execution of the suspended portion of the sentence handed down on 12 March 2007.

3. Proceedings in the Court of Appeal

10. The applicant appealed to the Amsterdam Court of Appeal ( gerechtshof ).

11. The Court of Appeal ’ s hearing opened on 12 March 2010. As relevant to the case, the applicant ’ s counsel again asked for Ms B. to be summoned as a witness. The advocate general ( advocaat-generaal ) prosecuting recognised what she called the “obvious importance” of hearing Ms B., but stated that she had in the meantime been deported to Germany where she had lodged an asylum request. Her fate and current whereabouts were unknown. For that reason she asked the Court of Appeal to refuse counsel ’ s request and proceed with the case.

12. The Court of Appeal agreed to hear Ms B. and adjourned its hearing.

13. The hearing was resumed on 11 June 2010. The applicant was absent for health reasons.

14. The advocate general stated that attempts had been made to find Ms B., who might have been deported under another name, but that her whereabouts remained unknown. She expressed the view that without her evidence the applicant could not be convicted.

15. The applicant ’ s counsel restated his request to hear Ms B. as a witness. Relying on Article 6 of the Convention and citing this Court ’ s Lucà v. Italy judgment ( no. 33354/96, ECHR 2001 ‑ II ), h e argued that without her evidence, the conviction would be based “solely or to a decisive degree on depositions that [had] been made by a person whom the accused had had no opportunity to examine or have examined, whether during the investigation or at trial”.

16. The Court of Appeal decided to proceed without making any further attempt to hear Ms B.

17. The Court of Appeal delivered its judgment on 25 June 2010. It quashed the Regional Court ’ s judgment on technical grounds and, deciding afresh, again convicted the applicant. It decided, however, to spare him a sentence but declared the car and EUR 2.50 of the money seized from him forfeit. It also ordered the execution of the suspended portion of the sentence given him on 12 March 2007. Its reasoning included the following:

“The Court of Appeal is of the view that, although the defence ... has not at any stage had the opportunity to cross-examine (or cause to be cross-examined) Ms B., her statement can be admitted as evidence. The [applicant ’ s] involvement in the matters with which he is charged is after all sufficiently set out in [the official record of the police officers] in which the [applicant ’ s] noted observable activities as an unlicensed taxi driver ( snorder ) are set out and from which it appears that the reporting police officers were aware ex officio that the [applicant] had previously been convicted [of the offence of providing taxi services without the required license]. Ms B. ’ s statement merely bears out that the [applicant] on 5 June 2007 was once again offering his services as an unlicensed taxi driver.

On top of that, the Court of Appeal dismisses the [applicant ’ s] statement that this was a trial run to sell his car as lacking credibility, already because the passenger Ms B. makes no mention of this and it concerns a short trip, typical of the activity of an unlicensed taxi driver, from K. street to B. Street, for the consideration of a relatively low price, namely EUR 2.50.”

3. Proceedings in the Supreme Court

18. The applicant lodged an appeal on points of law ( cassatie ) with the Supreme Court ( Hoge Raad ). As relevant to the case before the Court, he complained, relying on Article 6 of the Convention, of the Court of Appeal ’ s decision to admit Ms B. ’ s statement as evidence.

19. On 1 November 2011 the Procurator General ( procureur -generaal ) to the Supreme Court submitted an advisory opinion recommending that the applicant ’ s appeal on points of law be accepted. He considered that since Ms B. had not been cross-examined by the defence, her statement could only be admitted as evidence if it was sufficiently corroborated by other evidence. This, in his view, was not the case: the other evidence available showed only that at the relevant time the police were targeting unlicensed taxi drivers, that the applicant ’ s car was seen with two passengers on board and that the passengers had alighted, that the applicant was known to have been previously convicted as an unlicensed taxi driver, and that the applicant was arrested. Although it was open to the courts below, within the limits set by the law, to dismiss a suspect ’ s statement as lacking credibility, the Court of Appeal had in the present case done so referring to the statement of Ms B.

20. The Supreme Court gave judgment on 10 January 2012. Disagreeing with the Procurator General, it found that Ms B. ’ s statement was sufficiently corroborated by the other evidence.

B. Relevant domestic law

21. Article 288 of the Code of Criminal Procedure ( Wetboek van Strafvordering ) provides as follows:

“1. The trial court can decide not to summon witnesses who have not appeared ... if it finds that:

a. it is unlikely that the witness will appear in open court within an acceptable time ( binnen een aanvaardbare termijn ) ... ”

COMPLAINT

22. The applicant complains under Article 6 of the Convention that he was convicted on the evidence of a witness whom he had not had the opportunity to cross-examine .

QUESTION TO THE PARTIES

Was the applicant able to examine witnesses against him , as required by Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011 ) ?