Published on 2 January 2023

THIRD SECTION

Application no. 46836/18 Robert Henri ZEGERIUS against the Netherlands lodged on 27 September 2018 communicated on 5 December 2022

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s complaint under Article 6 §§ 1 and 3 (d) of the Convention that his conviction of co-perpetration of a burglary preceded by violence and threat of violence was to a decisive extent based on a statement made by N. to the police, whereas he was unable to examine that witness in the proceedings before the Court of Appeal.

Witness N. was questioned in the proceedings at first instance by the investigating judge, in the presence of the defence, but he refused to answer any questions, claiming that his girlfriend had been threatened.

On appeal, the applicant did not request to question N. but asked to question the witnesses proposed by his co-defendants. The request by a co ‑ defendant to question N. was granted by the appellate court. However, it turned out that he had returned to Poland and despite a request for legal assistance to the Polish authorities, it had not been possible to trace N.

The Court of Appeal relied on the untested statement made by N. to the police as evidence for the applicant’s conviction. It considered that tapped telephone conversations and covertly recorded conversations constituted “strong indications” of the applicant’s involvement in the criminal offences he had been charged with and that confirmation of these indications was found in two witness statements, including that of N.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 (d) of the Convention (see Schatschaschwili v. Germany (GC), no. 9154/10 , §§ 100-31, ECHR 2016 and Keskin v. the Netherlands , no. 2205/16, §§ 38-51, 19 January 2021)?