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BAEGEN v. THE NETHERLANDSDISSENTING OPINION OF Mr. E. BUSUTTIL

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Document date: October 20, 1994

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BAEGEN v. THE NETHERLANDSDISSENTING OPINION OF Mr. E. BUSUTTIL

Doc ref: • ECHR ID:

Document date: October 20, 1994

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DISSENTING OPINION OF Mr. E. BUSUTTIL

JOINED BY Mr. L. LOUCAIDES

I am unable to share the opinion of the majority of the

Commission that there has been no violation of Article 6 paras. 1

and 3(d) of the Convention.

This is a case where the applicant was convicted of rape and

sentenced to twelve months' imprisonment on the strength of

statements made by Ms. X., three to the police and one before the

investigating magistrate, the reports of the police officers who

had taken down her statements, the statement of Ms. X.'s mother

to the police and the statement of the co-accused to the police.

In regard to this evidence, it must be noted that Ms. X.'s

mother repeated in her statement the information her daughter had

given her about the incident in question. Similarly, the police

officers could only repeat what Ms. X. had told them. The

co-accused stated that the applicant had intercourse with Ms. X.

in the car in his presence but that this had taken place with her

acquiescence. In the result, therefore, the applicant was

convicted on the basis of Ms. X.'s own statements to the police

and the investigating magistrate and of what Ms. X. had recounted

to her mother. No other evidence of rape was relied upon by the

Dutch courts.

Thus, in the present case, two anonymous persons, Ms. X. and

her mother, had only been heard by the police officers in charge

of the case, who later gave evidence in court regarding their

statements, but were not examined by the trial courts. The

examining magistrate did question Ms. X. but was not aware of her

identity, nor were the trial courts. As for the applicant's

refusal to undergo blood and saliva tests, it is only necessary

to recall that it does not lie upon the accused to prove his

innocence but upon the prosecution to establish his guilt beyond

reasonable doubt.

In principle, according to the case-law of the Convention

organs, all evidence must be produced in the presence of the

accused at a public hearing with a view to adversarial argument.

However, as the European Court has determined, there can be

exceptions to this rule provided that the rights of the defence

are respected. Broadly speaking, these rights require that the

defence be given an adequate and proper opportunity to challenge

and question hostile witnesses, either when they were making

their statements or at some later stage of the proceedings.

In the instant case, no such opportunity was afforded to the

applicant since at no stage of the proceedings could the

anonymous witnesses be questioned directly by him or on his

behalf. In addition, the scope for indirect questioning was

considerably restricted by the decision taken to preserve their

anonymity. In such a situation the handicaps confronting the

applicant were compounded in that, being unaware of the identity

of the witnesses, the defence was unable to demonstrate

prejudice, hostility or unreliability. Moreover, the courts were

unable to observe the demeanour of the anonymous witnesses and

were thereby precluded from making their own assessment of their

credibility.

As the European Court commented in Kostovski v. The

Netherlands (Judgment of 20 November 1989, Series A Vol. 166,

paras. 42-44), a case bearing a close affinity to this one, "the

dangers inherent in such a situation are obvious" (para. 42).

The Court added that "the right to a fair administration of

justice holds so prominent a place in a democratic society that

it cannot be sacrificed to expediency " (para. 44).

In these circumstances, it cannot be said that the

limitations imposed on the defence were counterbalanced by the

procedures followed by the Dutch judicial authorities. Indeed,

in my view, the constraints on the rights of the defence were

such as to be irreconcilable with the guarantees embodied in

Article 6.

I conclude, therefore, that there was a violation of

Article 6 paras. 1 and 3(d) of the Convention in this case.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

6 April 1990 Introduction of the application

11 June 1990 Registration of the application

Examination of admissibility

5 November 1990 Commission's decision to adjourn the case

13 January 1993 Commission's decision to communicate the

case to the respondent Government and to

invite them to submit observations on the

admissibility and merits

15 January 1993 Commission's adoption of questions to be

put to the parties

16 April 1993 Government's observations

30 July 1993 Applicant's observations in reply

29 November 1993 Commission's decision to declare the

application admissible and to put

additional questions to the parties

9 December 1993 Commission's adoption of the text of the

decision on admissibility and the

additional questions

Examination of the merits

20 December 1993 Decision on admissibility and additional

questions transmitted to parties.

Invitation to parties to submit further

observations on the merits

1 March 1994 Applicant's observations

2 March 1994 Government's observations

9 April 1994 Commission's consideration of the state of

proceedings

10 May 1994 Government's further observations

9 April 1994 Commission's consideration of the state of

proceedings

11 October 1994 Commission's deliberations on the merits,

final vote and consideration of the text

of the Report

20 October 1994 Adoption of the Report

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