Přehled
Rozhodnutí
AS TO THE ADMISSIBILITY OF
Application No. 20341/92
by H.K.
against the Netherlands
The European Commission of Human Rights sitting in private on 6
January 1993, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 July 1992 by
H.K. against the Netherlands and registered on 21 July 1992 under file
No. 20341/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch citizen, born in 1952 and resident at
D., the Netherlands. He is represented before the Commission by Mr.
C.F. Korvinus, a lawyer in Amsterdam.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 4 August 1989 the applicant was arrested in the Netherlands
on suspicion of having participated in the export of about six kg. of
heroin from the Netherlands to France. On the same day six Dutch
citizens, who had about six kg. of heroin in their possession, were
arrested in France. Two of them - M. and L. - told the French police
that they had acted upon the instructions of the applicant.
The applicant consistently denied the accusations made by M. and
L. He asked the investigating judge (rechter-commissaris) in Amsterdam
that M. and L. be interrogated by his lawyer by way of a commission
rogatory.
The investigating judge addressed to the French authorities a
commission rogatory in order to have M. and L. heard as witnesses. He
repeatedly asked the French authorities to allow the applicant's lawyer
and the public prosecutor to attend this hearing. The latter request
was rejected by the French authorities by reference to French law which
did not allow their presence.
The investigating judge informed the applicant's lawyer of the
position taken by the French authorities and gave him the opportunity
of formulating written questions which would be put to M. and L. at the
time of their hearing in France. However, the lawyer refused to avail
himself of this opportunity.
In October 1989 M. and L. were heard in France in the presence
of two Dutch policemen and an interpreter.
On 7 February 1990 the Regional Court (Arrondissementsrechtbank)
of Amsterdam convicted the applicant of offences against the Opium Act
(Opiumwet) and sentenced him to five years' imprisonment.
In its judgment, the Regional Court noted that the six persons
arrested in France had been heard under oath in the presence of two
Dutch police officers and an interpreter; that the investigating judge
had twice requested that the French judicial authorities should allow
the applicant's lawyer to attend these hearings, in particular the
hearings of M. and L., but that the French authorities had been unable
under French law to allow a foreign lawyer, in the present case the
applicant's lawyer, or indeed a foreign public prosecutor to be
present; that the six persons had been heard earlier by French police
officers and that minutes of these hearings had been made available;
that the investigating judge had informed the applicant's lawyer of the
negative decision of the French authorities and had offered the lawyer
an opportunity to formulate written questions to the six persons, which
would be given to the two Dutch police officers who would attend the
hearing; but that the applicant's lawyer had not been prepared to avail
himself of this opportunity.
The Regional Court considered that in those circumstances there
was no reason not to use the minutes of the interrogations of the six
witnesses as evidence, having regard also to the fact that the
applicant's lawyer had not availed himself of the opportunity to put
questions in writing to these witnesses.
The Regional Court's judgment also contains an extensive account
of the evidence in the case. M.'s and L.'s statements were an
important part of that evidence, but reference was also made to the
statement made by the applicant himself, who admitted that he knew M.
and L. and that he had frequently travelled with M. to Paris, and to
certain tapped telephone conversations which gave rather clear
indications of the applicant's involvement in the planning of narcotics
export to France.
The applicant appealed against the Regional Court's judgment to
the Court of Appeal (Gerechtshof) of Amsterdam. He again referred to
the fact that the statements of the six witnesses in France had not
been made in circumstances which respected the rights of the defence
and claimed that, in these circumstances, the statements of the six
persons should not be used as evidence against him.
At the request of the defence, the Court of Appeal adjourned the
proceedings in order to request the French authorities, on the basis
of Article 11 of the European Convention on Legal Assistance in
Criminal Matters, to transfer M. and L. temporarily to the Netherlands
for the purpose of hearing them during the trial against the applicant.
However, this request was rejected by the French Minister of Justice
on 2 January 1991.
In its judgment of 20 February 1991, the Court of Appeal referred
to all the efforts which had been made by the Regional Court and the
Court of Appeal to make it possible for the defence to put questions
directly to the witnesses. The Court of Appeal also mentioned that the
applicant's lawyer had declared, at a hearing on 6 February 1991, that
he would not be prepared to go to France in order to interrogate M. and
L. in the applicant's presence, unless the applicant was released from
detention on remand and given assurance that he would not be arrested
or prosecuted in France. On the basis of all these facts, the Court
of Appeal considered that the use of the minutes of the statements made
to the French police, would not be contrary to Article 6 of the
Convention.
The Court of Appeal also enumerated the evidence in the case,
which consisted primarily of the declarations of the witnesses in
France. Reference was also made to a finding that these witnesses had
telephoned several times from their hotel to the Netherlands and that
a number of these calls had been to the applicant's telephone number.
However, no reference is made in the Court of Appeal's judgment to the
contents of the applicant's telephone conversations which had been
tapped. The Court of Appeal further mentioned as evidence the
applicant's own declaration before the Court of Appeal, in which he had
admitted that he knew certain persons suspected of being involved in
the drug traffic, including M. and L. He had also admitted that he
had rented a car for M. in the beginning of August 1989 and that he
had, on 3 August, prolonged the contract regarding the car by one day,
i.e. to 4 August 1989. The Court of Appeal considered that the
offences with which the applicant had been charged were proven and
determined the sentence at six years' imprisonment.
After the applicant had appealed to the Supreme Court (Hoge
Raad), the Advocate-General (Procureur-Generaal) dealt in his
conclusions extensively with the issue under Article 6 of the
Convention. He stated that the defence had in principle a right to
interrogate the witnesses and that the Dutch Courts had made
considerable efforts to make such interrogation possible. However, the
French authorities had refused both to let the applicant's lawyer
attend a hearing of the witnesses in the course of the execution of a
commission rogatory and to allow the provisional transfer of the
witnesses to the Netherlands. The Advocate-General pointed out that
alternatives had also been suggested by the Dutch courts, namely to put
questions in writing or to arrange for the applicant's lawyer to put
questions to the witnesses in France in the applicant's presence.
However, the lawyer had rejected the first suggestion and had, in
regard to the second suggestion, set up conditions which were
unreasonable.
The Advocate-General further noted that in the present case there
was no question of anonymous witnesses but of persons who were
personally acquainted with the applicant. Although their statements
were important as evidence, they were not the only evidence, but they
were supported by other evidence. The Advocate-General then made a
comparison with a witness who had died and stated that it would be
wrong to hold that in such a case declarations made while the witness
was still alive could in no circumstances be used as evidence. The
present situation, where the witnesses were not available to the Dutch
courts, could be looked at in a similar way.
On 12 May 1992 the Supreme Court rejected the appeal. In its
judgment the Court quoted the reasoning of the Court of Appeal and
added that the statements of the witnesses M. and L. found sufficient
support in the other evidence in the case. For these reasons the Court
of Appeal had not violated the relevant provisions of Dutch law or of
the European Convention on Human Rights.
COMPLAINTS
The applicant alleges violations of Article 6 paras. 1 and 3 (d)
of the Convention. He considers that the principle of equality of arms
was violated in view of the fact that neither the applicant nor his
lawyer had the opportunity of putting questions to the witnesses. Nor
were the witnesses heard by an investigating judge or a court. They
were only heard by the French police in the presence of Dutch police
officers. The applicant adds that these statements were the decisive
evidence against him.
THE LAW
The applicant alleges violations of Article 6 paras. 1 and 3 (d)
(Art. 6-1, 6-3-d) of the Convention, which provide as follows:
"1. In the determination (...) of any criminal charge
against him, everyone is entitled to a fair (...) hearing
(...) by an independent and impartial tribunal (...)
3. Everyone charged with a criminal offence has the
following minimum rights:
(...)
d. to examine or have examined witnesses against him and to
obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him;"
He maintains that his conviction was based mainly on the
statements made to the French police by the Dutch citizens arrested in
France and that, in respect of this evidence, the principles underlying
Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) had not been respected,
since neither he nor his lawyer had had the opportunity of attending
any hearing of these persons and of putting questions to them.
The Commission notes that the guarantees in para. 3 of Article
6 are specific aspects of the right to a fair trial set forth in para.
1 (Art. 6-3, 6-1) of that Article. The complaint made in the present
case should therefore be examined under the two paragraphs taken
together.
According to the case-law of the European Court of Human Rights,
all the evidence in a criminal case must normally be produced in the
presence of the accused at a public hearing with a view to adversarial
argument. However, a witness must not in all circumstances be heard
in court; statements made before the trial may in some cases be invoked
as evidence, provided that the rights of the defence have been
respected. This means that the defendant shall at some stage have been
given an opportunity to challenge and question a witness against him
(Eur. Court H.R., Asch judgment of 26 April 1991, Series A vol. 203,
para. 27).
In the present case, it appears that the applicant and his lawyer
were at no stage confronted with the witnesses and had therefore no
opportunity of putting questions to them. At the same time, it is
clear that the Dutch courts made considerable efforts to make it
possible for the defence to attend a hearing of the witnesses either
in France or in the Netherlands and that these attempts failed due to
the negative attitude taken by the French authorities. The applicant's
lawyer was also offered the opportunity of formulating written
questions which would be put to the witnesses when they were heard in
France but he did not make use of this possibility.
In such a situation, where a confrontation with the witnesses
proves impossible, it cannot as a rule be considered a violation of
Article 6 (Art. 6) to invoke the statements made by the witnesses as
evidence, although the circumstances in which the statements were made
call for particular caution in the evaluation of such evidence. It may
nevertheless be of importance, in particular when combined with other
evidence.
In the present case it is clear that the statements made by M.
and L. before the French police were of considerable importance for the
Dutch courts when determining the criminal charge against the
applicant. However, these statements were not the only evidence
against the applicant. The Court of Appeal also referred to the
applicant's own admission that he knew M. and L. and had rented a car
for M. a few days before M.'s arrest in France. The Court of Appeal
further indicated that it had been established that the six Dutch
citizens arrested in France, while in possession of a large quant
of heroin, had, before their arrest, repeatedly telephoned from their
hotel in France to the applicant's telephone number in the Netherlands.
In these circumstances, and having regard in particular to the
fact that it was impossible for the Dutch courts to arrange a hearing
of the six witnesses which could be attended by the applicant and his
lawyer, the Commission considers that the Dutch courts were justified
under Article 6 (Art. 6) of the Convention to take into account the
statements made by these witnesses to the French police and to evaluate
this evidence which had been invoked in the case.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)