European Court of Human Rights

The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the Netherlands recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the Government’s application referred to Article 48 (art. 48). The object of the request and of the application was to obtain a decision as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 (art. 6) of the Convention.

In a letter of 18 May, the Deputy Secretary to the Commission informed the Registrar that the Delegate would present his observations at the hearing.

There appeared before the Court:

- for the Government

       Miss D.S. Van Heukelom, Assistant Legal Adviser,

                            Ministry of Foreign Affairs,                                        Agent,

       Mr J.L. De Wijkerslooth De Weerdesteijn, Landsadvocaat, Counsel,

       Mr J.E.E. Schutte, Ministry of Justice,

       Mr E.P. Von Brucken Fock, Ministry of Justice,                 Advisers;

- for the Commission

       Mr C.L. Rozakis,                                                                     Delegate;

- for the applicant

       Mrs T. Spronken, advocaat en procureur,                               Counsel,

Professor G.P.M.F. Mols, Professor of Criminal Law, University of Maastricht, Adviser.

The Court heard addresses by Mr De Wijkerslooth de Weerdesteijn for the Government, by Mr Rozakis for the Commission and by Mrs Spronken for the applicant, as well as replies to its questions.

AS TO THE FACTS

I.   THE PARTICULAR CIRCUMSTANCES OF THE CASE

In November 1980 the Amsterdam District Court (arrondissements- rechtbank) had declared admissible a request by Sweden for his extradition to stand trial for serious offences committed in Stockholm in September 1979, namely two armed robberies and assisting in an escape from a court building, involving in each case attempted manslaughter.

On 8 August 1981 the applicant escaped from Scheveningen prison together with one Stanley Hillis and others; he remained on the run until the following April.

Police suspicions centred on Stanley Hillis and his associates because, being on the run, they probably needed money and because some years previously Stanley Hillis had been directly involved in a robbery carried out at the same bank with exactly the same modus operandi as the 1982 raid. These suspicions were strengthened on 25 January, when the Amsterdam police received an anonymous telephone call from a man who said:

"A few days ago a hold-up took place at a bank in Baarn. Those responsible for the hold-up are Stanley Hillis, Paul Molhoek and a Yugoslav. Stanley Hillis and the Yugoslav escaped from prison in The Hague in August last year."

"On 26 January there appeared before me a man who for fear of reprisals desired to remain anonymous but whose identity is known to me. He stated as follows:

‘A few months ago four men escaped from the remand centre (huis van bewaring) in The Hague, among them a Yugoslav and an Amsterdamer. They are now living with an acquaintance of theirs in Utrecht. I do not know the address. They are also in touch with Paul Molhoek of The Hague. The Yugoslav and the Amsterdamer sometimes spend the night at Aad Denie’s home in Paul Krugerlaan in The Hague. Paul Molhoek sleeps there almost every night. The Yugoslav and the Amsterdamer now drive a blue BMW car; I do not know the registration number. Paul Molhoek drives a new white Mercedes sports car. The Yugoslav, the Amsterdamer and Paul Molhoek carried out a hold-up a few days ago on a bank in Baarn, in the course of which the staff of the bank were locked up. Aad Denie, who otherwise had nothing to do with the affair, takes Paul Molhoek to the two men in Utrecht every day because Paul Molhoek does not have a driving licence. Aad Denie drives a silver-grey BMW car, registration mark 84-PF-88.’

I wish to add that, after being shown various photographs included in the police file, he picked out photos of the following persons: Slobodan Kostovski ... as being the Yugoslav to whom he had referred; Stanley Marshall Hillis ... as being the Amsterdamer in question."

"On Tuesday 23 February 1982 there appeared before us a person who for security reasons wishes to remain anonymous but whose identity is known to us. He/She stated that he/she knew that Stanley Hillis, Slobodan Kostovski, Paul Molhoek and Aad Denie, who were known to him/her, were guilty of the armed raid on a branch of the Nederlandse Middenstands Bank at Nieuwstraat 1 in Baarn on or about 19 January 1982. According to the said person, the first three of the aforementioned persons had carried out the raid and Aad Denie had acted as driver or at least he had picked them up in a car after the raid.

The said person also stated that the proceeds of the raid, amounting to about Fl. 600,000, had been divided into more or less equal parts by Hillis, Kostovski and Molhoek and that Aad Denie had received a small part thereof. From what he/she said, this would have been about Fl. 20,000. The said person also stated that Hillis, Kostovski and Molhoek knew each other from when they were detained in Scheveningen prison.

Hillis and Kostovski escaped from the said prison on 8 August 1981 and Molhoek was released at a later date. The said person stated that Paul Molhoek lived most of the time with Aad Denie at Paul Krugerlaan 216 in The Hague. Hillis and Kostovski were said to have lived for a while at Oude Gracht 76 in Utrecht, which they had rented in another name. A brother of Paul Molhoek also lived there; he was called Peter. The said person stated in this connection that the Utrecht police had raided the said premises but had not found the above-mentioned people. He/she said that Hillis, Kostovski and Molhoek were in a room on a higher floor of the same building in the Oude Gracht at the time of the police raid. The police had not searched that floor. The person in question also stated that Hillis was now believed to be living in Amsterdam.

Paul Molhoek and Hillis were said to meet each other quite regularly there, near Amstel Station, which was their usual meeting place.

According to the person in question, Hillis, Kostovski and Molhoek were in possession of powerful weapons. He/she knew that Hillis and Kostovski each had a Sten gun among other things and that Paul Molhoek had a revolver, possibly a Colt 45.

The person interviewed by us stated that he/she might later be able to provide more details about the above-mentioned persons and the offences they had committed."

On his arrest Slobodan Kostovski was in possession of a loaded revolver. Subsequently, firearms were also found in the home of Paul Molhoek, who was arrested on 2 April, in the home of V. and in another room in the house previously searched in Utrecht.

Like the applicant, Stanley Hillis, Paul Molhoek, Aad Denie and V. all have very long criminal records.

"On 23 February 1982 I made a statement to the police in The Hague which was included in a report drawn up on 22 March 1982. You read out that statement to me. I declared that it is the truth and that I stand by it, on the understanding that I was not aware that the bank in Baarn was at No. 1 Nieuwstraat. My knowledge stems from the fact that both Stanley Hillis and Paul Molhoek, as well as Aad Denie, had all told me about the hold-up. They said that they had taken not only cash, but also American travellers’ cheques and Eurocheques. I myself saw a number of the Eurocheques."

On 22 June, as a result of those questions, the anonymous witness whom Mr Nuboer had heard was interviewed again, this time by Mr Weijsenfeld, an examining magistrate deputising for Mr Nuboer. The police were present but neither the public prosecutor nor the applicant or his counsel. The magistrate’s report of the hearing recorded that the witness - whose anonymity was respected on this occasion also - made the following sworn statement:

"I stand by the statement which I made on 8 April 1982 to the examining magistrate in Utrecht. My answers to the questions posed by Mrs Spronken are as follows.

I am not the person who telephoned anonymously to the police communications centre in Amsterdam on 25 January 1982, nor the person who made a statement on 26 January 1982 at the police station in The Hague. I did not state to the police that I knew that the bank was at Nieuwstraat 1 in Baarn. I knew that it was in Baarn, but not the street. I learned the latter from the police and it was included as being part of my own statement by mistake. Although Mrs Spronken did not ask this, I would add that I did not inform the municipal police in Utrecht.

As regards the questions posed by Van Straelen, I would in the first instance refer to the statement I have just made. I am acquainted with Hillis, Kostovski, Molhoek and Denie and have no doubts as to their identity."

In the event, only two of Mrs Spronken’s fourteen questions, most of which concerned the circumstances in which the witness had obtained his/her information, were answered. In this connection Mr Weijsenfeld added the following in his report:

"The questions sent in, including those from S.M. Hillis, which have not been answered were either not asked by me, the examining magistrate, in order to preserve the anonymity of the witness, or not answered by the witness for the same reason."

The witnesses heard in court included the examining magistrates Mr Nuboer and Mr Weijsenfeld (see paragraphs 15-16 above) and Mr Weijman, one of the police officers who had conducted the interview on 23 February (see paragraph 13 above). They had been called at the applicant’s request, but the court, pursuant to Article 288 of the Code of Criminal Procedure (see paragraph 25 (b) below), did not allow the defence to put to them certain questions designed to clarify the anonymous witnesses’ reliability and sources of information, where answers would have revealed the latter’s identity.

Mr Nuboer stated that he believed the witness he had heard on 8 April 1982, who had "made a favourable impression" on him; that he did not know the witness’s identity and considered the fear of reprisals advanced in support of his/her wish for anonymity to be a real one; that he believed the witness had made his/her statement to the police voluntarily; and that he had refused an offer by the police for him to interview the man they had seen on 26 January 1982 (see paragraph 11 above) as he could not guarantee the latter’s anonymity.

Mr Weijsenfeld stated that he considered to be "not unreliable" the witness - whose identity he did not know - whom he had interviewed on 22 June 1982 (see paragraph 16 above); and that he too regarded the witness’s fear of reprisals as well-founded.

Mr Weijman stated that, in his view, the person he had interviewed with a colleague on 23 February 1982 (see paragraph 13 above) was "completely reliable" because he/she had also given information on other cases which had proved to be correct. He added that certain parts of that person’s statement had been omitted from the official report in order to protect his/her identity.

In its judgments of 24 September 1982 the Utrecht District Court recognised, with regard to the use of the statements of the anonymous witnesses, that their sources of information could not be checked, that it could not form an independent view as to their reliability and that the accused were deprived of the possibility of being confronted with them. By way of justification for its decision nevertheless to use this material in evidence the court stated that it had been convinced of Mr Kostovski’s guilt, considering that the statements strengthened and partly complemented each other and having regard to the views it had heard as to the reliability of one of the anonymous witnesses (see paragraph 17 above). Having also noted that the applicant had previously been found guilty of similar offences, the court convicted him and his co-accused of armed robbery and sentenced each of them to six years’ imprisonment.

On 13 May the Court of Appeal had heard a number of the witnesses previously heard at first instance, who stood by their earlier testimony. Like the Utrecht District Court, it had not allowed certain questions by the defence to be answered, where this would have revealed the identity of the anonymous witnesses. The following statement had also been made to the Court of Appeal by Chief Superintendent Alferink of The Hague municipal police:

"Consultations take place before anonymous witnesses are interviewed. It is customary for me to ascertain the identity of the witness to be interviewed in order to assess whether he or she could be in danger. In this case the anonymous witnesses were in real danger. The threat was real. Both witnesses decided to make statements on their own initiative. The public prosecutor was contacted, but I cannot remember who it was. The testimony of anonymous witnesses is offered to the examining magistrate after consultation with the public prosecutor. Both anonymous witnesses made a reliable impression on me."

The Court of Appeal likewise did not hear the anonymous witnesses but, again contrary to a defence submission, considered the official reports of their interviews with the police and the examining magistrates to be admissible evidence. The court found that the witnesses, who had made their statements on their own initiative, had good reason to fear reprisals; noted that they had made a reliable impression on Mr Alferink and a reasonably reliable one on Mr Nuboer; and took into account the connections between, and the mutual consistency of, the statements in question.

II.   RELEVANT DOMESTIC LAW AND PRACTICE

A. The Code of Criminal Procedure

It is open to the public prosecutor, under Article 181 CCP, to request what is called - in order to distinguish it from the subsequent investigation at the trial - a "preliminary investigation", which it is the task of an examining magistrate to conduct. In that event the latter will hear the suspect, witnesses and experts as soon as possible and as often as is required (Article 185 CCP). Both the public prosecutor and defence counsel are, in principle, entitled to be present at those hearings (Articles 185 § 2 and 186) and, even if they are absent, to give notice of questions they wish to have put.

The preliminary investigation provides a basis for a decision with regard to the further prosecution of a suspect and also serves to clarify matters which cannot properly be investigated at the trial. The magistrate must act impartially, by collecting also evidence which might exculpate the suspect.

If the public prosecutor is of the opinion that the results of the preliminary investigation justify further prosecution, he will notify the suspect and refer the case to the court. The investigation at the trial will then follow.

Evidence in the third category is defined in Article 342 CCP, which reads:

"1. A statement by a witness is understood to be his statement, made in the investigation at the trial, of facts or circumstances which he himself has seen or experienced.

2.  The judge cannot accept as proven that the defendant has committed the act with which he is charged, solely on the statement of one witness."

(a) The president of the court must ask the witness to state, after his first names and surname, his age, occupation and address (Article 284 § 1 CCP); the same obligation is also laid, by Article 190 CCP, on an examining magistrate when he is hearing witnesses.

(b) Articles 284, 285 and 286 CCP make it clear that the accused is entitled to put questions to a witness. As a general rule witnesses are examined first by the president of the court; however, a witness who has not been heard during the preliminary investigation and has been called at the request of the defence will be examined first by the accused and only afterwards by the president (Article 280 § 3 CCP). In any event, Article 288 CCP empowers the court "to prevent a question put by the accused, counsel for the defence or the public prosecutor being answered".

(c) Article 292 CCP enables the president of the court to order an accused to leave the court-room so that a witness may be examined out of his presence. If such an order - for which reasons do not have to be given - is made, counsel for the defence may question the witness and "the accused shall be told immediately what has happened during his absence and only then will the investigation be resumed" (Article 292 § 2 CCP). Thus, on returning to the court-room the accused may avail himself of his right, under Article 285 CCP, to put questions to the witness.

"An earlier statement by a witness who, having been sworn in or admonished to speak the truth in accordance with Article 216 § 2, has died or, in the opinion of the court, is unable to appear at the trial shall be considered as having been made at the trial, on condition that it is read aloud there."

In connection with witnesses unable to appear at the trial, Article 187 CCP provides:

"If the examining magistrate is of the opinion that there are grounds for assuming that the witness or the expert will not be able to appear at the trial, he shall invite the public prosecutor, the defendant and counsel to be present at the hearing before him, unless, in the interest of the investigation, that hearing cannot be delayed."

"1. By written documents is understood:

1^o ...;

2^o official reports and other documents, drawn up in the lawful form by bodies and persons who have the proper authority and containing their statement of facts or circumstances which they themselves have seen or experienced;

3^o...;

4^o...;

5^o all other documents; but these are valid only in conjunction with the content of other means of evidence.

2.  The judge can accept as proven that the defendant has committed the act with which he is charged, on the official report of an investigating officer."

An anonymous statement contained in an official police report falls within the scope of sub-paragraph 2^o of paragraph 1 of this Article.

B. Criminal procedure in practice

(a) for a statement by a witness to be considered as having been made at the trial under Article 295 CCP (see paragraph 26 above), it is immaterial whether or not the examining magistrate has complied with Article 187 CCP (ibid.);

(b) a deposition by a witness concerning what he was told by another person (hearsay evidence) may be used as evidence, albeit with the utmost caution;

(c) it is permissible to use as evidence declarations made by the accused or by a witness to a police officer, as recorded in the latter’s official report.

C. The anonymous witness: case-law

However, with the increase in violent, organised crime a need was felt to protect those witnesses who had justification for fearing reprisals, by granting them anonymity. In a series of judgments the Supreme Court has made this possible.

In a judgment of 5 February 1980 (NJ 1980, 319), concerning a case where the examining magistrate had granted anonymity to and had heard a witness without the accused or his counsel being present, the Supreme Court held - following its judgment of 20 December 1926 (see paragraph 28 above) - that non-compliance with Article 187 CCP (see paragraph 26 above) did not prevent the magistrate’s official report being used in evidence, "albeit with the caution called for when assessing the probative value of such evidence". The same ruling was made in a judgment of 4 May 1981 (NJ 1982, 268), concerning a case where the witness had been heard anonymously by both the police and the examining magistrate; on that occasion the Supreme Court also held - in accordance with its above-mentioned judgment of 17 January 1938 - that the mere fact that the official reports of the hearings did not name the witness was not an obstacle to their utilisation in evidence, subject to an identical proviso as to caution.

It may be inferred from a judgment of 29 November 1983 (NJ 1984, 476) that the caution called for does not necessarily imply that anonymous witnesses must have been heard by the examining magistrate also.

The next judgments in the series are those given by the Supreme Court on 25 September 1984 in the cases of Mr Kostovski and his co-accused, one of which is published in NJ 1985, 426. They contain the following new elements:

(a) the mere fact that the examining magistrate did not know the identity of the witness does not prevent the use in evidence of the official report of the hearing he conducted;

(b) if the defence contests at the trial the reliability of depositions by an anonymous witness, as recorded in the official report of the hearing of the witness, but the court nevertheless decides to admit them as evidence, it must give reasons justifying that decision.

These principles were confirmed in a judgment of 21 May 1985 (NJ 1986, 26), which makes it clear that the Supreme Court’s review of the reasons given to justify the admission of anonymous statements as evidence is only a marginal one.

D. Law reform

The Minister of Justice consequently set up in September 1984 an external advisory committee, called "the Commission on Threatened Witnesses", to examine the problem. In its report of 11 June 1986, which was later submitted for advice to several bodies concerned with the application of the criminal law, the Commission concluded, with only one member dissenting, as follows:

"In some cases one cannot avoid anonymity of witnesses. Reference is made to the fact (which was also pointed out by the Minister) that at present there are forms of organised criminality of a gravity that the legislature of the day would not have considered possible."

The Commission added that "in a society governed by the rule of law the interference with, or more accurately the frustration of, the course of justice resulting [from this situation] cannot possibly be accepted".

The Commission proposed that the law should in principle forbid the use as evidence of statements by anonymous witnesses. It should, however, be possible to make an exception where the witness would run an unacceptable risk if his or her identity were known. In such cases an anonymous statement might be admitted as evidence if the witness had been examined by an examining magistrate, the accused being given a right of appeal against the latter’s decision to grant anonymity. The report contains a Bill making the necessary modifications to the CCP (with draft explanatory notes) and comparative data.

According to the Government, initiation of legislation in this area has been deferred pending the Court’s decision in the present case.

PROCEEDINGS BEFORE THE COMMISSION

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public 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;

 ..."

The Commission arrived at the conclusion, which was contested by the Government, that there had been a breach of paragraph 1, taken together with paragraph 3 (d), of Article 6 (art. 6-1, art. 6-3-d).

In the light of these principles the Court sees its task in the present case as being not to express a view as to whether the statements in question were correctly admitted and assessed but rather to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (ibid.).

This being the basic issue, and also because the guarantees in paragraph 3 of Article 6 (art. 6-3) are specific aspects of the right to a fair trial set forth in paragraph 1 (art. 6-1) (see, inter alia, the same judgment, p. 31, § 67), the Court will consider the applicant’s complaints from the angle of paragraphs 3 (d) and 1 taken together (art. 6-3-d, art. 6-1).

As a rule, these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings (see, mutatis mutandis, the Unterpertinger judgment of 24 November 1986, Series A no. 110, pp. 14-15, § 31).

It is true that the defence was able, before both the Utrecht District Court and the Amsterdam Court of Appeal, to question one of the police officers and both of the examining magistrates who had taken the declarations (see paragraphs 17 and 19 above). It was also able, but as regards only one of the anonymous persons, to submit written questions to him/her indirectly through the examining magistrate (see paragraph 16 above). However, the nature and scope of the questions it could put in either of these ways were considerably restricted by reason of the decision that the anonymity of the authors of the statements should be preserved (see paragraphs 16, 17 and 19 above).

The latter feature of the case compounded the difficulties facing the applicant. If the defence is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable. Testimony or other declarations inculpating an accused may well be designedly untruthful or simply erroneous and the defence will scarcely be able to bring this to light if it lacks the information permitting it to test the author’s reliability or cast doubt on his credibility.  The dangers inherent in such a situation are obvious.

It is true that one of the anonymous persons was heard by examining magistrates. However, the Court is bound to observe that - in addition to the fact that neither the applicant nor his counsel was present at the interviews - the examining magistrates themselves were unaware of the person’s identity (see paragraphs 15-16 above), a situation which cannot have been without implications for the testing of his/her reliability. As for the other anonymous person, he was not heard by an examining magistrate at all, but only by the police (see paragraphs 11 and 17 above).

In these circumstances it cannot be said that the handicaps under which the defence laboured were counterbalanced by the procedures followed by the judicial authorities.

As on previous occasions (see, for example, the Ciulla judgment of 22 February 1989, Series A no. 148, p. 18, § 41), the Court does not underestimate the importance of the struggle against organised crime. Yet the Government’s line of argument, whilst not without force, is not decisive.

Although the growth in organised crime doubtless demands the introduction of appropriate measures, the Government’s submissions appear to the Court to lay insufficient weight on what the applicant’s counsel described as "the interest of everybody in a civilised society in a controllable and fair judicial procedure". The right to a fair administration of justice holds so prominent a place in a democratic society (see the Delcourt judgment of 17 January 1970, Series A no. 11, p. 15, § 25) that it cannot be sacrificed to expediency. The Convention does not preclude reliance, at the investigation stage of criminal proceedings, on sources such as anonymous informants. However, the subsequent use of anonymous statements as sufficient evidence to found a conviction, as in the present case, is a different matter. It involved limitations on the rights of the defence which were irreconcilable with the guarantees contained in Article 6 (art. 6). In fact, the Government accepted that the applicant’s conviction was based "to a decisive extent" on the anonymous statements.

II.   APPLICATION OF ARTICLE 50 (art. 50)

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

The applicant sought under this Article (art. 50) compensation for non-pecuniary damage. He made no claim in respect of pecuniary damage or of costs and expenses and these are not matters which the Court has to examine of its own motion (see, amongst various authorities, the Brogan and Others judgment of 29 November 1988, Series A no. 145-B, p. 36, § 70).

The Delegate of the Commission did not comment on the Article 50 (art. 50) issue. The Government’s principal plea was that there was not a sufficient causal link between the alleged damage and the violation found: it was not established that Mr Kostovski would have been acquitted if certain of the questions put to the authors of the anonymous statements had not been barred or even if their anonymity had not been guaranteed. In the alternative, the Government asserted that the sum claimed was much too high; should the Court consider an award appropriate, they left its amount to the Court’s discretion.

However, the Court has been provided by those appearing before it with no information as to whether and, if so, to what extent the internal law of the respondent State allows reparation to be made for the consequences of the violation found in the present case. It therefore considers that the question of the application of Article 50 (art. 50) is not ready for decision and must be reserved.

FOR THESE REASONS, THE COURT

1. Holds unanimously that there has been a violation of paragraph 3 (d), taken together with paragraph 1, of Article 6 (art. 6-3-d, art. 6-1) of the Convention;

2. Holds by seventeen votes to one that the question of the application of Article 50 (art. 50) is not ready for decision;

accordingly,

(a) reserves the whole of the said question;

(b) invites the Government and the applicant to submit, within the forthcoming three months, their written comments thereon and, in particular, to notify the Court of any agreement reached between them;

(c) reserves the further procedure and delegates to the President of the Court power to fix the same if need be.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 20 November 1989.

Rolv RYSSDAL

President

Marc-André EISSEN

Registrar