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European Court of Human Rights


You are here: BAILII >> Databases >> European Court of Human Rights >> DOORSON v. THE NETHERLANDS - 20524/92 [1996] ECHR 14 (26 March 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/14.html
Cite as: 22 EHRR 330, [1996] ECHR 14, (1996) 22 EHRR 330

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In the case of Doorson v. the Netherlands (1),

The European Court of Human Rights, sitting, in

accordance with Article 43 (art. 43) of the Convention for the

Protection of Human Rights and Fundamental Freedoms ("the

Convention") and the relevant provisions of Rules of Court B (2),

as a Chamber composed of the following judges:

Mr R. Ryssdal, President,

Mr Thór Vilhjálmsson,

Mr J. De Meyer,

Mr N. Valticos,

Mr S.K. Martens,

Mr F. Bigi,

Mr A.B. Baka,

Mr L. Wildhaber,

Mr D. Gotchev,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 27 October 1995 and

20 February 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 54/1994/501/583. The first number is

the case's position on the list of cases referred to the Court

in the relevant year (second number). The last two numbers

indicate the case's position on the list of cases referred to the

Court since its creation and on the list of the corresponding

originating applications to the Commission.

2. Rules of Court B, which came into force on 2 October 1994,

apply to all cases concerning the States bound by Protocol No. 9

(P9).

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 8 December 1994,

within the three-month period laid down by Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention. It originated

in an application (no. 20524/92) against the Kingdom of the

Netherlands lodged with the Commission under Article 25 (art. 25)

by a Netherlands national, Mr Désiré Wilfried Doorson, on

27 June 1992.

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 object of the request was to obtain a decision

as to whether the facts of the case disclosed a breach by the

respondent State of its obligations under Article 6 paras. 1 and

3 (art. 6-1, art. 6-3) of the Convention.

2. In response to the enquiry made in accordance with

Rule 35 para. 3 (d) of Rules of Court B, the applicant stated

that he wished to take part in the proceedings and designated the

lawyer who would represent him (Rule 31). The lawyer was given

leave by the President to use the Dutch language (Rule 28

para. 3).

3. The Chamber to be constituted included ex officio

Mr S.K. Martens, the elected judge of Netherlands nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On

27 January 1995, in the presence of the Registrar, the President

drew by lot the names of the other seven members, namely

Mr Thór Vilhjálmsson, Mr J. De Meyer, Mr N. Valticos, Mr F. Bigi,

Mr A.B. Baka, Mr L. Wildhaber and Mr D. Gotchev (Article 43 in

fine of the Convention and Rule 21 para. 4) (art. 43).

4. As President of the Chamber (Rule 21 para. 5),

Mr Ryssdal, acting through the Registrar, consulted the Agent of

the Netherlands Government ("the Government"), the applicant's

lawyer and the Delegate of the Commission on the organisation of

the proceedings (Rules 39 para. 1 and 40). Pursuant to the order

made in consequence, the Registrar received the applicant's

memorial on 26 June 1995 and the Government's memorial on

27 July. The Delegate did not submit any observations in

writing.

5. On 25 August 1995 the Commission produced certain

documents from the file on the proceedings before it, as

requested by the Registrar on the President's instructions.

6. In accordance with the President's decision, the hearing

took place in public in the Human Rights Building, Strasbourg,

on 24 October 1995. The Court had held a preparatory meeting

beforehand.

There appeared before the Court:

(a) for the Government

Mr K. de Vey Mestdagh, Ministry of Foreign Affairs, Agent,

Mrs I.M. Abels, Ministry of Justice,

Mrs M.J.T.M. Vijghen, Ministry of Justice, Advisers;

(b) for the Commission

Mr H.G. Schermers, Delegate;

(c) for the applicant

Mr G.P. Hamer, advocaat en procureur, Counsel.

The Court heard addresses by Mr Schermers, Mr Hamer and

Mr de Vey Mestdagh.

AS TO THE FACTS

I. Particular circumstances of the case

A. The police investigation

7. The applicant is a Netherlands citizen born in 1958 and

resident in Amsterdam.

8. In August 1987 the prosecuting authorities decided to

take action against the nuisance caused by drug trafficking in

Amsterdam. The police had compiled sets of photographs of

persons suspected of being drug dealers. These were shown to

about 150 drug addicts in order to collect statements from them.

However, following a similar action in 1986 when drug addicts who

had made statements to the police had been threatened, it turned

out that most of those to whom photographs were shown were only

prepared to make statements on condition that their identity was

not disclosed to the drug dealers whom they identified.

In each set of photographs shown there was one of a

person known to be innocent. Statements made by persons who

identified this photograph as that of a drug dealer were regarded

as unreliable and discounted.

9. In September 1987 the police received information from a

person referred to by the police under the code number GH.021/87

that the applicant was engaged in drug trafficking. The

applicant's identification photograph, which had been taken in

1985, was thereupon included by the police in the collection of

photographs shown to drug addicts.

10. A number of drug addicts subsequently stated to the

police that they recognised the applicant from his photograph and

that he had sold drugs. Six of these drug addicts remained

anonymous; they were referred to by the police under the code

names Y.05, Y.06, Y.13, Y.14, Y.15 and Y.16. The identity of two

others was disclosed, namely R. and N.

B. Proceedings before the Regional Court

11. On 12 April 1988 the applicant was arrested on suspicion

of having committed drug offences. It appears that he was

subsequently taken into detention on remand.

12. On 13 April 1988 the applicant was shown the photograph

made of him by the police and recognised it as a photograph of

himself.

13. A preliminary judicial investigation (gerechtelijk

vooronderzoek) was opened, during which the applicant's lawyer

submitted a request for an examination of the witnesses referred

to in the police report in the applicant's case. The

investigating judge (rechter-commissaris) accordingly ordered the

police to bring these witnesses before him on 30 May 1988 between

9.30 a.m. and 4 p.m. The applicant's lawyer was notified and

invited to attend the questioning of these witnesses before the

investigating judge.

14. On 30 May 1988 the applicant's lawyer arrived at the

investigating judge's chambers at 9.30 a.m. However, after an

hour and a half had elapsed and none of the witnesses had

appeared, he concluded that no questioning would take place. He

therefore left for another appointment. According to the lawyer

he did so with the consent of the investigating judge, Judge M.,

who had promised him that if the witnesses should turn up later

that day, they would not be heard but would be required to appear

for questioning at a later date so that he would be able to

attend.

After the lawyer had left, two of the eight witnesses

referred to in the police report turned up and were heard by the

investigating judge in the absence of the lawyer, witness Y.15

at about 11.15 a.m. and witness Y.16 at about 3 p.m.

From an official record of his findings (proces-verbaal

van bevindingen) drawn up by Judge M. on 17 June 1988, it appears

that Y.15 and Y.16 did not keep a promise to return for further

questioning on 3 June.

15. On 19 July 1988 the applicant appeared before the

Amsterdam Regional Court (arrondissementsrechtbank) on charges

of drug trafficking. At the prosecutor's request, the court

decided to adjourn its examination until 25 August 1988.

16. On 25 August 1988 the Regional Court resumed the hearing.

As the Regional Court was differently composed, it recommenced

its examination of the case. The applicant's lawyer requested

the court to refer the case back to the investigating judge for

an examination of the six anonymous witnesses and to hear the two

named witnesses R. and N. itself. The court refused the first

request but ordered the witnesses R. and N. to be brought before

it and adjourned the hearing until 4 October 1988.

The Regional Court also refused a request made by the

defence for the applicant's detention on remand to be terminated

or else suspended, being of the opinion that the applicant was

still under suspicion and that the reasons for which the

detention on remand had been ordered were still valid.

One of the judges sitting on this occasion was a certain

Judge Sm.

17. On 29 September 1988 the applicant's lawyer submitted to

the Regional Court a number of documents including the judgment

of the European Court of Human Rights in the case of

Unterpertinger v. Austria (judgment of 24 November 1986, Series A

no. 110) and the report of the European Commission of Human

Rights in the case of Kostovski v. the Netherlands (report of

12 May 1988, application no. 11454/85).

18. On 4 October 1988 the Regional Court resumed the

proceedings. In view of the fact that all three judges of the

Regional Court had been replaced, the court again recommenced its

examination. The defence again made a request to have the six

anonymous witnesses examined, which was refused.

The named witness N. appeared, R. did not. Both the

prosecution and the defence were given the opportunity to put

questions to N. Asked to identify the applicant, N. stated that

he did not recognise him. On being shown the applicant's

photograph, he said that he recognised it as that of a man who

had given him heroin when he was ill. However, towards the end

of his examination he stated that he was no longer quite sure of

recognising the man on the photograph; it might be that the man

who had given him the heroin only resembled that man. He further

alleged that when shown the photographs by the police, he had

only identified the applicant's photograph as that of a person

from whom he had bought drugs because at the time he had felt

very ill and had been afraid that the police might not give him

back the drugs which they had found in his possession.

The court adjourned its further examination until

29 November 1988, ordering the appearance of the witnesses R. and

N., and - on a motion of the defence - of L., an expert in the

field of problems related to drug trafficking and abuse. It

ordered the witness R. to be brought before it by the police.

19. On 29 November 1988 the Regional Court resumed its

hearing.

The expert L. appeared and was questioned before the

court. He doubted whether statements such as that made by the

drug addicts in the present case could be qualified as

voluntarily made. In any event such statements were in his

opinion highly unreliable because before photographs were shown

all kinds of promises were made so that when it came to

identifying individuals the persons concerned knew exactly what

was expected of them by the interrogator, whether police officer

or judge.

The witnesses N. and R. did not appear, the latter

despite the order that he be brought before the court by the

police. The defence thereupon withdrew its request to have R.

and N. examined before the court in order to avoid a further

adjournment of the hearing which would mean prolonging the

applicant's detention on remand.

The applicant's lawyer gave a critical analysis of the

statements made by the anonymous witnesses. He remarked moreover

that there were no valid reasons for preserving their anonymity

as it had not been demonstrated that the applicant had ever taken

reprisal action or was of a violent disposition.

20. On 13 December 1988 the Regional Court convicted the

applicant of drug trafficking and sentenced him to fifteen

months' imprisonment. In so doing it took into consideration the

fact that the applicant had previously been convicted of similar

offences.

C. Proceedings before the Court of Appeal

21. The applicant appealed to the Amsterdam Court of Appeal

(gerechtshof).

22. By letter of 6 November 1989 the applicant's lawyer

requested the procurator general (procureur-generaal) of the

Court of Appeal to summon the anonymous witnesses, the named

witnesses N. and R. and the expert L. for questioning at that

court's hearing, which was scheduled on 30 November.

The procurator general replied by letter of

22 November that he would summon N., R. and L. but not the

anonymous witnesses as he wished to preserve their anonymity.

If necessary, the Court of Appeal could decide at the hearing to

order these witnesses to be heard in camera by the investigating

judge.

23. On 24 November 1989 the applicant's lawyer wrote to the

president of the Court of Appeal requesting that the six

anonymous witnesses be summoned. In support of this request he

pointed out that neither his client nor he had ever had the

opportunity to question these witnesses. In this context he

referred to the judgment of the European Court of Human Rights

in the case of Kostovski v. the Netherlands, which had been

delivered four days earlier (judgment of 20 November 1989,

Series A no. 166).

24. The hearing of the Court of Appeal on 30 November 1989

was attended by the expert L. but none of the witnesses appeared.

The applicant therefore requested that the hearing be adjourned

so that they might be summoned for questioning in open court at

a later date or, in the alternative, by the investigating judge.

The Court of Appeal decided to verify the necessity of

maintaining the anonymity of the witnesses and referred the case

back to the investigating judge for this purpose. The Court of

Appeal also requested the investigating judge to examine the

witnesses - after deciding whether their anonymity should be

preserved or not - with respect to the facts imputed to the

applicant, and to offer his lawyer the opportunity both to attend

this examination in the room in which it would take place and to

put questions to the witnesses. The court also expressed the

wish that the series of photographs used by the police should,

if still available, be added to the file. Finally, it ordered

the appearance of the witnesses R. and N. and the expert L.

before it and adjourned the hearing sine die.

25. On 14 February 1990 the investigating judge heard the

witnesses Y.15 and Y.16 in the presence of the applicant's

lawyer. The investigating judge was Judge Sm. of the Amsterdam

Regional Court, who had taken part in the hearing on

25 August 1988 as a member of the trial court and in the

decisions taken on that occasion (see paragraph 16 above).

The lawyer was given the opportunity to put questions to

the witnesses but was not informed of their identity. The

identity of both witnesses was known to the investigating judge.

Both witnesses expressed the wish to remain anonymous and

not to appear in court. Witness Y.16 stated that he had in the

past suffered injuries at the hands of another drug dealer after

he had "talked" and feared similar reprisals from the applicant.

Witness Y.15 stated that he had in the past been threatened by

drug dealers if he were to talk. He further stated that the

applicant was aggressive. The investigating judge concluded from

the reasons given that both witnesses had sufficient reason to

wish to maintain their anonymity and not to appear in open court.

Y.15 and Y.16 were extensively questioned, both by the

investigating judge and by the applicant's lawyer. The latter

inquired, inter alia, into their reasons for testifying against

a dealer who they both said sold good quality drugs and asked

them whether they were being paid for giving evidence. Neither

Y.15 nor Y.16 refused to answer any of the questions put by the

applicant's lawyer. They both stated that they had bought drugs

from the applicant and that they had seen him selling drugs to

others. They again identified him from the police photograph and

gave descriptions of his appearance and dress.

Y.16 stated in addition that the police had rehearsed his

previous statement with him before taking him to see the

investigating judge.

The official record of the examination of Y.15 mentions

that the investigating judge, having come to the conclusion that

Y.15 had good reasons for not wishing to have his identity

revealed or to be heard in open court, placed him on oath; a

similar statement is lacking in the official record of the

examination of Y.16.

26. On 20 March 1990 Judge Sm. drew up an official record of

her findings containing information obtained from the police with

regard to witnesses Y.05, Y.06, Y.13 and Y.14. Y.06, who was a

foreign national, had been expelled from the Netherlands. Y.13's

place of residence was unknown. Y.05 and Y.14 had been seen but

attempts to trace them so as to bring them before the

investigating judge had not been successful. She added that the

sets of photographs could not be spared by the police; however,

should the Court of Appeal so order, the police could produce

them at the trial.

On the same day Judge Sm. returned the file to the Court

of Appeal.

27. After notice had been given to the defence that the

hearing of the Court of Appeal would resume on 10 May 1990, the

applicant's lawyer requested the procurator general by letter of

17 April 1990 to summon all six anonymous witnesses, Y.05, Y.06,

Y.13, Y.14, Y.15 and Y.16, to attend.

On 2 May 1990 the procurator general refused this request

on the ground that Y.15 and Y.16 had been heard for a second time

in the presence of the applicant's lawyer by the investigating

judge, who had been aware of their identity and had found that

they had valid reasons for their wish to remain anonymous. He

further found that in view of the findings of the investigating

judge it would serve no useful purpose to attempt to call the

other anonymous witnesses. It was also necessary to take into

account the desirability of bringing proceedings to an end as

expeditiously as possible (lites finiri oportet).

28. On 10 May 1990 the Court of Appeal recommenced its

examination, having changed composition.

The defence again asked the court to hear R. and N. and

the six anonymous witnesses. The court, however, further

considering the wish of the witnesses Y.15 and Y.16 to remain

anonymous, concluded that it had been decided on sufficiently

convincing grounds that these two witnesses had good reasons to

feel seriously threatened, in view, inter alia, of police records

contained in the case file from which it appeared that there was

a real possibility that drug dealers might threaten potential

witnesses. Accordingly, it did not order them to be summoned.

As to the witnesses Y.05, Y.06, Y.13 and Y.14, the court accepted

the findings of the investigating judge that it would be

pointless to summon them.

On the other hand, the Court of Appeal ordered that the

witnesses R. and N. be brought before it by force and adjourned

its hearing until 28 August 1990.

29. By letter of 15 August 1990 the defence again requested

the procurator general to produce the six anonymous witnesses.

By letter of 17 August 1990 they also asked him to call K., a

university lecturer in criminology who had done a great deal of

research on drug addicts in Amsterdam, and V., a former drug

addict who had personal experience of interrogation by the

police.

30. The procurator general refused both requests on

22 August 1990.

As regards the six anonymous witnesses, he referred to

his earlier decisions of 22 November 1989 and 2 May 1990 and

reiterated the finding of the Court of Appeal of 10 May 1990.

He based his decision not to call K. and V. on the fact

that K. had published a book which rendered his views

sufficiently clear and which the defence could quote at the

hearing if desired, and on the assumption that V. would not be

able to make statements about anything other than his own

experiences as a person suspected of drug offences. It was also

unnecessary to call either of them in view of the fact that the

expert L. would appear at the hearing on 28 August.

31. On 28 August 1990, the Court of Appeal resumed its

hearing.

The witness V., who was in prison, did not appear. The

defence withdrew its request to have him heard but maintained its

request that the Court of Appeal should hear the six anonymous

witnesses and the expert K.

Referring to its decision of 10 May, the Court of Appeal

refused to accede to the request of the defence to hear the six

anonymous witnesses. However, in view of the judgment of the

Supreme Court of 2 July 1990 (see paragraph 46 below), it decided

to refer the case back to the investigating judge, requesting her

to record her findings as to the reliability of the witnesses

Y.15 and Y.16, adding that if in order to appraise their

reliability the investigating judge found it necessary to hear

them again she should do so.

Although the expert K. was present at the hearing on

28 August 1990, having been convened by the defence, the Court

of Appeal decided not to hear him. The reason given was that as

an expert rather than a witness he could not be expected to

contribute to the elucidation of the facts of the case.

The witness N. was heard by the Court of Appeal in the

applicant's presence and the applicant's lawyer was given the

opportunity to question him. N. said that his statement to the

police had been untrue and that he did not in fact know the

applicant.

In pursuance of the court's order of 10 May 1990 that he

be brought by force, the named witness R. was present initially.

It appears that before he was heard, he asked the court usher who

was guarding him for permission to leave for a minute; this being

allowed him, he then disappeared and could not be found again.

The court subsequently ordered that he be brought before it by

force at its next hearing on 22 November 1990.

The Court of Appeal heard the expert L., who stated that

drug addicts often made unreliable statements concerning alleged

drug dealers to the police. He understood from drug addicts that

police officers made promises to them and that they made

statements only in order to be allowed to leave as soon as

possible. Such statements were, in his view, "somewhere between

the truth and a lie".

32. On 19 November 1990 the investigating judge, Judge Sm.,

drew up a record of her findings regarding the reliability of the

statements made to her by Y.15 and Y.16 on 14 February 1990.

She stated in this document that she could not remember

the faces of the two witnesses, but having re-read the records

of the interrogations could recall more or less what had

happened. She had the impression that both witnesses knew whom

they were talking about and had identified the applicant's

photograph without hesitation. With regard to the facts of which

the applicant stood accused, her impression had been that the

witnesses themselves believed their statements to be true. As

far as she remembered, both witnesses had answered all questions

readily and without hesitating although they had made a "somewhat

sleepy impression".

33. At the Court of Appeal's hearing on 22 November 1990, the

witness R. did not appear, the police having been unable to find

him. The court thereupon decided that a new order for R.'s

appearance would be pointless.

The procurator general brought forward a police officer,

I., who had been involved in the investigation and asked that he

be heard. The applicant's lawyer protested that the expert K.

had not been heard and that the defence had no opportunity to

prepare for the questioning of I.; to agree to hear I. now would

prejudice the rights of the defence. The Court of Appeal

nonetheless acceded to the request, and I. was heard concerning

the way in which the investigation had been conducted. I.

explained that from 1982 until 1988 he had been a member of a

police team set up to fight drug trafficking in the centre of

Amsterdam. Over the years that team had built up a good

understanding with many of the drug addicts living in that area;

making use of that relationship, they had asked them for

information on drug dealers. Their cooperation was wholly

voluntary. I. denied that the police made promises to drug

addicts or put pressure on them; nor were photographs shown to

addicts who had been arrested. In his assessment the statements

made by drug addicts were therefore highly reliable. Moreover,

action was only taken against alleged drug dealers if there were

at least eight statements incriminating them. He further

confirmed that it had happened in the past that convicted drug

dealers, after serving their sentence, had threatened and

assaulted drug addicts who had made incriminating statements

against them. Although he had never known the applicant to

resort to violence or threats, he did not rule out the

possibility that he might do so.

The defence challenged the reliability of the statements

made by the various witnesses, both named and anonymous, pointing

to what they considered to be inconsistencies among them. They

objected particularly to the admission as evidence of the

statements made by Y.15 and Y.16, on the grounds, inter alia,

that both were drug addicts and that the investigating judge's

record of her findings of 20 March 1990 did not contain a

statement that she believed that the witnesses had been telling

the truth. Relying on the Hauschildt v. Denmark judgment of the

European Court of Human Rights of 24 May 1989 (Series A no. 154),

they moreover expressed doubts as to the impartiality of the

investigating judge, Judge Sm., in that as a member of the

Regional Court she had taken part in the hearing of the Regional

Court of 25 August 1988 and in the decisions then made. They

protested against the refusal to hear K.

34. On 6 December 1990, the Court of Appeal quashed the

Regional Court's judgment of 13 December 1988, as it was adopting

a different approach with regard to the evidence.

It found the applicant guilty of the deliberate sale of

quantities of heroin and cocaine. This finding was based on the

following evidence:

(a) the fact, as appeared from the police records, that

upon information that the applicant was engaged in drug

trafficking his photograph was added to the collection of

photographs of persons suspected of that offence;

(b) the statements made before the investigating judge

on 14 February 1990 by Y.15 and Y.16 (see paragraph 25 above);

(c) the fact that on 13 April 1988 the applicant had

recognised himself on the police photograph (see paragraph 12

above);

(d) the statements made to the police by the named

witnesses N. and R. (see paragraph 10 above).

As regards the applicant's complaint that the majority of

the witnesses had not been heard in the presence of the applicant

or his lawyer, the court stated that it had based its conviction

on evidence given by the witnesses N., R., Y.15 and Y.16.

The latter two had been questioned by the investigating

judge in the presence of the applicant's lawyer. The Court of

Appeal added that it had used their statements "with the

necessary caution and circumspection". It held that these

statements could be used in evidence, in view, inter alia, of the

consistency between them and the testimony of the police officer

I. It also found that the reliability of the witnesses and the

well-foundedness of their wish to remain anonymous had been

sufficiently verified by the investigating judge.

The witness N. had been heard in open court both at first

instance and on appeal. Although he had retracted his earlier

statement to the police, that was the statement which the Court

of Appeal chose to believe in light of the testimony of the

police officer I.

Finally, the mere fact that the defence had not had the

opportunity to question R. did not mean that his statement could

not be used in evidence.

The Court of Appeal rejected the applicant's complaint

based on the alleged lack of impartiality of Judge Sm. It noted

that the hearing on 25 August 1988 had been summary; the Regional

Court had only considered the applicant's request to have the six

anonymous witnesses examined and his request for release. During

that hearing the Regional Court had not examined the substance

of the applicant's case. It did not appear, nor had it been

argued, that Judge Sm. had had any dealings with Y.15 and Y.16

before questioning them. An investigating judge in any case did

not have to provide the same safeguards as a member of a trial

court. Furthermore, no particular facts or circumstances had

been suggested or had come to light warranting the conclusion

that she had not been able to form an unprejudiced opinion as to

the reliability of the witnesses she had examined, or that she

had been biased in her examination of those witnesses.

The applicant was sentenced to fifteen months'

imprisonment. The time which he had spent in police custody and

detention on remand was deducted from the sentence.

D. Proceedings before the Supreme Court

35. The applicant filed an appeal on points of law to the

Supreme Court (Hoge Raad).

Counsel for the applicant submitted a statement of

grounds of appeal on 29 November 1991. The complaints put

forward, in so far as relevant, were the following.

In the first place, the Court of Appeal ought not to have

refused to hear the expert K. The fact that the court had chosen

to hear I. at the behest of the prosecution, which had brought

him forward at the last moment, meant that the applicant had not

had the possibility to obtain the attendance of a witness on his

behalf under the same conditions as a witness against him. In

addition, the court had failed to give sufficient reasons as to

why the statement of K. could not serve the purpose of

elucidating the facts, the court not having set out anything

either in the record of the hearing or in its judgment with

regard to the testimony that K. intended to give.

In the second place, the Court of Appeal ought not to

have relied on the statements made by Y.15 and Y.16. It had

ignored the wish of the defence to have them brought before the

trial court in order that that court might itself see how

unreliable they were and in order that the applicant might put

questions to them in person.

In the third place, the Court of Appeal ought not to have

taken account of the statement of R., whom the defence had not

had the opportunity to question; nor should it have decided after

he had been allowed to abscond that there was no further point

in attempting to obtain his attendance.

In the fourth place, given the fact that the prosecution

had brought forward the witness I. at the very last moment and

without the defence having had any opportunity to prepare itself,

the Court of Appeal should have either declined to hear him or

deferred his examination to a later date.

In the fifth place, the Court of Appeal ought not to have

relied on witness statements taken by an investigating judge

(Judge Sm.) who had previously, as a member of a trial court and

on the basis of the evidence then contained in the case file

(which included statements of all eight witnesses), taken part

in a decision to prolong the applicant's detention on remand.

Judge Sm. had, in his view, failed to preserve an appearance of

impartiality.

36. In accordance with the advisory opinion of the advocate

general (advocaat-generaal), Mr Fokkens, the applicant's appeal

was rejected by the Supreme Court on 24 March 1992.

As to the first complaint, the Supreme Court held that

the Court of Appeal had given sufficient reasons for not hearing

K., especially since the defence had not indicated in what way

his statement might be relevant to any decision regarding the

charges proffered. Nor had the applicant been denied a "fair

hearing" in this respect; it made no difference that, in spite

of the protests made by the defence, the Court of Appeal had

given the prosecution the opportunity to have a witness heard

without previously announcing its intention to bring him forward.

As to the second complaint, it was held that the mere

fact that a defendant in a criminal case was not able to question

an anonymous witness himself but had to do so through his counsel

did not constitute a violation of the right to a "fair trial",

guaranteed by Article 6 para. 1 (art. 6-1) of the Convention, or

of the right protected by Article 6 para. 3 (d) (art. 6-3-d).

As to the third complaint, the Supreme Court found that

the reasoning on which the Court of Appeal had based its decision

to make no further attempts to have R. brought before it was not

unintelligible; in any case, it could not assess the validity of

that reasoning since this was mainly a question of appreciation

of facts. In view of the fact that it had proved pointless to

repeat attempts to have R. brought before the Court of Appeal by

force and of the fact that his statement was sufficiently

corroborated by other evidence, in particular the statement made

by N. to the police, the Court of Appeal had been entitled to use

his statement in evidence.

As to the fourth complaint, it was held that the Court of

Appeal had not been bound to construe the protests put forward

by the defence either as a request for an adjournment or as a

defence plea requiring a reasoned decision.

As to the fifth complaint, the Supreme Court concurred

with the Court of Appeal that there was no reason to assume that

Judge Sm. had lacked the required impartiality or that the

applicant could have had any cause for so fearing. It continued:

"The mere fact that a judge who has been involved in a

decision at first instance refusing requests made by the

defence to adjourn the hearing and to refer the case back

to the investigating judge for the hearing of anonymous

witnesses and in decisions refusing requests for the

termination or suspension of detention on remand, has

afterwards, pursuant to an order of the Court of Appeal,

heard the said witnesses and given an opinion on the

reliability of their testimony and on their reasons for

remaining anonymous as a rule does not imply that on

appeal the requirement of trial by an `impartial

tribunal' in the sense of Article 6 para. 1 (art. 6-1)

has not been met. It does not appear from the case file

that there are any special circumstances which in the

present case should lead to a different conclusion."

II. Relevant domestic law and practice

37. Except for the differences noted below (see paragraphs 45

and following), relevant domestic law and practice at the time

of the criminal proceedings complained of were as set out in the

Court's above-mentioned Kostovski judgment of 20 November 1989.

Reference is therefore made to that judgment, especially

pp. 13-17, paras. 22-32.

In so far as legal provisions relating to detention on

remand are of relevance, reference is made to the Court's Nortier

v. the Netherlands judgment of 24 August 1993 (Series A no. 267),

pp. 13-14, para. 27.

A. The Code of Criminal Procedure (Wetboek van

Strafvordering - CCP)

38. The public prosecutor has the power to call witnesses and

experts to the hearing (Article 260 CCP). In his summons to the

accused he gives a list of the witnesses and experts to be

brought forward by the prosecution. If the accused wishes to

call witnesses, he can - according to Article 263 - submit a

request to the public prosecutor no later than three days before

the court hearing to summon a witness before the court. As a

rule, the public prosecutor should summon the witness, but -

according to Article 263 para. 4 - he may refuse to do so if it

is to be reasonably assumed that no prejudice to the rights of

the defence will be caused if the witness is not heard in open

court ("Indien redelijkerwijs moet worden aangenomen, dat de

verdachte niet in zijn verdediging kan worden geschaad wanneer

een door hem opgegeven getuige ... niet ter terechtzitting wordt

gehoord"). He has to give a reasoned decision in writing and

must at the same time inform the defence of its right under

Article 280 para. 3 (see paragraph 40 below) to renew the request

to the trial court at the hearing.

39. At the opening of the trial hearing the prosecutor hands

to the court a list of all the witnesses called, which is then

read out by the registrar (griffier) (Article 280 para. 2).

40. If the public prosecutor has failed to summon a witness

at the request of the accused, or declined to do so, the defence

may ask the court to have that witness summoned (Article 280

para. 3). The court so orders, unless it finds that the

non-appearance of this witness cannot reasonably be considered

prejudicial to the rights of the defence ("De rechtbank beveelt

dat de ... getuige ... zal worden gedagvaard of schriftelijk

opgeroepen, tenzij zij ... van oordeel is dat door het achterwege

blijven daarvan de verdachte redelijkerwijs niet in zijn

verdediging kan worden geschaad" - Article 280 para. 4).

41. A request by the defence to hear a witness who has not

been placed on the list of witnesses, who has not been convened

to attend the trial and whose summons the defence has not sought

in accordance with Article 280 falls under Article 315 CCP (see

paragraph 42 below). It appears from the judgment of

23 December 1986 by the Supreme Court that the trial court needs

only accede to a request of this nature if it finds it necessary

to do so.

42. Under Article 315 CCP the trial court has the power to

order of its own accord the production of evidence, including the

summoning of witnesses whom it has not yet heard.

43. If it finds that there is occasion to do so, the trial

court may order that a witness be brought to its hearing by the

police (Articles 282 para. 1 and 315 CCP).

44. If at the trial the trial court finds it necessary to

have any factual question examined by the investigating judge,

it must suspend the hearing and refer the question to the

investigating judge along with the case file. The investigation

carried out by the investigating judge in these cases is deemed

to be a preliminary judicial investigation and is subject to the

same rules (Article 316 CCP).

45. Appeal proceedings against the conviction or sentence at

first instance involve a complete rehearing of the case. Both

the prosecution and the defence may ask for witnesses already

heard at first instance to be heard again; they may also produce

new evidence and request the hearing of witnesses not heard at

first instance (Article 414 CCP). The defence enjoys the same

rights as it does at first instance (Article 415 CCP).

B. Case-law relating to anonymous witnesses

46. In its judgment of 2 July 1990, Nederlandse

Jurisprudentie (Netherlands Law Reports, "NJ") 1990, no. 692, the

Supreme Court considered that it had to be assumed in light of

the European Court's Kostovski judgment that the use of

statements by anonymous witnesses was subject to stricter

requirements than those defined in its case-law until then. It

defined these stricter requirements in the following rule: such

a statement must have been taken down by a judge who (a) is aware

of the identity of the witness, and (b) has expressed, in the

official record of the hearing of such a witness, his reasoned

opinion as to the reliability of the witness and as to the

reasons for the wish of the witness to remain anonymous, and (c)

has provided the defence with some opportunity to put questions

or have questions put to the witness. This rule is subject to

exceptions; thus, according to the same judgment, the statement

of an anonymous witness may be used in evidence if (a) the

defence have not at any stage of the proceedings asked to be

allowed to question the witness concerned, and (b) the conviction

is based to a significant extent on other evidence not derived

from anonymous sources, and (c) the trial court makes it clear

that it has made use of the statement of the anonymous witness

with caution and circumspection.

C. Law reform

47. The Act of 11 November 1993, Staatsblad (Official

Gazette) 1993, no. 603, has added to the CCP a number of detailed

provisions relating to the "protection of witnesses". It entered

into force on 1 February 1994. The additions include the

following.

Article 226a now provides that the identity of a witness

may remain secret if there is reason to believe that the

disclosure of his identity may threaten his life, health, safety,

family life or socio-economic existence and if the witness has

made it clear that he does not wish to make any statement because

of this. The decision is made by the investigating judge, who

must first hear the prosecution, the defence and the witness

himself.

An appeal against the decision of the investigating judge

lies to the trial court (Article 226b).

The investigating judge may order that a threatened

witness be heard in the absence of the accused, or of counsel,

or of both, so as not to disclose the identity of the threatened

witness; in that event, the prosecution authorities may not

attend the questioning of the witness either. The investigating

judge must then allow the defence to put questions of its own to

the witness, either through the use of telecommunication or in

writing (Article 226d).

Article 264 now lays down that the prosecution may refuse

to summon a threatened witness.

If the trial court has ordered that a witness be heard

and that witness turns out to be under threat, he must be heard

in camera by the investigating judge (Article 280 para. 5).

The statement of an anonymous witness taken in accordance

with the above-mentioned provisions may only be used in evidence

against a person accused of crimes in respect of which his

detention on remand is permitted (Article 342 para. 2 (b)).

A new paragraph has been added to Article 344 to the

effect that a statement of a person whose identity is not

apparent may only be used in evidence if the conviction is based

to a significant degree on other evidence and if the defence has

not at any time during the trial sought to question that person

or have him questioned.

PROCEEDINGS BEFORE THE COMMISSION

48. Mr Doorson applied to the Commission on 27 June 1992. He

claimed that he had been a victim of violations of Article 6

paras. 1 and 3 (d) (art. 6-1, art. 6-3-d) of the Convention in

that he had been convicted on the evidence of witnesses who had

not been heard in his presence and whom he had not had the

opportunity to question, in that the Court of Appeal had accepted

the evidence of the anonymous witnesses on the basis of the

statement of an investigating judge who at a previous stage of

the proceedings had participated in a decision to prolong his

detention on remand, and in that the Court of Appeal had refused

to hear an expert brought forward by the defence but had agreed

to hear an expert brought forward by the prosecution. He also

alleged a lack of respect for his private life, in violation of

Article 8 (art. 8) of the Convention, in that his photograph had

been shown to third parties without any basis in law.

49. On 29 November 1993 the Commission declared the

application (no. 20524/92) admissible in so far as it concerned

Article 6 paras. 1 and 3 (d) (art. 6-1, art. 6-3-d) and

inadmissible for the remainder.

In its report of 11 October 1994 (Article 31) (art. 31),

it expressed the opinion, by fifteen votes to twelve, that there

had been no violation of those provisions (art. 6-1, art. 6-3-d).

The full text of the Commission's opinion and of the dissenting

opinion contained in the report is reproduced as an annex to this

judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the

printed version of this judgment (in Reports of Judgments and

Decisions - 1996-II), but a copy of the Commission's report is

obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

50. The applicant concluded his memorial by expressing the

opinion that the Commission ought to have declared his complaint

to be well-founded.

In their memorial, the Government expressed the opinion

that there had been no violation of Article 6 paras. 1 and 3 (d)

(art. 6-1, art. 6-3-d) of the Convention.

AS TO THE LAW

I. SCOPE OF THE CASE BEFORE THE COURT

51. In his memorial and again at the hearing, the applicant

complained that of the approximately 150 statements of persons

to whom the photographs of suspected drug dealers were shown,

only eight were included in the case file (see paragraphs 8 and

10 above); the other 142 were not made available to the defence.

He also raised various claims about the use made of the

statements of the anonymous witnesses Y.05, Y.06, Y.13 and Y.14,

about the procedure for confronting witnesses and informants with

photographs of suspected drug dealers and about the fact

(admitted by Y.16 himself - see paragraph 25 above) that the

police had rehearsed his statement with him while taking him to

see the investigating judge.

These are new complaints. They were not raised as such

in the proceedings before the Commission; nor were they

encompassed by the Commission's decision on admissibility. They

go beyond mere legal submissions put forward in support of the

complaints declared admissible. That being so, the Court has no

jurisdiction to entertain them (see the Erkner and Hofauer

v. Austria judgment of 23 April 1987, Series A no. 117, p. 61,

para. 63).

52. Before the Commission the applicant alleged that his case

had not been decided by an "impartial tribunal". He referred to

the fact that the anonymous witnesses Y.15 and Y.16 had been

heard by an investigating judge of the Regional Court, Judge Sm.,

who had also recorded her finding that Y.15 and Y.16 believed

their statements to be the truth (see paragraphs 25 and 32

above). The Court of Appeal had based its opinion that these

witnesses were reliable on that finding (see paragraph 34 above).

Judge Sm. had previously, as a member of the trial court hearing

the case at first instance, participated in a decision to prolong

the applicant's detention on remand (see paragraph 16 above).

None of the parties referred to this issue in the

proceedings before the Court, whether in their memorials or at

the hearing. The Court sees no reason to address the matter of

its own motion.

II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 TAKEN TOGETHER

WITH ARTICLE 6 PARA. 3 (d) (art. 6-1+art. 6-3-d) OF THE

CONVENTION

53. The applicant alleged that the taking of, hearing of and

reliance on evidence from certain witnesses during the criminal

proceedings against him infringed the rights of the defence, in

violation of Article 6 paras. 1 and 3 (d) (art. 6-1, art. 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 ... 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;

..."

Neither the Commission nor the Government endorsed this

view.

A. Arguments before the Court

1. The applicant

54. The applicant claimed in the first place that in

obtaining the statements of the anonymous witnesses Y.15 and Y.16

the rights of the defence had been infringed to such an extent

that the reliance on those statements by the Amsterdam Court of

Appeal was incompatible with the standards of a "fair" trial.

He emphasised, first of all, that during the

first-instance proceedings Y.15 and Y.16 were questioned by an

investigating judge, Judge M., in the absence of his counsel.

He claimed that this was in violation of an agreement between his

counsel and Judge M. (see paragraph 14 above).

Although he conceded that in the course of the appeal

proceedings Y.15 and Y.16 had been questioned by Investigating

Judge Sm. in the presence of his counsel and had identified him

from a photograph taken several years previously (see

paragraph 25 above), that was not a proper substitute for a

confrontation with him in person. Not knowing the identity of

the persons concerned, he could not himself cross-examine them

to test their credibility. Nor could the possibility of mistakes

be ruled out. It would, in his submission, have been possible

to examine the witnesses in his presence, protecting them, if

need be, by the use of disguise, voice-distorting equipment or

a two-way mirror.

In fact, he questioned the need for maintaining the

anonymity of Y.15 and Y.16 at all. Both had stated before the

investigating judge that they feared reprisals (see paragraph 25

above) but there was nothing to suggest that they were ever

subjected to, or for that matter threatened with, violence at the

hands of the applicant. Moreover, the basis of the investigating

judge's assessment of the need for anonymity was not made clear

to the defence.

He further submitted that it was inappropriate that the

trial court should have accepted unquestioningly the assessment

of the reliability of the evidence given by Y.15 and Y.16 to the

investigating judge (see paragraphs 32 and 34 above). In this

connection the applicant pointed out that both Y.15 and Y.16 were

drug addicts. Y.16, on his own admission, had been an addict for

no less than seventeen years. Statements by drug addicts were

notoriously unreliable, as appeared from, inter alia, the

statement made by the expert witness L. (see paragraph 31 above).

The investigating judge had not herself carried out the complete

investigation of the case, so that she could not assess the

credibility of the witnesses in the light of the complete case

file; furthermore, an important safeguard - namely, a complete

assessment by the full trial court, which consisted of three

judges of the Court of Appeal - had been lacking.

55. In the second place, the applicant complained about the

reliance on the evidence of the named witness R. Although R. had

been brought to the hearing of the Court of Appeal for

questioning, he had - in the applicant's submission - been

allowed to abscond under circumstances which engaged the Court

of Appeal's responsibility; that court had afterwards abandoned

its attempts to have R. brought before it anew and nonetheless

relied on the statement which he had made to the police (see

paragraphs 31, 33 and 34 above). Since he - the applicant - had

not been able to cross-examine R., his statement to the police

should not have been admitted as evidence.

56. In the third place, the applicant alleged that the Court

of Appeal had been wrong to rely on the statement made by the

named witness N. to the police. N. had stated on oath to both

the Regional Court during the first-instance proceedings and the

Court of Appeal that his statement to the police had been untrue

(see paragraphs 18 and 31 above). In the applicant's submission,

this meant at the very least that his statement to the police was

suspect.

57. Finally, he submitted that the Court of Appeal should not

have refused to hear a defence witness, the expert K. whom he had

brought along to the court's hearing, while agreeing to hear the

evidence of a prosecution witness, the police officer I. (see

paragraphs 31 and 33 above).

2. The Commission

58. The Commission pointed out that the named witness N. had

been heard by the trial courts both at first instance and on

appeal (see paragraphs 18 and 31 above). Both the prosecution

and the defence had had the opportunity to put questions to him

and the courts had been able to form an opinion as to the value

of his statements. In the circumstances, therefore, and also

given the nature of N.'s statement to the police - he had

identified the applicant's photograph as that of a drug dealer -

use of that statement in evidence could not affect the fairness

of the proceedings.

59. Both the Regional Court and the Court of Appeal had made

repeated attempts to hear the named witness R. in open court.

These, however, had proved unsuccessful (see paragraphs 31 and

33 above). It could not therefore, in the Commission's view, be

considered unfair to rely on R.'s statement to the police to some

extent. At the Court's hearing, the Commission's Delegate

expressed the opinion that although R.'s statement would not be

sufficient on its own to justify a conviction, it could be used

to corroborate other evidence.

60. With regard to the anonymous witnesses Y.15 and Y.16, the

Commission observed that their identity was known to the

investigating judge (see paragraph 25 above). There was, in its

view, no reason to doubt that their wish to remain anonymous was

well-founded. In addition, they had been heard in the presence

of the applicant's counsel who had had the opportunity to put

questions of his own (see paragraph 25 above). While it would

have been preferable to confront them with the applicant in

person, there were, in its opinion, valid reasons not to do so.

Moreover, various persons had independently identified the

applicant from a photograph and the value of this and other

evidence was extensively discussed in adversarial proceedings.

Viewed as a whole, therefore, the proceedings had not been

unfair.

61. Finally, it had been within the discretion of the Court

of Appeal to decide whether or not hearing the defence witness

K. could contribute to the proper administration of justice (see

paragraph 31 above).

3. The Government

62. The Government contended that it had not been necessary

to hear the witnesses Y.15 and Y.16 in open court as the hearing

of witnesses by the investigating judge offered sufficient

safeguards. The involvement of the investigating judge afforded

the suspect the guarantee that the investigation would be

impartial and objective. It was the duty of the investigating

judge to collect not only evidence that tended to incriminate the

suspect, but also evidence that might disculpate him. In

addition, the investigating judge had the power to hear witnesses

on oath, and the prosecution and the defence had the right to

attend and ask questions of their own or to submit questions in

writing (see paragraph 37 above and the Court's Kostovski

judgment cited therein, p. 14, para. 23).

They noted in addition that the applicant's counsel had

twice had the opportunity to question the witnesses Y.15 and Y.16

in the presence of an investigating judge. The first such

opportunity was on 30 May 1988, during the preliminary judicial

investigation; on that occasion the lawyer had left, for reasons

of his own, before these witnesses appeared (see paragraph 14

above). The second was during the appeal proceedings, on

14 February 1990 (see paragraph 25 above). On that occasion

counsel had been present and had in fact put direct questions to

the witnesses.

Given that counsel had in fact been able to question Y.15

and Y.16 face to face, the lack of any confrontation with the

applicant in person had not materially restricted the ability of

the defence to cast doubt on their credibility or that of their

statements or to counter their statements as it saw fit.

Moreover, the investigating judge, Judge Sm., had been

aware of the identity of the anonymous witnesses. She had also

examined their reasons for wishing to remain anonymous - namely,

fear of reprisals - and considered them well-founded. Her

decision had been upheld by the Court of Appeal, which had found

it established that potential witnesses in drug-using circles

were in fact frequently threatened by drug dealers (see

paragraph 28 above).

The Court of Appeal had been entitled to consider the

reliability of the statements of Y.15 and Y.16 sufficiently

corroborated by the findings of the investigating judge, as

officially recorded on 19 November 1990, and by the statement in

open court of the police officer I. that the witnesses in the

case had been under no constraint. In any case, the Court of

Appeal had noted in its judgment that it had made use of the

anonymous statements "with the necessary caution and

circumspection" (see paragraph 34 above).

They noted generally that the procedure followed had been

in accordance with the case-law of the Netherlands Supreme Court

in which rules had been laid down for the implementation in

domestic law of the Court's judgment in the Kostovski case (see

paragraph 46 above).

63. It had likewise been within the discretion of the Court

of Appeal to make use of the statement which the named witness

N. had made to the police, rather than the statements which he

had later made before the Regional Court and the Court of Appeal

retracting it. The defence had sufficient opportunity to

cross-examine N. and to challenge his evidence in open court (see

paragraphs 18 and 31 above). In any case, the selection and

assessment of evidence was the responsibility of the national

courts.

64. Given the freedom of the trial courts to assess the

available evidence, the Court of Appeal had also been entitled

to make use of the statement made by the named witness R. to the

police. In this connection they drew attention to the fact that

several attempts had been made to bring him before the court, all

of which had proved unsuccessful (see paragraphs 28 and 31

above).

65. In the view of the Government no issue could be taken

with the refusal of the Court of Appeal to hear the expert

witness K. (see paragraph 31 above). The defence had supplied

no information from which it appeared that his evidence would

have differed from, or added to, that of the expert L., who had

already been heard.

B. The Court's assessment

1. The Court's general approach

66. As the requirements of Article 6 para. 3 (art. 6-3) are

to be seen as particular aspects of the right to a fair trial

guaranteed by Article 6 para. 1 (art. 6-1), the Court will

examine the complaints under Article 6 paras. 1 and 3 (d)

(art. 6-1+art. 6-3-d) taken together (see, among many other

authorities, the Delta v. France judgment of 19 December 1990,

Series A no. 191-A, p. 15, para. 34).

67. The Court reiterates that the admissibility of evidence

is primarily a matter for regulation by national law and as a

general rule it is for the national courts to assess the evidence

before them. The Court's task under the Convention is not to

give a ruling as to whether statements of witnesses were properly

admitted as evidence, but rather to ascertain whether the

proceedings as a whole, including the way in which evidence was

taken, were fair (see, among other authorities, the

above-mentioned Kostovski judgment, p. 19, para. 39).

2. The anonymous witnesses Y.15 and Y.16

68. The Court agrees with the Commission's Delegate that no

issue arises in relation to the fact that Investigating Judge M.

heard Y.15 and Y.16 in the absence of the applicant's counsel in

the course of the preliminary judicial investigation, since in

the course of the subsequent appeal proceedings these two

witnesses were heard in counsel's presence (see paragraph 25

above).

69. As the Court has held on previous occasions, the

Convention does not preclude reliance, at the investigation

stage, on sources such as anonymous informants. The subsequent

use of their statements by the trial court to found a conviction

is however capable of raising issues under the Convention (see

the above-mentioned Kostovski judgment, p. 21, para. 44, and the

Windisch v. Austria judgment of 27 September 1990, Series A

no. 186, p. 11, para. 30).

As was already implicit in paragraphs 42 and 43 of the

above-mentioned Kostovski judgment (loc. cit., pp. 20-21), such

use is not under all circumstances incompatible with the

Convention.

70. It is true that Article 6 (art. 6) does not explicitly

require the interests of witnesses in general, and those of

victims called upon to testify in particular, to be taken into

consideration. However, their life, liberty or security of

person may be at stake, as may interests coming generally within

the ambit of Article 8 (art. 8) of the Convention. Such

interests of witnesses and victims are in principle protected by

other, substantive provisions of the Convention, which imply that

Contracting States should organise their criminal proceedings in

such a way that those interests are not unjustifiably imperilled.

Against this background, principles of fair trial also require

that in appropriate cases the interests of the defence are

balanced against those of witnesses or victims called upon to

testify.

71. As the Amsterdam Court of Appeal made clear, its decision

not to disclose the identity of Y.15 and Y.16 to the defence was

inspired by the need, as assessed by it, to obtain evidence from

them while at the same time protecting them against the

possibility of reprisals by the applicant (see paragraph 28

above). This is certainly a relevant reason to allow them

anonymity. It remains to be seen whether it was sufficient.

Although, as the applicant has stated, there has been no

suggestion that Y.15 and Y.16 were ever threatened by the

applicant himself, the decision to maintain their anonymity

cannot be regarded as unreasonable per se. Regard must be had

to the fact, as established by the domestic courts and not

contested by the applicant, that drug dealers frequently resorted

to threats or actual violence against persons who gave evidence

against them (see paragraph 28 above). Furthermore, the

statements made by the witnesses concerned to the investigating

judge show that one of them had apparently on a previous occasion

suffered violence at the hands of a drug dealer against whom he

had testified, while the other had been threatened (see

paragraph 25 above).

In sum, there was sufficient reason for maintaining the

anonymity of Y.15 and Y.16.

72. The maintenance of the anonymity of the witnesses Y.15

and Y.16 presented the defence with difficulties which criminal

proceedings should not normally involve. Nevertheless, no

violation of Article 6 para. 1 taken together with Article 6

para. 3 (d) (art. 6-1+art. 6-3-d) of the Convention can be found

if it is established that the handicaps under which the defence

laboured were sufficiently counterbalanced by the procedures

followed by the judicial authorities (see, mutatis mutandis, the

above-mentioned Kostovski judgment, p. 21, para. 43).

73. In the instant case the anonymous witnesses were

questioned at the appeals stage in the presence of counsel by an

investigating judge who was aware of their identity (see

paragraph 25 above), even if the defence was not. She noted, in

the official record of her findings dated 19 November 1990,

circumstances on the basis of which the Court of Appeal was able

to draw conclusions as to the reliability of their evidence (see

paragraphs 32 and 34 above). In this respect the present case

is to be distinguished from that of Kostovski (loc. cit., p. 21,

para. 43). Counsel was not only present, but he was put in a

position to ask the witnesses whatever questions he considered

to be in the interests of the defence except in so far as they

might lead to the disclosure of their identity, and these

questions were all answered (see paragraph 25 above). In this

respect also the present case differs from that of Kostovski

(loc. cit., p. 20, para. 42).

74. While it would clearly have been preferable for the

applicant to have attended the questioning of the witnesses, the

Court considers, on balance, that the Amsterdam Court of Appeal

was entitled to consider that the interests of the applicant were

in this respect outweighed by the need to ensure the safety of

the witnesses. More generally, the Convention does not preclude

identification - for the purposes of Article 6 para. 3 (d)

(art. 6-3-d) - of an accused with his counsel (see, mutatis

mutandis, the Kamasinski v. Austria judgment of 19 December 1989,

Series A no. 168, p. 40, para. 91).

75. In addition, although it is normally desirable that

witnesses should identify a person suspected of serious crimes

in person if there is any doubt about his identity, it should be

noted in the present case that Y.15 and Y.16 identified the

applicant from a photograph which he himself had acknowledged to

be of himself (see paragraph 12 above); moreover, both gave

descriptions of his appearance and dress (see paragraph 25

above).

It follows from the above considerations that in the

circumstances the "counterbalancing" procedure followed by the

judicial authorities in obtaining the evidence of witnesses Y.15

and Y.16 must be considered sufficient to have enabled the

defence to challenge the evidence of the anonymous witnesses and

attempt to cast doubt on the reliability of their statements,

which it did in open court by, amongst other things, drawing

attention to the fact that both were drug addicts (see

paragraph 33 above).

76. Finally, it should be recalled that even when

"counterbalancing" procedures are found to compensate

sufficiently the handicaps under which the defence labours, a

conviction should not be based either solely or to a decisive

extent on anonymous statements. That, however, is not the case

here: it is sufficiently clear that the national court did not

base its finding of guilt solely or to a decisive extent on the

evidence of Y.15 and Y.16 (see paragraph 34 above).

Furthermore, evidence obtained from witnesses under

conditions in which the rights of the defence cannot be secured

to the extent normally required by the Convention should be

treated with extreme care. The Court is satisfied that this was

done in the criminal proceedings leading to the applicant's

conviction, as is reflected in the express declaration by the

Court of Appeal that it had treated the statements of Y.15 and

Y.16 "with the necessary caution and circumspection" (see

paragraph 34 above).

3. The witness N.

77. The witness N. made a statement to the police inculpating

the applicant but retracted it when questioned on oath in open

court in the presence of the applicant, both before the Regional

Court and the Court of Appeal. The Court of Appeal nonetheless

decided to attach some credence to N.'s statement to the police.

78. As stated in paragraph 67 above, the Court's task under

the Convention is not to give a ruling as to whether statements

of witnesses were properly admitted as evidence; this is for the

domestic courts, the task of the European Court being to

ascertain whether the proceedings as a whole, including the way

in which evidence was taken, were fair. The Court cannot hold

in the abstract that evidence given by a witness in open court

and on oath should always be relied on in preference to other

statements made by the same witness in the course of criminal

proceedings, not even when the two are in conflict.

The Court, therefore, does not find that the decision

taken by the Court of Appeal with regard to the evidence given

by N., whether considered on its own or together with the other

matters complained of, rendered the applicant's trial unfair.

4. The witness R.

79. Repeated but unsuccessful attempts were made to bring the

named witness R. before the Regional Court, following which the

applicant withdrew his request to have him heard (see

paragraph 19 above). In the appeal proceedings R. was brought

before the court by force, but absconded before he could be

questioned (see paragraph 31 above). A subsequent attempt to

have him brought before the Court of Appeal was likewise

unsuccessful, after which no further attempt was made (see

paragraph 33 above).

80. Despite the Court of Appeal's efforts it was impossible

to secure R.'s attendance at the hearing. In the circumstances

it was open to the Court of Appeal to have regard to the

statement obtained by the police, especially since it could

consider that statement to be corroborated by other evidence

before it (see the Artner v. Austria judgment of 28 August 1992,

Series A no. 242-A, p. 10, para. 22).

Accordingly, no unfairness can be found in this respect

either.

5. The defence expert K. and the prosecution witness I.

81. The Court of Appeal refused to hear the expert K. while

agreeing to hear the police officer I. Both had been brought to

the hearing, K. by the defence and I. by the prosecution (see

paragraphs 31 and 33 above).

The Court of Appeal refused to hear K. for the reason

that as an expert rather than a witness he would not be able to

contribute to the elucidation of the facts of the case.

According to the defence, K. would have been able to testify

generally to the effect that statements made to the police by

drug addicts were often unreliable.

The evidence of the police officer I., on the other hand,

concerned the way in which the police went about obtaining

statements from drug addicts and ensuring that these were as

reliable as possible.

82. As was pointed out earlier (at paragraphs 67 and 78

above), decisions whether to allow evidence and what reliance to

place on admitted evidence are primarily the responsibility of

the domestic courts. The Court of Appeal could consider that the

evidence offered by K. would not have contributed to the

assessment which it was required to make, especially since in any

case a similar statement had already been made by the expert L.,

and it was open to the Court of Appeal to draw from I.'s evidence

the inferences which it did.

The Court therefore does not find that the fairness of

the criminal proceedings against the applicant was adversely

affected by the Court of Appeal's decision to hear I. but not K.

C. Conclusion

83. None of the alleged shortcomings considered on their own

lead the Court to conclude that the applicant did not receive a

fair trial. Moreover, it cannot find, even if the alleged

shortcomings are considered together, that the proceedings as a

whole were unfair.

In arriving at this conclusion the Court has taken into

account the fact that the domestic courts were entitled to

consider the various items of evidence before them as

corroborative of each other.

Accordingly, there has been no violation of Article 6

para. 1 taken together with Article 6 para. 3 (d)

(art. 6-1+art. 6-3-d) of the Convention.

FOR THESE REASONS, THE COURT

Holds, by seven votes to two, that there has been no

violation of Article 6 para. 1 taken together with

Article 6 para. 3 (d) (art. 6-1+art. 6-3-d) of the

Convention.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on

26 March 1996.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 55 para. 2 of Rules of Court B, the joint

dissenting opinion of Mr Ryssdal and Mr De Meyer is annexed to

this judgment.

Initialled: R. R.

Initialled: H. P.

JOINT DISSENTING OPINION OF JUDGES RYSSDAL AND DE MEYER

In this case, we agree in substance with the opinion of

Mr Danelius and the other eleven members of the Commission who

shared his view that there had been a breach of the applicant's

defence rights.

It is not only in drugs cases that problems may arise in

relation to the safety of witnesses. It is not permissible to

resolve such problems by departing from such a fundamental

principle as the one that witness evidence challenged by the

accused cannot be admitted against him if he has not had an

opportunity to examine or have examined, in his presence, the

witness in question.

In the instant case the applicant had this opportunity in

respect of the witness N., who withdrew his earlier statement.

The applicant did not have such an opportunity in relation to the

witness R., who "disappeared", or the witnesses Y.15 and Y.16,

who were heard only in the presence of his lawyer.

Moreover, Y.15 and Y.16 were anonymous witnesses whose

identity was only known to the investigating judge but not to the

applicant and his lawyer, nor to the Regional Court and the Court

of Appeal.



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