DOORSON v. THE NETHERLANDS
ECLI | ECLI:CE:ECHR:1994:1011REP002052492 |
Respondent State | Holanda |
Date | 29 November 1993 |
Application Number | 20524/92 |
Court | Commission. Plenary (European Commission of Human Rights) |
Counsel | HAMER ; G.P. ; lawyer ; Amsterdam |
Applied Rules | 6;6-1;6-3-d |
EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 20524/92
Désiré Doorson
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 11 October 1994)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 15) . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5 - 10). . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 11 - 15) . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 16 - 61). . . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 16 - 44) . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 45 - 61) . . . . . . . . . . . . . . . . . . . . 7
III. OPINION OF THE COMMISSION
(paras. 62 - 84). . . . . . . . . . . . . . . . . . . . . . .11
A. Complaints declared admissible
(para. 62) . . . . . . . . . . . . . . . . . . . . . . .11
B. Point at issue
(para. 63) . . . . . . . . . . . . . . . . . . . . . . .11
C. As regards Article 6 of the Convention
(paras. 64 - 83) . . . . . . . . . . . . . . . . . . . .11
CONCLUSION
(para. 84) . . . . . . . . . . . . . . . . . . . . . . .14
DISSENTING OPINION OF Mr. H. DANELIUS, JOINED BY
MM. A. WEITZEL, A.S. GÖZÜBÜYÜK, J.-C. SOYER,
C.L. ROZAKIS, Mrs. J. LIDDY, MM. L. LOUCAIDES, G.B. REFFI,
M.A. NOWICKI, N. BRATZA, J. MUCHA and E. KONSTANTINOV . . . . . . .15
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . .17
APPENDIX II : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . . .18
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Dutch citizen, born in 1958 and resident in
Amsterdam. He was represented before the Commission by Mr. G.P. Hamer,
a lawyer practising in Amsterdam.
3. The application is directed against the Netherlands. The
respondent Government were represented by their Agent,
Mr. K. de Vey Mestdagh of the Netherlands Ministry of Foreign Affairs.
4. The case concerns the alleged unfairness of criminal proceedings
against the applicant in respect of the administration of evidence
before the trial court. The applicant invokes Article 6 paras. 1 and
3 of the Convention.
B. The proceedings
5. The application was introduced on 27 June 1992 and registered on
24 August 1992.
6. On 8 February 1993 the Commission decided, pursuant to
Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government's observations were submitted on 23 April 1993.
The applicant replied on 1 June 1993.
8. On 29 November 1993 the Commission declared admissible the
applicant's complaints relating to the fairness of the proceedings and,
in particular, to the restrictions of the rights of defence during the
hearing of witnesses. It declared inadmissible the remainder of the
application.
9. The text of the Commission's decision on admissibility was sent
to the parties on 8 December 1993 and they were invited to submit
further observations. The Government submitted observations on
28 January 1994 and the applicant's observations were submitted on
8 February 1994.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present :
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
12. The text of this Report was adopted on 11 October 1994 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is :
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. In August 1987 the prosecution authorities decided to start an
action against the nuisance caused by drug trafficking in Amsterdam.
By showing photographs of known drug dealers to about 150 drug abusers,
the police collected statements of the latter. However, since after a
similar action in 1986 drug abusers who had made statements to the
police had been threatened, it appeared that most drug abusers only
were prepared to make anonymous statements about drug dealers.
17. In September 1987 the police received information from a person
referred to by the police under the code name GH.021/87 that the
applicant was engaged in drug trafficking. After having found the
applicant's identification photograph, which had been taken in 1985,
in their records, the police included it in the collection of
photographs they showed to drug abusers.
18. On 12 April 1988, after some drug abusers had declared to the
police that they recognised the applicant's photograph and that he had
sold drugs, he was arrested as suspected of drug offences. Six of these
drug abusers 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. Moreover,
there were two persons whose identity was disclosed, namely R. and N.
19. 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 requested the police to bring these witnesses before him
on 30 May 1988 between 9.30 and 16.00 hours. The applicant's lawyer was
informed about this and was invited to attend the questioning of these
witnesses before the investigating judge.
20. On 30 May 1988 the applicant lawyer arrived at 9.30 hours at the
investigating judge's chambers, but, after some time had elapsed and
none of the witnesses had appeared, he believed that no questioning
would take place and left for another appointment. After the lawyer had
left, the witnesses turned up and were heard by the investigating judge
in the absence of the lawyer, witness Y.15 at about 11.15 hours and
witness Y.16 at about 15.00 hours.
21. On 19 July 1988 the applicant appeared before the Regional Court
(Arrondissementsrechtbank) of Amsterdam on charges of drug trafficking.
Following the prosecutor's request, the court decided to adjourn its
examination until 25 August 1988.
22. On 25 August 1988 the Regional Court resumed the proceedings. As
the Regional Court was differently composed, it recommenced its
examination of the case. The court rejected a request by the defence
to refer the case back to the investigating judge for an examination
of the six anonymous witnesses and, upon the defence's request thereto,
ordered that the witnesses R. and N. be brought before the court. The
Regional Court further rejected the applicant's request for his release
from his detention on remand and adjourned its further examination
until 4 October 1988.
23. 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 court
rejected the defence's new request to have the six anonymous witnesses
examined. The witness N. had appeared, R. had not appeared. N. was
questioned before the court and both parties to the proceedings were
provided with an opportunity to put questions to him. N. changed his
previous statement and now denied that the applicant had sold drugs to
him. The court adjourned its further examination until 29 November 1988
ordering the appearance of the witnesses R. and N., and of L., an
expert in the field of problems related to drug trafficking and abuse.
24. On 29 November 1988 the Regional Court resumed its examination.
The expert L. had appeared and was questioned before the court. The
witnesses R. and N. had not appeared. The defence withdrew its request
to have R. and N. examined before the court in order to avoid a further
adjournment of the proceedings.
25. On 13 December 1988 the Regional Court convicted the applicant
of drug trafficking and sentenced him to 15 months' imprisonment.
26. The applicant appealed to the Court of Appeal (Gerechtshof) of
Amsterdam which held a number of hearings in the case.
27. The applicant requested that the six anonymous witnesses be heard
by the Court of Appeal. On 30 November 1989 the Court of Appeal decided
to verify the necessity of upholding the anonymity of the witnesses and
to this end decided to refer the case back to the investigating judge.
The Court of Appeal also requested the investigating judge to examine
the anonymous witnesses whilst giving the...
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