DOORSON v. THE NETHERLANDS

ECLIECLI:CE:ECHR:1994:1011REP002052492
Respondent StateHolanda
Date29 November 1993
Application Number20524/92
CourtCommission. Plenary (European Commission of Human Rights)
CounselHAMER ; G.P. ; lawyer ; Amsterdam
Applied Rules6;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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