Instantie
Europese Commissie voor de rechten van de mens
Samenvatting
F is veroordeeld tot zes jaar onvoorwaardelijke gevangenisstraf en tot
elf jaar ontzetting uit het recht tot uitoefening van het beroep van
geneeskundige (RN 1990, 118, RN 1991, 141 en RN 1991, 208). F heeft in
cassatie aangevoerd dat zijn verzoek tot het horen van de slachtoffers
onterecht is afgewezen. Het hof was van oordeel dat de verdachte door
het achterwege blijven van dat verhoor redelijkerwijze niet in zijn
verdediging kan worden geschaad. De Hoge Raad is van mening dat dit
oordeel niet onbegrijpelijk is en wijst het cassatiemiddel af. F heeft
op 23 december 1991 een klacht ingediend bij de Europese Commissie voor
de rechten van de mens dat artikel 6 EVRM is geschonden omdat zijn
verzoek tot het horen van de slachtoffers is afgewezen. De Commissie
verklaart de klacht van F ontvankelijk.
Volledige tekst
The facts
1. The particular circumstances of the case
The applicant is a Dutch citizen, born in 1934, residing in Nijmegen.
Before the Commission, he is represented by Mr. G. Spong, a lawyer
practising in The Hague.
The facts of the case, as submitted by the parties, may be summarised
as follows.
The applicant is a psychiatrist. From 1970 to 1 February 1989 he was
employed by the H. Foundation in Z., the Netherlands. From 1973 until
the end of 1985 he was director and senior medical officer of the
“D.L” house of the H. Foundation. In this institution, minors with
metal problems are treated.
After several complaints had been made to the police, alleging that the
applicant had abused patients under his care and had committed
indecencies during a long period, a police investigation was carried
out in 1989. In January and February 1989, a large number of persons
were questioned by the police, including former patience and former
staff members of the “D.L.” house.
In May 1989, the investigating judge (rechter-commissaris) heard, inter
alia, three former patients, J.T. and D, who alleged that they had been
abused by the applicant. The applicant’s lawyer was present at these
hearings and was given opportunity to question them. They confirmed the
statements they had previously made before the police.
A fourth alleged victim C, however, did not appear before the
investigating judge. Initially, she had not been willing to bring a
complaint against the applicant at all, according to the police due to
psychological and emotional problems related to the abuse allegedly
suffered. She later changed her mind and agreed to make a statement
before the police, which she did on 27 February 1989.
When C was subsequently summoned to appear before the investigating
judge, she or her social counsel informed the investigating judge’s
registrar by telephone that she did not wish to appear before the
investigating judge. No reasons were given for C’s decision.
On 30 May 1990, the applicant, who denied all charges, was convicted by
the Regional Court (Arrondissementsrechtbank) of Arnhem of (a) multiple
abuse, as a doctor in a charitable institution, of a person admitted
thereto, (b) multiple indecent assault and (c) multiple rape. The
applicant was sentenced to six years’ imprisonment. In addition his
right to practise medicine was suspended for a period of eleven years.
Both the applicant and the public prosecutor filed an appeal against
the judgment of 30 May 1990 with the Court of Appeal (Gerechtshof) of
Arnhem.
In the course of the proceedings before the Court of Appeal, the
applicant’s lawyer repeatedly requested the Court to hear J., T., D and
C. The applicant’s lawyer argued that many other witnesses had been
heard since May 1989, when J, T, and D had been examined; he wished to
confront them with these new statements, and in particular to question
C., whom he had never been able to examine. The Court of Appeal
rejected these requests, considering:
het horen van de slachtoffers ter zitting (als getuigen onder ede)
herhaald. Het hof wijst dat verzoek nogmaals af omdat het van oordeel
is dat de verdachte door het achterwege blijven van dat verhoor
redelijkerwijze niet in zijn verdediging kan worden geschaad. (…) De
aangeefsters (J, T en D) zijn naar aanleiding van hun aangiften bij de
politie door de rechter-commissaris gehoord, in bijzijn van de raadsman
van de verdachte. Deze heeft gelegenheid gehad om deze getuigen de
vragen te stellen die hij in het belang van de verdediging achtte.
Omtrent de aangeefster (C) heeft de politie op blz. 13 van het proces-
verbaal nr. 3B/89 gerelateerd, dat het aanvankelijk niet mogelijk was,
contact met dit slachtoffer te krijgen, omdat zij door psychische en
emotionele problemen niet in staat was aangifte te doen. Naar ’s Hof
oordeel moet ook het proces-verbaal van de rechter-commissaris d.d. 25
april 1990, dat zich in het dossier bevindt, inhoudende dat aangeefster
of haar hulpverleenster heeft meegedeeld dat eerstgenoemde geen gevolg
geeft aan de oproep om voor de rechter-commissaris te verschijnen, in
dat licht worden bezien. Derhalve is te verwachten, dat aangeefster
ondanks de daarop bestaande sancties, bij oproeping niet zal voldoen
aan haar verplichting tot verschijning en tot het afleggen van een
verklaring.”
his request to hear the victims (as witnesses under oath) before the
court. The court again rejects this request as it considers that the
rights of the defence cannot reasonably be impaired by the absence of
such a hearing. (…) On the basis of their reports to the police, the
informants (J, T. and D) have been heard by the investigating judge, in
the presence of the applicant’s lawyer. He has had the opportunity to
put the questions, which he considered to be in the interest of the
defence, to these witnesses. As regards informant (C), the police have
stated on page 13 of the proces- verbal nr. 3B/89 that initially it had
been impossible to contact this victim, as due to her psychological and
emotional problems she was incapable to report to the police. In the
opinion of the court the proces- verbal of the investigating judge of
25 April 1990, which is included in the case file and indicated that
the informant or her social worker have stated that the former will not
comply with the summons to appear before the investigating judge,
should be seen against the same background. Consequently, it is to be
expected that the informant, when summoned, will not comply with her
obligation to appear and to make a statement, despite the sanctions
that this refusal might entail.”
In its judgment of 14 November 1990, the Court of Appeal quashed the
Regional Court’s judgment and, after a new examination of the facts and
evidence, convicted the applicant, who still denied all charges, of (a)
multiple abuse, as a doctor in a mental hospital, of a person admitted
thereto, (b) multiple indecent assault and (c) multiple rape. The Court
of Appeal imposed the same sentence as the Regional Court.
The Court of Appeal’s conviction was based on:
– the applicant’s statements before the police, the Regional Court and
the Court of Appeal;
– the statements of J before the police and the investigating judge;
– the statement of J’s general practitioner before the investigating
judge;
– a letter of 23 July 1983 which J wrote to her general practitioner
describing the alleged abuse by the applicant;
– the statement of T before the police and the investigating judge;
– the statement of D before the police and the investigating judge;
– the statement before the police of an employee of a mental hospital
where D was admitted after having left the “D.L.” house and who had
treated D;
– the statement of C before the police;
– the statement before the police of V a friend of C whom she had met
and had friendly relations with when both of them were patients in the
“D.L.” house and to whom C had confided that she was repeatedly being
abused by the applicant and who had advised C to write about the matter
to C’s therapist;
– the statements before the police and the investigating judge of K, a
group leader at the “D.L.” house, who in 1988 received a letter from C
about the applicant’s abuse and who had taken the matter up with his
superiors;
– a statement before the police of a member of the Board of the H.
Foundation who in November 1988 had a discussion with the applicant
about the complaints against the latter;
– the statements before the police and the investigating judge of C’s
therapist H.C. to whom C had complained that the applicant was abusing
her;
– the statements before the police and the investigating judge of
therapist A.H., who had treated C’s friend V and to whom C, V and H.C.
went in order to discuss the applicant’s abuse of C; and
– the statements before the investigating judge of the police officers
who had taken down the various statements made before the police on
this case about the investigation and the method of questioning of the
persons heard by them.
In his subsequent appeal in cassation to the Supreme court (Hoge Raad)
the applicant complained, inter alia, that the Court of Appeal had
violated Article 6 paras. 1 and 3 (d) of the Convention by rejecting
his request to hear the four alleged victims. With respect to J, T and
D, he argued that the Court of Appeal had not properly given reasons
for its rejection. With respect to C, he referred to the case-law of
the European Court and Commission of Human Rights, arguing that the
defence had not had “adequate and proper opportunity to challenge and
question” her. According to the applicant, the Court of Appeal should
either have summoned C or should have refrained from using her
statement in evidence. He emphasised that C’s statement constituted and
important basis for his conviction.
In its judgment of 1 October 1991, the Supreme Court rejected the
appeal in cassation. It found that the Court of Appeal’s refusal to
summon J, T and D was reasonable, taking into account that the
applicant’s lawyer had not given specific reasons for his request to
hear them again, apart from a very general intention to confront them
with the statements of other witnesses.
As to C, the Supreme Court accepted that the Court of Appeal had
decided not to summon her given the situation in which she apparently
found herself. The Supreme Court held that the Court of Appeal could
reasonably use her statement in evidence, as it coincided with the
other statements obtained.
On 27 January 1992, the State Secretary of Justice (Staatssecretaris
van justitie) rejected the applicant’s appeal for pardon (gratie).
2. Relevant domestic law and practice
Section 168 of the Dutch Code of Criminal Procedure (Wetboek van
Strafvordering, hereinafter referred to as “CCP”) provides that each
District Court has one or more investigating judges to whom criminal
cases are entrusted. They are nominated from amongst the members of the
District Court.
It is open to the public prosecutor, under Section 181 CCP, to request
what is called -in order to distinguish it from the subsequent
investigation at the trial- a preliminary judicial investigation
(gerechtelijk vooronderzoek).
It is the task of the investigating judge to conduct such an
investigation. In that event he will hear the suspect, witness and
experts as soon as possible and as often as necessary (Section 185
CCP). Both the public prosecutor and defence counsel area, in
principle, entitled to be present at those hearings (Sections 185 para.
2 and 186 CCP) and, even if they are absent, to give notice of
questions they wish to have put. Most investigating judges invite and
accused and his counsel to attend their hearings of witnesses.
The preliminary judicial investigation provides a basis for a decision
by the prosecuting authorities with regard to the further prosecution
of a suspect, and also serves to clarify matters which cannot properly
be investigated at the trial. The investigating judge must act
impartially, by also collecting evidence which might exculpate the
suspect. The investigating judge will close his investigation when he
considers it is completed. Both the suspect and the prosecuting
authorities will be informed about the closure of the preliminary
judicial investigation (Section 237 CCP).
If the public prosecutor finds that the results of the preliminary
judicial investigation justify further prosecution, he will notify the
suspect and commit the case for trial. The trial will then follow.
At the time in question, the relevant law and practice as regards the
summoning of witnesses to a court hearing was as follows: a witness
whom the defence had asked to call before the beginning of the trial,
and who had not been summoned by the public prosecutor, would be
summoned by the court, unless the court – considering summoning
superfluous or fruitless – found that the suspect could, in all
fairness, not be harmed in his defence by refusing the summoning of the
witness (Section 280 para. 4CCP).
As regards the evidence in criminal proceedings, Section 338 CCP
provides that the finding that the accused has committed the act with
which he is charged may be a judge only if he has been so convinced
through the investigation at the trial, by the contents of “legal means
of evidence” (wettige bewijsmiddelen). The latter consist, according to
Section 339 CCP, exclusively of (i) what the judge has according to
Section 339 CCP, exclusively of (i) what the judge has himself
observed; (ii) statements made by the accused; (iii) statements made by
a witness; (iv) statements made by an expert; and (v) written
documents.
Evidence in the third category is defined in Section 342 CCP, which
reads:
statement, made in the investigation at the trial, about facts or
circumstances which he himself has seen of experienced. 2. The judge
cannot accept as proven that the defendant has committed the act with
which he is charged, solely on the statement of one witness.”
Evidence in the fifth category is defined in Section 344 CCP, which, as
far as relevant, reads:
official reports and other documents, drawn up in the lawful form by
bodies and persons who have the proper authority and containing their
statement regarding facts or circumstances which they themselves have
seen or experienced; 3 ….; 4 ….; 5 all other documents; but these
are valid only in conjunction with the content of other means of
evidence. 2. (…).”
In actual practice, the course of a procedure in a criminal case
differs from that suggested by the CCP. This is to a considerable
extent due to a leading judgment of the Supreme Court of 20 December
1926 (Nederlandse Jurisprudentie 1927, no. 85). According to this
judgment: -a statement by a witness concerning what he was told by
another person (hearsay evidence) may be used as evidence, albeit with
the utmost caution; -it is permissible to use as evidence declarations
made by the accused or by a witness to a police officer, as recorded in
the latter’s official report.
These rulings permit the use, as “legal means of evidence” within the
meaning of Sections 338 and 339 CCP, of statements made by a witness
not at the trial but before a police officer or the investigating
judge, provided they are recorded in an official report which is read
out in court. In the great majority of cases, witnesses are not heard
at the trial but either only by the police or also by the examining
magistrate.
The law does not make the presence of counsel for the defence
compulsory during the investigation by the police.
Section 292 CCP enables the President of the court to order an accused
to leave the court-room so that a witness may be examined out of his
presence. If such an order is made, counsel for the defence may
question the witness and the accused shall be told immediately what has
happened during his absence and only then will the investigation be
resumed (Section 292 para. 2 CCP). Thus, on returning to the court-room
the accused may avail himself of his right to question the witness.
Complaint
The applicant complains that the domestic courts violated Article 6
paras. 1 and 3 (d) of the Convention by rejecting his repeated requests
to hear J., T., D. and C. at the trial. With regard to C., he argues
that she had only made a statement to the police and that the defence
had not had an “adequate and proper opportunity to challenge and
question” her. In this respect he refers to the Kostovski, Delta, Isgro
and Saidi judgments of the European Court of Human Rights, and the
Commission’s Report in the Cardot case.
Proceedings before the commission The application was introduced on 23
December 1991 and registered on 18 February 1992. On 2 March 1994, the
Commission (Second Chamber) decided to communicate the application to
the respondent Government and invite them to submit written
observations on the admissibility and merits of the application. After
an extension of the time limit, the Government’s observations were
submitted on 20 May 1994. The applicant submitted his observations in
reply on 8 June 1994.
The law The applicant complains under Article 6 paras. 1 and 3 (d) of
the Convention that he did not receive a fair trial, as the Court of
Appeal rejected his repeated requests to summon the four alleged
victims to the hearing and used their statements in evidence.
Article 6 paras. 1 and 3 of the Convention, insofar as relevant, reads:
“1. In the determination (…) of any criminal charge against him,
everyone is entitled to a fair (…) hearing (…) by (a) (…)
tribunal (…). 3. Everyone charged with a criminal offence has the
following minimum rights: (…) (d) to examine or have examined
witnesses against him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as witnesses against
him (…).”
The Government submit that the applicant had a fair trial. He did not,
in the proceedings before the Regional Court of Arnhem, ask for
witnesses to be heard. The witnesses J., T., and D. were examined by
the investigating judge in the presence of the applicant’s lawyer, who
had the opportunity to question them. The use in evidence of their
statements is therefore consistent with para. 3 (d) of Article 6. C.’s
statement could be used in evidence without violating the right of the
applicant to a fair hearing, given C.’s psychological and emotional
problems and the consequences that a questioning would have for her.
The applicant submits that he did not have a fair trial. The defence
never had the opportunity to question C. The proof of the facts
concerning C. rests mainly on her own statement. The rights of the
applicant are not subordinate to the rights of the victim.
The Commission, having regard to the parties’s submissions, considers
that the application raises issues of fact and law which can only be
resolved by an examination of the merits. The application can,
therefore, not be declared manifestly ill-founded within the meaning of
Article 27 para. 2 of the Convention. No other grounds for
inadmissibility having been established. For these reasons, the
Commission, by a majority, declares the application admissible, without
prejudging the merits of the case.
Rechters
Mrs Trechsel, President, Daelius, Jorundsson, Soyer, Schermers,Thune, Martinez, Loucaides, Geus, Nowicki, Cabral Barreto, Mucha enSvaby