Instantie

Europese Commissie voor de Rechten van de Mens

Samenvatting

Het slachtoffer heeft aangifte gedaan van verkrachting door twee mannen door
wie zij, na een bezoek aan een nachtclub, naar huis is gebracht. Uit angst
voor represailles heeft zij gevraagd anoniem te mogen blijven. De
rechter-commissaris was niet op de hoogte van haar identiteit en heeft haar
onder ede gehoord. Er was een getuige die kon bevestigen dat het slachtoffer
met de twee mannen de nachtclub had verlaten. Ook deze getuige wilde anoniem
blijven en is onder ede door de rechter-commissaris gehoord, die de
identiteit van deze persoon niet kende.
De verdachte Baegen is veroordeeld op basis van de verklaring van het
slachtoffer, de verklaring van de medeverdachte, de verklaring van de moeder
van het slachtoffer en op basis van de bevindingen van de politie.
De Commissie in Straatsburg verklaarde Baegen op 9 december 1993 ontvankelijk
in zijn klacht dat artikel 6 lid 1 en 3 sub d EVRM zijn geschonden.
Het EHRM komt tot de conclusie dat de strafprocedure tegen de verdachte niet
onzorgvuldig is verlopen.

Volledige tekst

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 of the Convention. It
originated in an application (no. 16696/90) against the Kingdom of the
Netherlands lodged with the Commission under Article 25 by a Netherlands
national, mr. Wilhelmus Elisabeth Baegen, on 6 April 1990.
The Commission’s request referred to Articles 44 and 48 and to the
declaration whereby the Netherlands recognised the compulsory jurisdiction of
the Court (Article 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 (d) of the Convention.
2. The Chamber to be constituted included ex officio Mr. S.K. Martens, the
elected judge of Netherlands nationality (Article 43 of the Convention), and
Mr. R. Ryssdal, the President of the Court (rule 21 para. 3 (b)). On 27
January 1995, in het presence of the Registrar, the President drew by lot the
names of the other seven members, namely Mr. B. Walsh, Mr. R. Macdonald, Mr.
J. De Meyer, Mrs E. Palm, Mr. R. Pekkanen, Mr. A.B. Baka and Mr. P. Kuris
(Article 43 in fine of the Convention and Rule 21 para. 4).
3. As President of the Chamber (Rule 21 para. 5), Mr. Russdal, acting through
the Registrar, consulted the Agent of the Netherlands Government (`the
Government’) 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 Government’s memorial on 28 July
1995.
4. On 11 July 1995 the Commission produced to the Court certain documents
from the file on het proceedings before it, as requested by the Registrar on
het President’s instructions.
5. On 8 December 1994 the Registrar had sent to the applicant the enquiry
provided for in Rule 35 para. 3 (d). Despite repeated attempts by the
Registrar to obtain a response from the applicant, none was received and on
26 July 1995 the applicant was informed by the Registrar that the Court would
proceed with the case on the assumption that he had decided not to take part
in the present proceedings.
6. By letter received on 18 August 1995 the Government requested the Court to
strike the case out of its list pursuant to Rule 51 para. 2.
7. On 28 September 1995 the Chamber decided to dispense with a hearing in het
case, having satisfied itself that the condition for this derogation from its
usual procedure had been met (Rules 27 and 40).

As to the facts

I. Particular circumstances of the case
8. The applicant is a Netherlands national born in 1957 and resident in
Utrecht.
9. On the morning of 1 February 1986 a woman referred to hereinafter as Ms X
made a statement to the Utrecht municipal police to the effect that she had
been raped by two men.
10. Ms X opted to remain anonymous in the subsequent criminal proceedings on
the ground that she feared reprisals from the men who raped her.
Her home address, however, was mentioned in the police case file.
11. On the same day the responsible police officer made a request in writing
for a medical examination of Ms X. A copy of this request, which bears Ms X’s
full name, was among the documents submitted by the applicant to the
Commission.
Items of Ms X’s underclothing were sent to a forensic laboratory for
examination.
12. The applicant was arrested on 10 February 1986. Ms X was confronted with
him through a two-way mirror. She stated that she recognised the applicant as
the first of the men involved in raping her but did not remember whether she
had also been raped by the second man.
She again identified the applicant as the rapist two days later when she was
confronted with him in person, saying that she recognised not only his
appearance but also his voice.
13. On 14 February 1986 the police examined a third witness, Y, who like Ms X
wished to remain anonymous for fear of reprisals.
14. On 24 February 1986 a second suspect was arrested. Although initially he
denied all knowledge of what had happened, he later stated that the applicant
and Ms X had had sexual intercourse and that Ms X had consented thereto.
15. On 25 March the applicant was informed by the police that traces of semen
had been found in Ms X’s underwear and that it had been possible to identify
the blood group and genetic type. When asked to lend his co-operation to
blood and saliva tests he refused.
16. In the context of a preliminary investigation, the witness Y was heard on
oath by an investigating judge (rechter-commissaris) of the Utrecht Regional
Court (arrondissementsrechtbank) on 16 July 1986. Y repeated the statement he
had made earlier to the police.
17. On 4 August 1986 the investigating judge heard the second suspect, who
also repeated the statement which he had made to the police.
18. On 28 August 1986 the investigating judge heard Ms X on oath, as there
were reasons to assume that she would not appear in open court for fear of
reprisals, which fear the investigating judge considered well-founded. The
record of the interview states that Ms X’s identity was known to the Utrecht
municipal police. Ms X confirmed her statements to the police. On 28 August
1986 the record of the interview with Ms X was sent to counsel for the
applicant, who was invited to submit any additional questions to be put to Ms
X. Counsel for the applicant acknowledged receipt of the record by letter of
1 September 1986, but did not submit any questions.
19. At the request of counsel for the applicant, the investigating judge
heard Y again on 14 October 1986. On that occasion, Y replied to certain
written questions submitted by counsel for the applicant.
20. On 31 August 1987 the applicant was summoned to appear before the
Regional Court of Utrecht on 2 October 1987. Before the Regional Court be
denied the charge. At no point in het proceedings before the Regional Court
did either the applicant or his lawyer request the Regional Court to hear any
witnesses.
On 16 October 1987 the Regional Court convicted the applicant of rape and
sentenced him to twelve months’ imprisonment.
21. On 20 October 1987 the applicant filed an appeal to the Amsterdam Court
of Appeal (gerechtshof). On 2 September 1988 counsel for the applicant
submitted certain documents from the case file concerning a certain E., who
was suspected of having raped a person on 24 September 1986. In that case
file the identity of the victim was disclosed.
22. The Court of Appeal heard the case on 6 September 1988. The applicant
continued to protest his innocence. In his pleadings counsel for the
applicant requested the Court of Appeal to suspend its hearing or else refer
the case back to the investigating judge so that Ms X might be subjected to
further interrogation. Counsel referred to the documents which he had
submitted from the case file of criminal proceedings against E. and claimed
categorically that the alleged victim in that case was the same person as Ms
X. He submitted that in the case of E. it clearly appeared from several
statements by witnesses that Ms X was known for approaching men in sexually
explicit manner.
23. In its judgment of 20 September 1988 the Court of Appeal quashed the
judgment of the Regional Court for technical reasons, convicted the applicant
of rape, and sentenced him to twelve months’ imprisonment. It rejected the
request of counsel for the applicant to suspend the hearing or to refer the
case back to the investigating judge in order to have Ms S re-examined,
considering that it had been sufficiently informed.
24. An appeal on points of law filed by the applicant on 20 September 1988
was rejected by the Supreme Court (Hoge Raad) on 10 October 1989, one month
and ten days before the European Court of Human Rights delivered its judgment
in the case of Kostovski v. the Netherlands (judgment of 20 November 1989,
Series A no. 166).

II. Relevant domestic law and practise
25. For a statement of the relevant domestic law and practice at the time of
the event complained of, reference is made to the Court’s abovementioned
Kostovski judgment.

Proceedings before the Commission
26. In his application (no. 1669/90) of 6 April 1990 to the Commission the
applicant complained that he had not had a fair trial in that he had been
convicted on the basis of statements made by an anonymous witness whose
desire to remain anonymous was in any event unfounded. Moreover, he alleged
that the rights of the defence had been unduly restricted since, although he
had consistently challenged the reliability of the statements in question,
neither he nor his counsel had been able to question that witness directly.
He relied on Article 6 1 and 3 (d) of the Convention, which guarantee
everyone charged with a criminal offence the right to a fair trial and the
right to examine or have examined witnesses against him.
27. The Commission declared the application admissible on 9 December 1993. In
its report of 20 October 1994 (Article 31) it expressed the opinion that
there had been no violation of Article 6 1 and 3 (d) (fourteen votes to
twelve).
The full text of the Commission’s opinion and of the three separate opinions
contained in the report is reproduced as an annex to this judgement.

Final submissions by the Government to the Court
28. The Government concluded their memorial by expressing the opinion that
there had been no violation of Article 6 1 and 3 (d).

As to the Law
29. On 8 December 1994 the Registrar advised the applicant in writing, as
required by Rule 35 1 of rules of court B, that his case had been referred
to the court and invited him to confirm in writing that he wished to take
part in the proceedings and to designate a lawyer to represent him. The
applicant did not respond.
Similarly, he did not react to reminders which were sent to him on 11 May and
27 June 1995.
30. By letter dated 10 August and received by the Registrar on 18 August 1995
the Agent of the Government suggested that the non-participation of the
applicant constituted a `fact of a kind to provide a solution of the matter’
and requested the Court to strike the case out of its list in accordance with
Rule 51 2 of the Rule of Court B, which provides:
`When the Chamber is informed of a friendly settlement, arrangement or other
fact of a kind to provide a solution of the matter, it may, after consulting,
if necessary, the parties and the Delegate to the Commission, strike the case
out of the list.
The same shall apply where the circumstances warrant the conclusion that a
party who filed an application by virtue of Article 48 1 (e) of the
convention does not intend to pursue the application or if, for any other
reason, further examination to the case is not justified.’
31. By letter received on 28 august 1995 the Secretary to the Commission
advised the Registrar that the Delegate had no objection to the case being
struck out of the list.
32. The Court for its part, considers that the conditions for the application
of Rule 51 2, second sub-paragraph, are satisfied in the present case. In
particular, in its opinion, by reason of the failure of the applicant to come
forward despite repeated reminders by the Registrar, further examination of
the case is not justified. It notes, in addition, the position adopted by the
Government and the Commission.
Furthermore, the Court observes that in a number of previous cases it has had
occasion to express itself on the rights of the defence in cases involving
anonymous prosecution witnesses (see, particularly, the Kostovski judgment
cited above, which postdates the judgment of the Netherlands Supreme Court in
the present case) and that an other case against the same Contracting State
raising related issues is currently pending before it. In these circumstances
it cannot be said that there is any reason of public policy for continuing
the present proceedings (Rule 51 4 of Rules of Court B).
33. Accordingly, it is appropriate to strike the case out of the list.

FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the case out of the list.
Done in English and in French, and notified in writing under Rule 57 para. 2,
second sub-paragraph, of Rules of Court B, on 27 October 1995.

OPINION OF THE EUROPEAN COMMISSION OF HUMAN RIGHTS
(as expressed in the Commission’s report of 20 October 1994)
The Commission was composed as follows:
Mr. C.A. Norgaard, President, Mr. S. Trechsel, Mr. A. Weitzel, Mr. F.
Ermacora, Mr. E. Busuttil, Mr. Gaukur Jörundsson, Mr. A.S. Gözübüyük, Mr.
J.-C. Soyer,
Mr. H.G. Schermers, Mr. H. Danelius, Mrs. G.H. Thune, Mr. F. Martínez, Mr.
C.L. Rozakis, Mrs. J. Liddy, Mr. L. Loucaides, Mr. J.-C Geus, Mr. M.P.
Pellonpää, Mr. G.B. Reffi, Mr. M.A. Nowicki, Mr. I. Caral Barreto, Mr. B.
Conforti, Mr. N. Bratza, Mr. J. Mucha, Mr. E. Konstantinov, Mr. D. Sváby, Mr.
G. Ress, and Mr. H.C. Krüger, Secretary.

Opinion of the Commission

A. Complaint declared admissible
62. The Commission had declared admissible the applicant’s complaint under
Article 6 paras. 1 and 3 (d) of the Convention that he did not have a fair
trail in that he was convicted on the basis of declarations of an anonymous
witness, whom neither he nor his lawyer had the opportunity to question
directly.

B. Point at issue
63. The point at issue is accordingly whether there has been in the present
case a violation of Article 6 paras. 1 and 3 (d) of the Convention.

C. As regards Article 6 of the Convention
64. Article 6 1 and 3 of the Convention, in so far 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;
…’
65. The applicant complains that he did not have a fair trial in that he was
convicted on the basis of declarations made y an anonymous witness, Ms X He
submits that neither he nor his lawyer had an opportunity to question ms X,
whose credibility was questionable and whose statements he had disputed all
the time. he submits that the judges who convicted him were prevented from
observing Ms X’s demeanour during questioning and thus from forming their own
opinion of her reliability.
66. The Government refer to the supreme court’s – posterior – case-law
concerning anonymous witnesses (paragraph 61 of the report). They submit
that, if the defence has not asked for the witness to be examined, if the
finding of guilt is based to a significant extent on other evidence from
non-anonymous sources and if the court shows that is has used the anonymous
statement with due care and restraint, exceptions can be made from the
conditions laid down in that case-law.
67. The Government further submit that the investigation judge heard Ms X
under oath and indicated in the minutes of the investigation that she (the
judge) considered Ms X’s fear of reprisals, on account to which she wished to
remain anonymous, to be well-founded.
68. The Government argue that the applicant failed to avail himself of the
opportunity to have the investigating judge put questions in writing to Ms X
to be examined. He only did so in his pleadings before the Court of Appeal.
Moreover, the applicant’s conviction was not based solely on the statements
of ms X. The statement of the applicant’s co-accused K. constituted a
significant element of evidence.
69. Finally, the Government observe that the Court of Appeal, in its judgment
of 20 September 1988, declared that `[it had] used the statements of the
anonymous witness with caution and [had] used the statements of the anonymous
witness with caution and [had] assessed their reliability in the light of the
other means of evidence’.
70. As the guarantees in paragraph 3 (d) of Article 6 are specific aspects of
the right to a fair trial set forth in paragraph 1 of this Article, the
Commission will consider the complaints under the two provisions taken
together (see Eur. Court HR, Asch v. Austria judgment of 26 April 1991,
Series a no. 203, p. 10, 25).
71. The Commission recalls that the admissibility of evidence is primarily
governed by the rules of domestic law, and that, as a rule, it is for the
national courts to assess the evidence before them. The task of the
Convention organs is to ascertain whether the proceedings in their entirety,
including the way in which evidence was taken, were fair (see the previously
cited Asch judgment, p. 10, 26; and Eur. Court HR, Edward v. the United
Kingdom judgment of 16 December 1992, Series A no. 247-B pp. 34-35, 34).
72. All evidence must normally be produced in the presence of the accused at
a public hearing with a view to adversarial argument. However, the use in
evidence of statements obtained at the stage of the police inquiry and the
judicial investigation is not in itself inconsistent with paragraphs 3 (d)
and 1 of article 6, provided that the rights of the defence have been
respected. As a rule, these rights require that the defendant be given an
adequate and proper opportunity to challenge and question a witness against
him either when he was making his statements or at a later stage of the
proceedings (see Eur. Court HR, Saidi v. France judgment of 20 september
1993, Series A no. 261-C, p. 56, 43).
73. As to the notion of `witness’, the Commission recalls that although Ms X
did not testify at a hearing, she should, for the purposes of Article 6 3
(d) of the Convention, be regarded as a witness – a term to be given its
autonomous interpretation – because her statements, as taken down by the
police and investigating judge, were used in evidence by the domestic courts
(see the previously cited Asch judgment, p. 10, 25).
74. The Commission further recalls that article 6 does not grant the accused
an unlimited right to secure the appearance of witnesses in court. It is
normally for the national Courts to decide whether it is necessary to or
advisable to hear a witness (see decision no 8231/78 of 6 March 1982,
Decisions and Reports 28, p. 5 and Eur. court HR, Briemont v. Belgium
judgment of 7 July 1989, Series A no. 158, p. 31, 89).
75. The Commission notes that the applicant’s conviction was based, inter
alia, on Ms X’s statements. The applicant was confronted with Ms X before the
police but neither he nor his lawyer had an opportunity to examine her
directly.
76. The commission further notes that Ms X based her request to remain
anonymous on a fear of reprisals and that this fear was considered
well-founded by the investigating judge.
77. The Commission has also regard to the special features of criminal
proceedings concerning rape and other sexual offenses. Such proceedings are
often conceived of as an ordeal by the victim, in particular when the latter
is unwillingly confronted with the defendant. In the assessment of the
question whether or not in such proceedings an accused received a fair trial,
account must be taken of the right to respect for the victim’s private life.
Therefore, the Commission accepts that in criminal proceedings concerning
sexual abuse certain measures may be taken for the purpose of protecting the
victim, provided that such measures can be reconciled with an adequate and
effective exercise of the rights of the defence.
78. The Commission observes that, during the preliminary judicial
investigation, the applicant failed to avail himself of the offer of the
investigating judge to put written questions to Ms X, that in the proceedings
before the Regional Court he did not request an examination of Ms X either
before this court or the investigating judge, and that the applicant did not
request the prosecution authorities so summon her as a witness for the
hearing of 6 September 1988 before the Court of Appeal. It was only in the
course of that last hearing that he requested the Court to order an
examination of Ms X.
79. The Commission further observes that the applicant’s conviction did not
rest solely on the statements of Ms X. The Court of Appeal also used in
evidence statements of police officers, the statement of Ms X’s mother, and
the statement of K. All those statements, more or less, corroborated the
version of events Ms X had given. They ware not, however, consistent with the
applicant’s statements on an number of points. In the course of the
proceedings before the trial courts, the applicant never requested an
examination of these persons.
80. Furthermore, it does not appear that, in the course of the criminal
proceedings against him, the applicant had no opportunity to challenge Ms X’s
version of the events, could not properly challenge her reliability, or could
not challenge the other evidence against him. Before the Court of Appeal, the
applicant’s lawyer did in fact challenge Ms X’s reliability on the basis of a
file concerning criminal proceedings against E. In this respect the
Commission also notes that the applicant refused to undergo a blood and
saliva test, the result of which could have supported his allegation that he
never had had intercourse with Ms X.
81. In these circumstances, the Commission is of the opinion that the
criminal proceedings against the applicant, considered as a whole, cannot be
regarded as unfair.

Conclusion
82. The Commission concludes, by fourteen votes to twelve, that in the
present case there has been no violation of Article 6 paras. 1 and 3 (d) of
the Convention.

Rechters

Mrs. Ryssdal, Walsh, Macdonald, De Meyer, Martens, Palm, Pekkanen Baka,Kuris, Petzold, Mahoney