VAN MECHELEN AND OTHERS v. THE NETHERLANDS (55/1996/674/861-864) 23 April 1997: reliance on the evidence of anonymous police officers

SUMMARY
The Netherlands - reliance on the evidence of anonymous police officers

I. Article 6 §§ 1 and 3 (d) of the Convention

Principles following from Court's case-law reiterated.
The balancing of the interests of the defence against arguments in favour of maintaining the anonymity of witnesses raises special problems if the witnesses in question are members of the police force of the State, who owe a general duty of obedience to the
State's executive authorities and usually have links with the prosecution - for these reasons alone their use as anonymous witnesses should be resorted to only in exceptional circumstances - in addition, it is in the nature of things that their duties, particularly in the case of arresting officers, may involve giving evidence in open court.
On the other hand, the Court has recognised in principle that, provided that the rights of the defence are respected, it may be legitimate for the police authorities to wish to preserve the anonymity of an agent deployed in undercover activities, for his own or his family's protection and so as not to impair his usefulness for future operations.
Having regard to the place that the right to a fair administration of justice holds in a democratic society, any measures restricting the rights of the defence should be strictly necessary - if a less restrictive measure can suffice then that measure should be applied.
In the present case, the defence was not only unaware of the identity of the police witnesses but was also prevented from observing their demeanour under direct questioning, and thus from testing their reliability - it has not been explained to the Court's satisfaction why it was necessary to resort to such extreme limitations on the right of the accused to have the evidence against them given in their presence, or why less far-reaching measures were not considered - it cannot be said that the handicaps under which the defence laboured were counterbalanced by the procedures followed.
Moreover, the only evidence relied on by the Court of Appeal which provided positive identification of the applicants as the perpetrators of the crimes were the statements of the anonymous police officers - that being so the conviction of the applicants was based "to a decisive extent" on these anonymous statements.
The present case distinguished from that of Doorson v. the Netherlands.

Conclusion: violation (six votes to three).

B. The Court's assessment

1. Applicable principles
49. As the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, the Court will examine the complaints under Article 6 §§ 1 and 3 (d) taken together (see, among many other authorities, the above-mentioned Doorson judgment, pp. 469-470, § 66).

50. 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 Doorson judgment, p. 470, § 67).

51. In addition, all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule, paragraphs 1 and 3 (d) of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see the Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 21, § 49).

52. As the Court had occasion to state in its Doorson judgment (ibid., p. 470, § 69), the use of statements made by anonymous witnesses to found a conviction is not under all circumstances incompatible with the Convention.

53. In that same judgment the Court noted the following:

"It is true that Article 6 does not explicitly require the interests of witnesses 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 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." (see the above-mentioned Doorson judgment, p. 470, § 70)

54. However, if the anonymity of prosecution witnesses is maintained, the defence will be faced with difficulties which criminal proceedings should not normally involve. Accordingly, the Court has recognised that in such cases Article 6 § 1 taken together with Article 6 § 3 (d) of the Convention requires that the handicaps under which the defence labours be sufficiently counterbalanced by the procedures followed by the judicial authorities (ibid., p. 471, § 72).

55. Finally, it should be recalled that a conviction should not be based either solely or to a decisive extent on anonymous statements (ibid., p. 472, § 76).

2. Application of the above principles
56. In the Court's opinion, the balancing of the interests of the defence against arguments in favour of maintaining the anonymity of witnesses raises special problems if the witnesses in question are members of the police force of the State. Although their interests — and indeed those of their families — also deserve protection under the Convention, it must be recognised that their position is to some extent different from that of a disinterested witness or a victim. They owe a general duty of obedience to the State's executive authorities and usually have links with the prosecution; for these reasons alone their use as anonymous witnesses should be resorted to only in exceptional circumstances. In addition, it is in the nature of things that their duties, particularly in the case of arresting officers, may involve giving evidence in open court.

57. On the other hand, the Court has recognised in principle that, provided that the rights of the defence are respected, it may be legitimate for the police authorities to wish to preserve the anonymity of an agent deployed in undercover activities, for his own or his family's protection and so as not to impair his usefulness for future operations (see the above-mentioned Lüdi judgment, p. 21, § 49).

58. Having regard to the place that the right to a fair administration of justice holds in a democratic society, any measures restricting the rights of the defence should be strictly necessary. If a less restrictive measure can suffice then that measure should be applied.

59. In the present case, the police officers in question were in a separate room with the investigating judge, from which the accused and even their counsel were excluded. All communication was via a sound link. The defence was thus not only unaware of the identity of the police witnesses but were also prevented from observing their demeanour under direct questioning, and thus from testing their reliability (see the above-mentioned Kostovski judgment, p. 20, § 42 in fine).

60. It has not been explained to the Court's satisfaction why it was necessary to resort to such extreme limitations on the right of the accused to have the evidence against them given in their presence, or why less far-reaching measures were not considered.
In the absence of any further information, the Court cannot find that the operational needs of the police provide sufficient justification. It should be noted that the Explanatory Memorandum of the Bill which became the Act of 11 November 1993 (see paragraph 42 above) refers in this connection to the possibilities of using make-up or disguise and the prevention of eye contact.

61. Nor is the Court persuaded that the Court of Appeal made sufficient effort to assess the threat of reprisals against the police officers or their families. It does not appear from that court's judgment that it sought to address the question whether the applicants would have been in a position to carry out any such threats or to incite others to do so on their behalf. Its decision was based exclusively on the seriousness of the crimes committed (see paragraph 26 above).
In this connection, it is to be noted that Mr Engelen, a civilian witness who in the early stages of the proceedings had made statements identifying one of the applicants as one of the perpetrators, did not enjoy the protection of anonymity and it has not been claimed that he was at any time threatened.

62. It is true — as noted by the Government and the Commission (see paragraph 48 above) — that the anonymous police officers were interrogated before an investigating judge, who had himself ascertained their identity and had, in a very detailed official report of his findings, stated his opinion on their reliability and credibility as well as their reasons for remaining anonymous.
However these measures cannot be considered a proper substitute for the possibility of the defence to question the witnesses in their presence and make their own judgment as to their demeanour and reliability. It thus cannot be said that the handicaps under which the defence laboured were counterbalanced by the above procedures.

63. Moreover, the only evidence relied on by the Court of Appeal which provided positive identification of the applicants as the perpetrators of the crimes were the statements of the anonymous police officers. That being so the conviction of the applicants was based "to a decisive extent" on these anonymous statements.

64. In the Court's view, the present case falls to be distinguished from that of Doorson: in the latter case it was decided on the basis of information contained in the case file itself that the witnesses Y.15 and Y.16 — who were both civilians, and who knew the accused personally — had sufficient reason to believe that he might resort to violence, and they were heard in the presence of counsel (see the above-mentioned Doorson judgment, p. 454-55, § 25, pp. 455-56, § 28, and pp. 470-71, §§ 71 and 73).
In addition, in the latter case other evidence providing positive identification of the accused as the perpetrator of the crimes charged was available from sources unrelated to the anonymous witnesses (ibid., pp. 458-59, § 34, and p. 472, § 76).

65. Against this background the Court cannot find that the proceedings taken as a whole were fair.

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