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You are here: BAILII >> Databases >> European Court of Human Rights >> BAEGEN v. THE NETHERLANDS - 16696/90 [1995] ECHR 44 (27 October 1995) URL: http://www.bailii.org/eu/cases/ECHR/1995/44.html Cite as: [1995] ECHR 44

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In the case of Baegen v. the Netherlands (1),

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of Rules of Court B (2), as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr B. Walsh,

Mr R. Macdonald,

Mr J. De Meyer,

Mr S.K. Martens,

Mrs E. Palm,

Mr R. Pekkanen,

Mr A.B. Baka,

Mr P. Kuris,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 28 September and

24 October 1995,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 51/1994/498/580. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2. Rules of Court B, which came into force on 2 October 1994, apply

to all cases concerning the States bound by Protocol No. 9 ((P9).

_______________

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

(art. 32-1, art. 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 (art. 25) by a Netherlands

national, Mr Wilhelmus Elisabert Baegen, on 6 April 1990.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby the Netherlands recognised the

compulsory jurisdiction of the Court (Article 46) (art. 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) (art. 6-1, art. 6-3-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) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On 27 January 1995, in

the 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)

(art. 43).

3. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, 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 the proceedings before it, as requested by

the Registrar on the 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 the 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

had 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

he denied the charge. At no point in the 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 a 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 X 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 practice

25. For a statement of the relevant domestic law and practice at the

time of the events complained of, reference is made to the Court's

above-mentioned Kostovski judgment.

PROCEEDINGS BEFORE THE COMMISSION

26. In his application (no. 16696/90) 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 paras. 1 and 3 (d) (art. 6-1, art. 6-3-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)

(art. 31), it expressed the opinion that there had been no violation

of Article 6 paras. 1 and 3 (d) (art. 6-1, art. 6-3-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 judgment (1).

_______________

1. Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (volume 327 B of

Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

28. The Government concluded their memorial by expressing the opinion

that there had been no violation of Article 6 paras. 1 and 3 (d)

(art. 6-1, art. 6-3-d).

AS TO THE LAW

29. On 8 December 1994 the Registrar advised the applicant in

writing, as required by Rule 35 para. 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 para. 2 of Rules 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 Delegates of 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 para. 1 (e) (art. 48-1-e) of the Convention does not

intend to pursue the application or if, for any other reason,

further examination of 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 para. 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

another 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 para. 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.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar