Nicholas Otto VIDGEN
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 8 January 2019 as a Chamber composed of:
Vincent A. De Gaetano, President,
Pere Pastor Vilanova,
Georgios A. Serghides,
Jolien Schukking, judges,
and Fatoş Aracı, DeputySection Registrar,
Having regard to the above application lodged on 11 September 2017,
Having deliberated, decides as follows:
1. The applicant, Mr Nicholas Otto Vidgen, is a British national, who was born in 1958 and lives in Sydney, New South Wales (Australia). He was represented before the Court by Mr G. Meijers, a lawyer practising in Amsterdam.
A. Application no. 29353/06
1. Particular circumstances
2. The applicant was charged with having been, in 2001, a co-perpetrator of the offence of transporting a shipment of tablets containing 3,4‑methylenedioxy-N-methylamphetamine (“MDMA” for short) from the Netherlands to Germany with the intention of ultimately shipping it to Australia. MDMA is a psychotropic substance the trade of which is illegal in all three countries: it is known in its street pill form as “ecstasy” or “XTC”. The prosecution case was that the tablets were to be hidden in the cylinders and crankcases of motor car engines that would then be shipped to a business by the name of H. Autosport, located in Sydney, New South Wales, which business had been set up by the applicant ostensibly with a view to importing engine parts from Europe.
3. The proceedings against the applicant were held separately from the proceedings against his co-accused, among them one M. The suspect M. was in fact put on trial in Germany. He made a full confession and gave detailed statements, a fact that the German courts took into account in sentencing.
4. M.’s confession to the German police included the following:
(a) A statement to the effect that the applicant and his father attended a dinner in a restaurant during which arrangements were discussed for shipping XTC tablets to Australia in motor car engines. In the course of this dinner M. was given a note, suspected by M. to have been written by either the applicant’s father or the applicant himself, bearing the name and address of H. Autosport.
(b) A statement to the effect that the applicant and his father were implicated in the crime together and that the applicant’s father wanted the applicant to be paid for the XTC tablets as well as himself.
5. At no point throughout the criminal proceedings against him did the applicant deny that he had been involved in shipping motor car engines to his business in Sydney. However, he denied all knowledge of the use of those engines to smuggle XTC and hence any criminal intent directed towards that end. His defence was focused on this point.
6. On 5 September 2003 the Utrecht Regional Court (rechtbank) found the applicant guilty and sentenced him to five years’ imprisonment.
7. The applicant appealed to the Amsterdam Court of Appeal (gerechtshof). In the course of the ensuing proceedings, M. was subjected to cross-examination by the defence.
8. M. admitted that he had been convicted of perjury some years earlier. He refused however to answer any substantive questions, invoking his right not to testify (verschoningsrecht) in connection with pending proceedings for his extradition to the Netherlands to stand trial on a charge of participation in a criminal organisation.
9. On 13 December 2004 the Court of Appeal dismissed the applicant’s appeal and again convicted him. The evidence relied on included M.’s statements to the German police (see paragraph 4 above). The Court of Appeal considered that the mere fact of M.’s refusal at the hearing to answer any substantive questions did not constitute a violation of the applicant’s right to have witnesses against him examined. Considering M.’s statement to be largely corroborated by other items of evidence relating to elements which were disputed by the applicant and in respect of which he had wanted to put questions to the witness M., the Court of Appeal admitted them as evidence. The applicant’s sentence was reduced by three months, to four years and nine months’ imprisonment.
10. The applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad).
11. On 6 June 2006 the Supreme Court dismissed the applicant’s appeal on points of law and confirmed the judgment of the Court of Appeal. Finding however that the length of the proceedings had been excessive, it reduced the applicant’s sentence by a further six months, to four years and three months’ imprisonment.
2. The Court’s judgment of 12 July 2012
12. On 17 July 2006 the applicant lodged an application (no. 29353/06) against the Kingdom of the Netherlands complaining that his criminal conviction was based solely or to a decisive extent on the statements of a witness whom he had not been able to examine.
13. On 12 July 2012 the Court gave judgment finding that there had been a violation of Article 6 §§ 1 and 3 (d) of the Convention. Its reasoning included the following:
“45. The items of evidence on which the Court of Appeal relied to ground the applicant’s conviction are set out in paragraph 20 above. Only four of these … mention the applicant. Of these, the first two – the statements made by M. to a German police officer – connect the applicant to the attempt to smuggle the XTC. The other two are a statement taken from a witness in Australia describing the applicant’s business activities there and the applicant’s own statement in open court, from which it appears only that the applicant has met A. The remaining seventeen items implicate a variety of individuals, including A., M. and the applicant’s father K. Vidgen, in the use of the motor car engines for the purpose of smuggling XTC to Australia but not the applicant.
46. The Court thus concludes that M.’s statements to the German police officer were the ‘sole’ evidence of the applicant’s criminal intent and thus ‘decisive’ for the applicant’s conviction. The present case is therefore to be likened to Lucà and to Tahery’s case in Al-Khawaja and Tahery. The earlier admissibility decision in the case of Peltonen, prayed in aid by the Government, does not alter this finding. It is important to note that in the latter case, the domestic court relied on corroborating evidence in the form of statements of other witnesses, telephone traffic records and the presence of a sum of money in cash that could only be accounted for as the proceeds of crime.
47. Although it must be accepted that, as the Government state, reasonable attempts were made to allow the applicant to obtain answers from M., his persistence to remain silent made such questioning futile. The handicaps under which the defence laboured were therefore not offset by effective counterbalancing procedural measures.”
3. Proceedings before the Committee of Ministers of the Council of Europe
14. In their Action Reports to the Committee of Ministers (nos. DH‑DD(2013)757, DH-DD(2016)1245 and DH-DD(2015)1217), submitted in pursuance of Article 46 § 2 of the Convention, the Government provided information on the revision proceedings brought under Article 457 § 1 (b) of the Code of Criminal Procedure (Wetboek van Strafvordering).
B. Particular circumstances of the present case
15. The facts of the present case, as submitted by the applicant and as apparent from public documents, may be summarised as follows.
1. The revision request
16. On 8 November 2012 the applicant lodged a request for revision of the Court of Appeal’s judgment of 13 December 2004 (see paragraph 9 above), which had become final after the dismissal of his appeal on points of law (see paragraph 11 above), with the Supreme Court. He cited the Court’s judgment of 12 July 2012 aforementioned (see paragraph 13 above). He requested the Supreme Court to acquit him of the original charges against him, or in the alternative, to remit the case to a court of appeal for rehearing.
17. In an advisory opinion (conclusie) of 19 March 2013 the Advocate General (advocaat-generaal) recommended that the request for revision be granted and the case be remitted to a court of appeal other than that of Amsterdam for re-hearing.
18. On 4 June 2013 the Supreme Court gave judgment granting the request for revision and remitting the case to the ‘s-Hertogenbosch Court of Appeal.
2. Proceedings in the Court of Appeal
19. The re-hearing in the ‘s-Hertogenbosch Court of Appeal opened on 17 September 2014. The applicant was absent, having by this time settled in Australia and being unable to travel to the Netherlands. The defence was conducted in his absence by counsel.
20. The Court of Appeal took the decision to re-hear two of the witnesses heard in the original criminal proceedings against the applicant, including the witness M., and to have the applicant re-heard by an investigating judge.
21. The witness M. was re-heard on 23 April 2015 by an investigating judge, in the presence of, and cross-examined by, the applicant’s counsel. It is stated in the official record of the interview that M.’s conviction of crimes related to the charges against the applicant has become final, from which it follows that M. can no longer incriminate himself by making a statement in the case against the applicant and accordingly can no longer refuse to give evidence. It is further stated in this record that M., in reply to questions of the investigating judge, stated that he was willing to testify, that he had not spoken to anyone about the case before this hearing and that he had not read any documents concerning the case, as he had never received documents. Questioned in detail by the applicant’s counsel and confronted with his earlier statements, M. replied to many questions that he could no longer remember, citing the lapse of time since the relevant events as the reason; he stated however that he had never been threatened in connection with the case. M. did not retract his statements made to the German police (see paragraph 4 above).
22. The applicant was re-heard by the investigating judge, who had travelled to Australia to do so. His counsel was present. Asked whether he wished to react to the evidence given by M., the applicant suggested that M. had incriminated him in the earlier proceedings in Germany with a view to receiving a reduction of his own sentence.
23. The hearing reopened on 16 September 2015. The applicant’s counsel submitted that the opportunity to cross-examine M. had not been effective, since M. had stated nothing of substance. He argued that M’s statements to the German police could for that reason not be used in evidence, which meant that the applicant should be acquitted; in the alternative, compensatory measures were in order, and in particular the hearing of the German police officer who had conducted M.’s interrogation in 2002 and the Netherlands police officers and the interpreter who had been in attendance. At all events, M.’s statement was, according to the applicant’s counsel, suspect: he could well have cast blame on the applicant in the hope of receiving a lighter sentence, which in the event, he had.
24. The Court of Appeal gave judgment on 28 October 2015. It convicted the applicant of having, with others, deliberately exported a quantity of XTC tablets and sentenced him to four years’ and three months’ imprisonment – corresponding to the sentence imposed by the Supreme Court at the end of the first round of proceedings (see paragraph 11 above).
25. The evidence relied on by the Court of Appeal included, among 19 other items, M.’s statements to the German police (see paragraph 4 above).
26. The Court of Appeal’s reasoning included the following:
“M. made a confession to the police in 2002, on which occasion he also made a statement about the involvement and the participation of his fellow suspects. Later, when interrogated within the framework of letters of rogatory and at the hearing of the Court of Appeal of Amsterdam, sitting in Arnhem, of 6 August 2004 M. relied on his right not to testify.
Following remittal of the case after revision by the Supreme Court the witness M. was heard by the investigating judge on 23 April 2015 in the presence of defence counsel. The witness could no longer invoke his right not to testify in this interview and the defence has had the opportunity at that time to question the witness and observe him under questioning. The circumstance that M. replied to many of the questions that he could no longer remember anything about the case does not, in itself, constitute a violation of the right of the defence to question him. Neither does the circumstance that this witness could only be questioned by the defence after fifteen years. It is inherent in witness evidence that memories fade as time passes, but the mere passage of time does not imply that no substantive answers to questions could have been given. It does not appear to the Court of Appeal that the witness has refused to answer any questions and the defence has had the opportunity to confront the witness with his own statements made previously within the framework of these criminal proceedings. The witness has not retracted those statements. Such being the situation, the Court of Appeal accordingly considers M.’s statement, as made to the police, usable as evidence and rejects the defence [sc. that the right to cross-examine M. was not effective]. In case the Court of Appeal should take the view that M.’s incriminating statement might be relied on, counsel requested, in the alternative, compensation in the form of the hearing of witnesses. Since the Court has taken the view that the defence has been in a position to make use of its right of cross-examination, within the meaning of Article 6 § 3 (d) of the Convention, the question of hearing witnesses such as the police officers who carried out the interrogation does not arise.”
“Counsel’s defence that M.’s incriminating statement is insufficiently corroborated is, in the Court of Appeal’s considered view, [discredited] by the items of evidence from which, if they are considered in their interrelation and their interconnection (in time), the conviction follows. The case has not been made out, in the considered view of the Court of Appeal, that M.’s statement is unreliable because he had a clear motive to incriminate the suspect in connection with a reduction of sentence which he enjoyed in Germany. Neither has the witness, heard on oath by the investigating judge, stated that on that previous occasion – with a view to receiving a lighter sentence in his own criminal case – he made incorrect statements to the police. Contrary to counsel’s position, M. has not retracted the substance of his earlier incriminating statement. Moreover, the circumstance that M. has a previous conviction of perjury does not by definition imply that the reliability of M.’s statement to the police is in doubt.
As regards his motives to make a statement about his own involvement and that of fellow suspects, M. has stated the following when questioned on 20 February 2002 (…):
‘Question: Why are you telling us all this?
Answer: As I indicated earlier, I told A. some eight or nine months ago that I wanted out. However, it is not so simple to give it up, because of course one knows too much. So in one way I am glad that things went as they did and I can draw a line under this thing that in fact destroyed my life (…). The important thing, to clear up the misunderstanding that I am here (…) to wriggle out of it, is that I want to take responsibility for what I have done (…). On the other hand, it is also very clear to me that it is very dangerous for me to tell all these things here (…). Of course I do not want to endanger the lives of my family and my girlfriend. I know for a fact that that can happen, even though others may not take that so seriously. I have been together with A. for long enough to know how explosive he can be.’
This statement by M., which to the Court of Appeal gives the impression of authenticity, does not indicate that M. made false statements about fellow suspects to make things better for himself.
The Court of Appeal further considers that M.’s (confessing) statements are strongly corroborated by other items of evidence, such as the recorded confidential communication, telephone interceptions and direct observations, the note found in M.’s home bearing the address in Australia to which the XTC tablets were to be sent and the statement of the witness S. who, differing on this point from the statement made by [the applicant] himself, confirms that a shipment of engine parts was to be transported to the warehouse in Australia rented by [the applicant] from S., initially in November 2001, but after deferral, later, in December 2001.
The Court of Appeal therefore has no reason to find the statements made by M. unreliable”
3. Proceedings in the Supreme Court
27. The applicant lodged an appeal on points of law with the Supreme Court. As relevant to the case before the Court, he complained that the defence had not had the opportunity to cross-examine M. in a way that could be described as adequate and effective; that his conviction was based to a decisive extent on M.’s incriminating statements; and that adequate compensation for the handicaps suffered by the defence had not been offered. He also complained of the overall length of the proceedings.
28. The Advocate General, in her advisory opinion, expressed the view that the applicant’s appeal should be accepted on the ground that the cross-examination of M. had not been effective, that M.’s statements constituted “sole evidence” of the applicant’s criminal knowledge and intent, and that compensatory measures had been absent.
29. The Supreme Court gave judgment on 6 June 2017. It dismissed the applicant’s complaint that he had not had the opportunity to cross-examine M. in a way that could be described as adequate and effective. Its reasoning included the following (references to domestic case-law omitted):
“3.4.2. It does not follow from the mere circumstance that a witness does not give (complete) answers to questions put to him because – whether or not as a result of the lapse of time – he has insufficient specific recollection of what he has observed or experienced concerning the facts with which the suspect is charged that there has been no effective and proper opportunity for cross-examination (…). That circumstance can however be relevant in the selection and weighing of the evidence and the defences directed against these, in particular as regards statements made earlier during the pre-trial investigation.
3.4.3. In the situation where the witness makes use of his right not to testify or not to answer particular questions, as the case may be, and the witness consequently refuses to answer questions put to him by or at the request of the defence – which should be distinguished from the case referred to in paragraph 3.4.2 – a proper and effective opportunity for cross-examination is lacking.
3.5. The Court of Appeal has held that the circumstance that M. ‘replied to many of the questions that he could no longer remember anything about the case’ does not alter the fact that M. was heard as a witness on oath in the presence of the defence and that the defence was given a proper and effective opportunity to put questions, and that ‘the circumstance that this witness could only be questioned by the defence after fifteen years’ does not constitute a violation of the defence’s right of cross-examination either. That finding does not reflect an incorrect understanding of the law and is not incomprehensible, not even in the light of the circumstance, relied on in the ground of appeal (middel), that the course of the proceedings [beginning with the judgment of the Amsterdam Court of Appeal of 13 December 2004, including an appeal on points of law to the Supreme Court and an application to this Court and followed by a revision request and remittal to the ‘s-Hertogenbosch Court of Appeal on 4 June 2013] influenced the moment on which the witness M. could be questioned by the defence.
3.6. In the argument (toelichting) attached to the ground of appeal complaints are proffered about, in brief, the Court of Appeal’s sole or decisive reliance on M.’s statement to ground the conviction as well as on the lack of compensating factors for the handicaps experienced by the defence in questioning this witness. These complaints do not need to be discussed, since they are based on the premise that – contrary to the finding reached in paragraph 3.5 above – the suspect in the present case had no proper and effective opportunity to put questions.”
However, the Supreme Court accepted the complaint about the excessive length of the proceedings and reduced the applicant’s sentence by a further six months to three years and nine months on that ground.
C. Relevant domestic law
1. The Code of Criminal Procedure
30. Article 457 § 1 (b) of the Code of Criminal Procedure provides for the possibility of revision by the Supreme Court of a conviction where it has been determined in a ruling of the Court that there has been a violation of the Convention or one of its Protocols, as the case may be, in proceedings that have led to the conviction, or a conviction of the same crime, if revision is necessary with a view to reparation within the meaning of Article 41 of the Convention.
2. Domestic case-law development
31. In its judgment of 29 January 2013, ECLI:NL:HR:2013:BX5539, the Supreme Court reversed its earlier case-law as reflected in its judgment of 6 June 2006 (see paragraph 11 above), holding that in view of the Court’s judgment of 12 July 2012 (see paragraph 13 above) it could no longer be accepted that a defendant had had sufficient opportunity to cross-examine or have cross-examined a witness summoned at the request of the defence if that witness refused to give evidence under cross-examination.
32. The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention that his conviction after retrial had been based to a decisive extent on the statements made by M. to the German police in 2002, even though M.’s insistence that he no longer remembered any relevant events meant that the applicant still had had no adequate and effective opportunity to cross-examine him.
33. The applicant also complained, under the same provisions, of the absence of any compensatory measures, and in particular of the refusal to hear the police officers who had undertaken or attended M.’s questioning.
Complaint under Article 6 §§ 1 and 3 (d) of the Convention
34. The applicant complained that the criminal proceedings against him had been unfair in that he had been convicted on the basis of statements made by M. without having had an adequate and effective opportunity to examine him, and without compensatory measures having been put in place. The applicant relied on Article 6 §§ 1 and 3 (d) of the Convention, the relevant parts of which read as follows:
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing …
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; …”
35. The applicant pointed to the fact that although no longer in a position to refuse to testify, M. had stated, under cross-examination, that he no longer remembered anything of relevance to the applicant’s case. This, in his submission, meant that cross-examination could be neither adequate nor effective. M.’s statements made to the German police in the original criminal investigation (see paragraph 4 above) nonetheless remained the decisive evidence on which his renewed conviction was grounded, or at least had carried significant weight.
36. Given the importance of the evidence in issue, which thus remained untested, compensatory measures ought, in the applicant’s submission, to have been offered. In particular, the request made by the defence to hear the police officers and the interpreter who had attended the questioning of M. (see paragraph 23 above) ought not to have been refused.
37. The Court has on various occasions set out the principles applicable to reliance on the evidence or statements of witnesses who cannot be cross-examined by reason of their absence or death or because they have reason to fear reprisals (see, inter alia, Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011; Schatschaschwili v. Germany [GC], no. 9154/10, ECHR 2015; and, as a recent authoritative statement, Seton v. the United Kingdom, no. 55287/10, § 57-59, 31 March 2016, with further references). In its judgment of 12 July 2012 in the applicant’s case, the Court held these principles also to apply when a witness refuses to testify based on his or her right to silence as a criminal defendant in his or her own right (loc. cit., § 42).
38. The present case differs from the above mentioned cases in that the defence has had an opportunity to put questions to the witness concerned. Further, the witness had not refused to testify, but had claimed to have no longer any recollection of facts on which he was cross-examined. The question before the Court is whether in this situation the same principles apply.
39. The Court considers that they do not. In its view the present case is of a different nature. Its nature is similar to that of a case in which a witness has made a statement incriminating the suspect in the course of the pre-trial investigation but retracts it when heard in open court. The Court has on a previous occasion refused to hold in the abstract that evidence given by a witness in open court and on oath should always be relied on in preference to other statements made by the same witness in the course of criminal proceedings, not even when the two are in conflict (see Doorson v. the Netherlands, 26 March 1996, § 78, Reports of Judgments and Decisions 1996‑II).
40. It remains for the Court to reiterate that both the admissibility of evidence and its assessment are primarily a matter for regulation by national law and that as a general rule it is for the national courts to assess the evidence before them. The Court’s duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, its function is not to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among many other authorities, Lhermitte v. Belgium [GC], no. 34238/09, § 83, ECHR 2016, and Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 83, ECHR 2017 (extracts)).
41. It does not follow from the sole fact that a witness replies to questions that he cannot remember or alters or retracts his or her statement, when cross-examined, that the opportunity for cross-examination is inadequate or ineffective. Consequently a change of attitude on the part of a witness does not of itself give rise to a need for compensatory measures.
42. In the circumstances of the present case, which are further characterised by the fact that M. in his original statement incriminated himself and by the availability of other, corroborating, evidence in the form of intercepted private communication and telephone conversations, records of direct observation, an incriminating document found in M.’s home and a witness statement (see paragraph 26 above), the decision of the Court of Appeal to rely on the statements made by M. to the German police to ground the applicant’s renewed conviction – which statements were neither confirmed nor retracted by M. when cross-examined – did not affect the fairness of the proceedings.
43. Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Done in English and notified in writing on 31 January 2019.
Fatoş Aracı Vincent A. De Gaetano
Deputy Registrar President