VERDAM v. THE NETHERLANDS
Inadmissible
Elisabeth Palm;Gaukur Jörundsson
The applicant is a Dutch national, born in 1965 and currently serving a prison sentence in the Netherlands. He is represented before the Court by Ms E. Prakken, a lawyer practising in Amsterdam. On 24 December 1993 the applicant was arrested on suspicion of having raped three prostitutes (“Ms A”, “Ms B” and “Ms C”). In a statement made to police after this arrest, a fourth prostitute (“Ms D”) reported that she had also been raped. The applicant’s lawyer was notified by the police and, without having had the opportunity to discuss the matter with the applicant, attended Ms D’s making of this statement, at which occasion the lawyer was able to question Ms D. Ms B, Ms C and Ms D subsequently recognised the applicant as the man who had raped them from a series of photographs; in the case of Ms B and Ms D this identification took place in the presence of the applicant’s lawyer. A DNA-examination was carried out on sperm found in a swab taken from Ms B. According to the results of the examination it could not be excluded that the sperm was the applicant’s - the lowest possible degree of probability to be attached to such results. The applicant was convicted of attempted rape of Ms A and of rape of Ms B, Ms C and Ms D by the Regional Court (Arrondissementsrechtbank) of Amsterdam on 29 June 1994. He was sentenced to six years’ imprisonment. The applicant lodged an appeal with the Court of Appeal (Gerechtshof) of Amsterdam. He requested that Ms B, Ms C and Ms D be heard as witnesses by the Court of Appeal and the court granted this request. However, at the hearing on 21 December 1994 none of these witnesses appeared. It transpired that, although properly summoned, Ms B and Ms D did not have a known place of residence or abode (zonder bekende woon- of verblijfplaats). An address was known for Ms C but the summons had not been sent there. The Court of Appeal adjourned the proceedings in order for Ms B, Ms C and Ms D to be summoned again. At the hearing on 1 March 1995 the witnesses again failed to appear, although all three had been properly summoned. The proceedings were once more adjourned and the witnesses summoned again. This time, the Court of Appeal also issued an order to have Ms C brought before it. At the hearing on 28 April 1995 none of the witnesses appeared. A police officer told the Court of Appeal that none of the three witnesses had been seen at the local community centre for prostitutes (“huiskamerproject”) since 1 March 1995. Ms C had not been seen near the Central Station since December 1994. The police had let other prostitutes in that area know that they were looking for Ms C. An address was known for her but when police went there on the morning of the hearing she was not there. The officer had furthermore been told that Ms B had gone to Germany where she was said to be staying at a drug rehabilitation centre but her address in Germany was not known. Ms B was said not to want to have anything to do with the case anymore. Ms D, finally, could not be found and her address was not known. Hereupon the Court of Appeal decided to dispense with a further summoning of Ms B, Ms C and Ms D as in the circumstances it considered it unlikely that they would appear before it within an acceptable time. Before the Court of Appeal the applicant acknowledged that he had had intercourse with Ms A, saying that she had screamed and that he had not paid her, but he denied having raped her. He further denied the charges against him in relation to Ms B, Ms C and Ms D, submitting that he had been elsewhere when the alleged offences had supposedly been committed. Counsel for the applicant argued that in violation of Article 6 §§ 1 and 3 (d) of the Convention the defence had not had sufficient opportunity to test the statements of Ms B, Ms C and Ms D. Counsel further complained of the manner in which the collection of photographs from which Ms B, Ms C and Ms D had recognised the applicant had been compiled. Regardless of the fact that the witnesses had described the perpetrator as having long or shoulder-length hair, only two photographs in the collection shown to them had featured a person with such a hair style. Finally, counsel requested that the proceedings be adjourned so that a second DNA-examination could be carried out. By judgment of 12 May 1995 the Court of Appeal convicted the applicant of attempted rape of Ms A and of rape of Ms B, Ms C and Ms D, and sentenced him to six years’ imprisonment. The Court of Appeal found that the use in evidence of the statements made to the police by Ms B, Ms C and Ms D without the defence having been able to examine these witnesses was not contrary to Article 6 of the Convention. In this respect it took into account that considerable effort had been made to procure the appearance of the witnesses before the Court of Appeal, that a further summoning of those witnesses appeared to serve no useful purpose, that the statements made by the witnesses were supported by other evidence, and that, as regards Ms D, the applicant’s lawyer had been present both when she had been questioned and when she had identified the applicant from a photograph. In respect of the series of photographs shown to Ms B, Ms C and Ms D, the Court of Appeal referred to the testimony given by an expert witness according to whom a computerised system had been used to select photographs of persons of a similar appearance. The Court of Appeal also examined the photographs itself. It found that the fact that only two of the nine photographs featured men with long hair could not detract from its opinion that the collection had been compiled with the requisite care, since a hair style was only of relative importance in this respect. The Court of Appeal further noted that each witness had, separately and with certainty, recognised the applicant. The Court of Appeal further noted that the applicant had not disputed the findings of the DNA-examination, but that he had rather expressed the hope that a second such examination might exonerate him completely. However, as the Court of Appeal did not use the findings of this examination in evidence against him, it considered that to refuse a second examination would not be prejudicial to the applicant’s interests. The Court of Appeal based its conviction of the applicant of the rape of Ms B, Ms C and Ms D on the following means of evidence, in respect of the particular charge to which each of them related only: - the applicant’s statement before the Court of Appeal that he wore tattoos, that he used to drive a blue-grey Buick which was registered in the name of a Mr H, and that he had subsequently obtained a Chevrolet van; - Ms B’s statement to the police in which she related, inter alia, that the perpetrator had been driving a big, metallic-blue coloured American car, and in which she described him as having long blond hair, tattoos on both arms and wearing a number of chains; - Ms B’s recognition of the applicant as her assailant from nine photographs shown to her, at which occasion she stated, “That is Peter the rapist. He told me himself that he was called Peter”; - a procès verbal drawn up by a police officer to the effect that the applicant’s girlfriend had told this police officer that the applicant was generally known as ‘Peter’; - Ms C’s statement to the police in which she related, inter alia, that the perpetrator had been driving a big, silver-blue coloured American-style car and that he had pulled a chain around her neck. She further stated that the man had long blond hair worn in a pony tail and a tattoo on his upper arm; - a procès verbal drawn up by a police officer to the effect that the registration number of the car indicated by Ms C as the car driven by her assailant had proved incorrect; - a procès verbal drawn up by a police officer to the effect that Mr H used to have a Buick registered in his name with a registration number that differed one digit from the number indicated by Ms C; - Ms C’s recognition of the applicant as her assailant from a number of photographs shown to her; - Ms C’s confirmation that the chain featured on a photograph shown to her was of the kind that she had mentioned in her statement; - a procès verbal drawn up by two police officers to the effect that a silver-coloured chain had been found in the Chevrolet van which they had investigated in relation to the suspicion that a number of rapes had taken place inside the vehicle; - Ms D’s statement to the police in which she related, inter alia, that the perpetrator had been driving a large silver-grey car and that he had long hair; - Ms D’s recognition of the applicant as her assailant from nine photographs shown to her; - a procès verbal drawn up by a police officer to the effect that the owner of a breaker’s yard had recognised the applicant from a photograph shown to him as the man whom he had given a purple-blue Chevrolet in exchange for a metallic-grey Buick. The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad), raising the same arguments as he had before the Court of Appeal. In a judgment of 7 May 1996, the Supreme Court found that Article 6 of the Convention did not prevent the use in evidence of Ms C’s statement to the police despite the fact that counsel had not been able to question her as a witness. In this respect the Supreme Court did not find unreasonable the conclusion that further attempts to make Ms C appear before the Court of Appeal would serve no useful purpose. The Supreme Court noted, moreover, that counsel had taken no initiative to examine the police officers who had taken Ms C’s statement. It also considered that Ms C’s statement was corroborated by other means of evidence used in respect of this charge, in particular concerning the physical appearance of the applicant and the car he used. As regards the use in evidence of Ms D’s statement, the Supreme Court observed that counsel had attended Ms D’s interview with the police and that the applicant had thus had the opportunity to have this witness questioned on his behalf. The Supreme Court found no issue with the manner in which the Court of Appeal had rejected the complaint concerning the compilation of the series of photographs from which the applicant had been recognised. The Supreme Court quashed the judgment of the Court of Appeal in so far as it concerned the charge of rape of Ms B and the determination of the sentence. The Supreme Court held that a second DNA-examination could not be refused for the sole reason that the examination already carried out had been complete and that the results were not used in evidence. The Supreme Court referred this part of the case to the Court of Appeal of The Hague, which court was also to impose a sentence relating to the other offences of which the applicant had been found guilty. On 24 December 1996 the Court of Appeal of The Hague convicted the applicant of the rape of Ms B. It sentenced the applicant to six years’ imprisonment with deduction of the time spent in pre-trial detention. In these proceedings the applicant again complained of his not having been able to question Ms B. The applicant filed an appeal in cassation against the judgment of the Court of Appeal, which proceedings are currently still pending before the Supreme Court. 