EBBINGE v. THE NETHERLANDS
Inadmissible
Elisabeth Palm;Gaukur Jörundsson
The applicants are Dutch national, born in 1951 and at the time of the introduction of the application detained in Leeuwarden. He is represented before the Court by Mr L. de Leon, a lawyer practising in Utrecht. A. On 3 and 4 August 1995, two bags containing parts of a human body were found in a river near Bremen (Germany). Around 22 August 1995, it was found very likely that these remains, in any events the hands found, were those of Mr Harrie Roo. According to the findings of an examination of the remains, the victim had died one to two weeks prior to the finding of the remains. On 23 August 1995, Ms P. filed a criminal complaint with the police against the applicant for extortion and unlawful deprivation of liberty of her friend Mr Harrie Roo. She claimed that she had given a considerable amount of money to the applicant in exchange for the release of Mr Roo. On 24 August 1995, a preliminary judicial investigation (gerechtelijk vooronderzoek) against the applicant was opened. On 2 September 1995, the applicant was arrested in his father’s home in Amsterdam, where further a suitcase containing an amount of NLG. 71,500 were found. The applicant was taken into custody and interrogated a number of times, during which he remained silent. Following consultations between the police, the public prosecutor and the investigating judge (rechter-commissaris), it was decided to transfer the applicant to detention facilities in Zaandijk in order to interrogate him there with use of the so-called “Zaanse verhoormethode”; a specific interrogation technique. During the applicant’s interrogations in Zaandijk on 1, 2 and 3 November 1995, the “Zaanse verhoormethode” was used. On 2 November 1995, at around 16.45 hours, the applicant communicated with his lawyer. On the same day, at around 22.45 hours, the applicant gave a confessing statement. He was subsequently charged and summoned to appear before the Regional Court (Arrondissementsrechtbank) of Groningen. By judgment of 2 September 1996, following adversarial proceedings, the Regional Court acquitted the applicant of the charges relating to the killing of Mr Roo, convicted him of extortion and sentenced him to five years’ imprisonment. Both the prosecution and the applicant filed an appeal with the Court of Appeal (Gerechtshof) of Leeuwarden. Hearings before the Court of Appeal were held on 18 and 19 March, 16 April and 12 June 1997. During its hearing held on 18 March 1997, the Court of Appeal watched videotapes containing a summary of the applicant’s interrogations by the police. This summary, or a total duration of about six hours, concerned nearly exclusively parts of the applicant’s interrogations of 1 and 2 November 1995. The summary had been made in consultation with the parties.  In the course of the hearing held on 19 March 1997, the Court of Appeal took evidence from the witness Mr B., a warder in the detention centre where the applicant had been held and to whom - prior to the applicant’s interrogation in Zaandijk - the applicant had told that he had had a conflict with a man who had owed him money for drug transports, that he had unintentionally shot this man dead and that he had had problems in disposing of the body. Mr B. had not asked the applicant for the name of the victim. Mr B. stated that the applicant had been in Zaandijk for three days and that, after his return from Zaandijk, the applicant had appeared to be different in that he had become more relaxed. On the same day, the Court of Appeal took evidence from Mr K., also a warder in the detention centre where the applicant had been held and to whom the applicant had said that he was detained for a big case and that he risked a considerable sentence. The applicant had further told him that it had been “him or me”, “it was a stout man, 100 kilograms, 2 metres tall” and “I was covered with blood”. Mr K. did not recall whether the applicant had told him this before or after his stay in Zaandijk. Further hearings before the Court of Appeal were held on 16 April and 12 June 1997. By judgment of 26 June 1997, following adversarial proceedings, the Court of Appeal quashed the judgment of 2 September 1996, convicted the applicant of homicide and extortion and sentenced him to ten years’ imprisonment. As to the applicant’s argument that the prosecution should be declared inadmissible in that he had been subjected to the “Zaanse verhoormethode”, which - in his opinion - was in violation of Article 3 of the Convention, the principle of nemo tenetur (right of an accused not to be compelled to provide incriminating evidence and thus to contribute to his own conviction) and the prohibition of exerting pressure on suspects as referred to in Article 29 of the Code of Criminal Procedure (Wetboek van Strafvordering), the Court of Appeal considered, with reference to a finding to this effect in the advice of the Criminal Investigation Advice Commission (Recherche Adviescommissie), that the use of the “Zaanse verhoormethode” was not per definition contrary to Article 3 of the Convention or Article 29 of the Code of Criminal Procedure. The Court of Appeal examined the facts found established as to the manner in which the applicant had been interrogated. It noted, inter alia, that he had been interrogated for lengthy periods by sometimes more than two persons, that nobody had shouted at the applicant, that he had been addressed in a soft voice and that only at some moments voices had been raised. It further found that photographs had been placed in the applicant’s field of vision, showing places, persons and objects linked in some way to the facts of which the applicant was suspected (a farmhouse, the victim, Ms P., their daughters, parts (legs) of the victim’s remains, a wrapped trunk (of what later appeared to be a previously killed prostitute), the applicant’s spouse and his daughter, inside and outside views of the applicant’s home (including bedrooms) and that telephone threats received by the applicant’s wife had been discussed whereas he was repeatedly told that the police would only be able to protect his family if he would give a statement so that the police would know against whom they needed to be protected. As to the applicant’s physical condition during the interrogations of 1 and 2 November 1995, the Court of Appeal noted that the applicant had apparently eaten nothing or little before and during his stay in Zaandijk, but that he had regularly been offered a meal and has been allowed to drink coffee and smoke cigarettes. He had further requested and obtained aspirins. At no point in time had the applicant indicated to be physically incapable to proceed with the interrogations. It therefore concluded that it was not established that the applicant was physically incapable to be subjected to interrogation.  As to the admissibility of the prosecution, the Court of Appeal considered that it did concern a both physically and mentally very burdensome and intrusive interrogation, but that it could not be regarded as treatment contrary to Article 3 of the Convention in consequently rejected the argument that, on this basis, the prosecution should be declared inadmissible. The Court of Appeal further found no violation of the principle of nemo tenetur, as it had not been established that, as a result of the police actions during the interrogations in Zaandijk, such a serious violation of the principles of a fair trial had occurred that the prosecution should be declared inadmissible. The defence had also argued that, at least on one occasion, the applicant’s interrogators in Zaandijk had not allowed him to speak to his lawyer as they wished to finish the interrogation. The observation made on this point by the public prosecutor that the applicant had agreed with this course of action, was refuted by the defence stating that, on that moment, the interrogators were in the process of easing him away from his lawyer by stating that the applicant should not care so much about what others were saying. The Court of Appeal rejected the complaint of the alleged refusal to grant the applicant access to his lawyer as not having been established. It also found that it had not been established that the investigating authorities, by deciding to use the “Zaanse verhoormethode” and the manner in which it had been conducted, had acted intentionally or with gross negligence contrary to the applicant’s interests in his right to a fair hearing. As to the argument under Article 29 of the Code of Criminal Procedure, the Court of Appeal considered that, as a result of the at least particularly strong and misleading suggestion that the applicant’s spouse had received threats by telephone in combination with the interrogators’ intrusive and lengthy harping - using photographs - on the situation in which the applicant’ spouse and in particular his daughter could end up, the acceptable border of the, in itself not unacceptable presentation to an accused of possible consequence of his silence, had been surpassed. It was of the opinion that, therefore and in conjunction with the character and duration of the interrogations of 1 and 2 November 1995, the pressure exerted on the applicant had been increased to such a level that “pressure prohibition” had been violated. The Court of Appeal did not use the results of the applicant’s interrogations of 1 and 2 November 1995 in evidence. It based the applicant’s conviction on other evidence, i.e. inter alia police reports on the finding and examination of the victim’s remains and the subsequent criminal investigation, statements made by the witnesses B. and K. to the police and the Court of Appeal, statements taken by the police from other witnesses who had had contacts with the applicant either during the period in the course of which the victim was likely to have been killed or at a later point in time, a statement taken by the police from the applicant on 14 September 1995, and statements taken by the police from Ms P., and statements of three other persons to the police in relation to the concealment of amounts of NLG. 125,000 and DEM. 7,430 respectively. The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad). In its judgment of 20 October 1998 the Supreme Court, after having corrected an apparent textual error in the judgment of the Court of Appeal pointed out by the applicant, rejected the applicant’s complaints in cassation. This judgment, insofar as relevant, reads: <Translation> “4.1. The first ground of cassation contains the complaint is that the Court of Appeal has unjustly or on insufficient grounds rejected the argument <of the defence> to the effect that the prosecution should be declared inadmissible. .... 4.2.1. According to the minutes of the hearing on appeal of 12 June 1997, counsel has submitted different grounds which should lead to the inadmissibility of the prosecution, which grounds concern the manner in which the suspect has been interrogated in Zaandijk by the police ... 4.2.2. According to the minutes of the hearing on appeal of 18 March 1997, videotapes made of the police interrogations have for a part been shown and watched there and then. The Court <of Appeal> has selected those parts upon proposal of the Procurator-General and with the consent of the defence. That summary of about six hours, as found by the Court, (almost) exclusively concerns (parts) of the suspect’s interrogations on 1 and 2 November 1995. ... 4.3. According to the minutes of the trial on appeal, the Court <of Appeal> has summarised and rejected the argument <of the defence> as set out on pages 2-15, para. 1, of its judgment. ... 4.5. The considerations of the Court <of Appeal> referred to in 4.3 have to be understood as follows. On grounds of its findings as to the course of the interrogations, the Court <of Appeal> has held that on a number of points, set out on page 14 of the judgment under the heading “Violation of Article 29 of the Code of Criminal Procedure”, unacceptable pressure has been exerted on the suspect as a consequence of which Article 29 para. 1 of the Code of Criminal Procedure has been violated. This finding does not disclose an incorrect conception of the law and is not incomprehensible. On that ground the Court <of Appeal> apparently has held that the statements obtained as a result of the interrogations conducted on 1 and 2 November 1995 cannot be used in evidence as these have been unlawfully obtained; consequently, the Court <of Appeal> have not used these confessions in evidence. ... 4.6. The Court <of Appeal> has further considered that and why the use of the contested interrogation technique and irregularities referred to above found by the Court <of Appeal> should not lead to the inadmissibility of the prosecution. To this it has held in the first place ... that although, noting the circumstances in which the interrogations of 1 and 2 November 1995 have taken place, it did concern a physically and also mentally very burdensome and intrusive interrogation, it has not by this violated Article 3 of the Convention. In difference to the first cassation ground’s aim, this finding does not disclose an incorrect conception of the law and is not incomprehensible. The findings of the Court <of Appeal> further mean that - noting that what the Court <of Appeal> has found established as to the basis of the defence plea - there has been no violation of the principles of a fair trial of such serious nature that this should lead to the inadmissibility of the prosecution as it has not been established that there have been infringements of those principles as a result of which intentionally or with gross negligence the suspect’s interests in a fair hearing of his case have been disrespected. 4.7. Understood as such, the findings of the Court <of Appeal> do not disclose an incorrect conception of the law and, in the light of the trial proceedings, not incomprehensible. Insofar as the first ground in cassation objects to factual and not incomprehensible findings and to this relies on facts and circumstances not found established by the Court <of Appeal>, <the Supreme Court considers> that this cannot lead to cassation.” B. Relevant background and domestic law Article 29 of the Code of Criminal Procedure, insofar as relevant, reads: <Translation> "1. In all cases where a person is heard as a suspect, the questioning judge or civil servant shall refrain from everything which could have the effect of obtaining a statement of which it could be said it was not freely made. The suspect is not obliged to answer. 2. Before the hearing the suspect is informed that he is not obliged to answer. ...” On 15 May 1996, following the national broadcast of a television programme in which the “Zaanse verhoormethode” was discussed, a Member of Parliament put questions about this interrogation technique to the Minister of Justice, who decided to seek the views of the Criminal Investigation Advice Commission (Recherche Adviescommissie; hereinafter “RAC”) as to the lawfulness and functionality of this method. On 21 August 1996, the Minister of Justice informed Parliament that, once she would have taken notice of the final outcome of two trials in which the lawfulness of this method had been raised as well as the RAC advice, she would take a final decision as to the acceptability of this interrogation technique. In the meantime, she had instructed the public prosecution department to suspend the use of this technique. In November 1996, in conformity with the advice contained in the RAC report of 1 November 1996, the Minister of Justice decided to prohibit the use of the “Zaanse verhoormethode”. The RAC report describes the “Zaanse verhoormethode” as an interrogation technique based on the so-called CASE 36 (Communication Analysing System Europe 36) communication method. The method was developed by a communication expert and was further elaborated for police practices. CASE 36 is described in the report as a communication method focussing in particular on the way in which a person internally perceives the outside world. The application of the CASE 36 technique allows to obtain a very accurate picture of the behaviour of a person and the internal processes on which this behaviour is based, thus enabling to communicate effectively (a correct statement by the suspect) and efficiently (within a short time). The CASE 36 technique is based on Neuro Linguistic Programming (NLP); originally a form of psychotherapy. NLP has been defined as “the study of the structure of subjective experience”. NLP provides a model of human behaviour and communication which answers questions like “How does a person behave in relation to his environment, how does he take in information and how does he process this information?” An interrogation according to the CASE 36 communication method is aimed at the creation of a tie between the suspect and interrogators through which an optimal communication must become possible and thus to attain the truth via communication. The actual interrogation is prepared by planning certain steps to be taken during the interrogation. This planning includes, amongst other things, the allocation of individual roles (father figure, specialist, analyst, person of confidence) to each member of the interrogation team. Furthermore, a preliminary meeting with the suspect takes place in order to find out which pattern of thought (in detail or global) he uses and what his “focal points” are, i.e. to what points he looks when he is not specifically asked to look at something. A determination of “focal points” is relevant for the making of “visual chronological lines”. In having the suspect draw (visual) chronological lines during the interrogation, it is attempted to verify when what has taken place. This takes place, inter alia, by making a suspect relive an experience in his mind. If a suspect has an auditive preference, there is a bigger chance of communication and a reliving when he is made to listen to recordings, like telephone conversations. Has the suspect a sensory preference, the chance of communication is bigger when having him touch an object found at the crime scene, whereas in case of a visual preference, he can be shown photographs of the crime scene. In case a suspect has a “focal point” on a particular spot on a wall, it is possible to place photographs there. He will unconsciously look at them after which, as the intention is, he will remember facts insofar as he has been responsible for them. The showing of photographs includes both photographs connected to the offence and photographs linked to the suspect’s person, like photographs of his spouse or children. These two kinds of photographs are either shown separately or combined with each other. The interrogation team leader and the external communication expert watch and listen to the interrogation in another room. There are four hidden cameras covering the entire interrogation room and one hidden camera aimed at the suspect’s face. The suspect is informed that the interrogations are recorded but does not know where the cameras are. The interrogators receive instructions via earphones from the team leader or the external communication expert during the interrogation. The interrogation is constantly adapted to the suspect’s behaviour. The suspect’s non-verbal communication is followed and whether his behaviour is congruent, i.e. whether his body language is in conformity with her verbal expressions. Other features of this interrogation technique are the copying of a suspect’s physical behaviour which is intended to reassure the suspect and the so-called “pushing in”, i.e. to push one by one and on deliberate moment the chairs of each interrogator close to the suspect until in the end all interrogator sit intimately around the suspect. The interrogations are conducted within a couple of days, lasting on average ten hours per day depending on how the interrogation proceeds.