VAN THUIL v. THE NETHERLANDS
Inadmissible
David Thór Björgvinsson
The applicant, Gijsbert Bertus van Thuil, is a Netherlands national, who was born in 1952 and lives in Amsterdam. He is represented before the Court by Mr S.T. van Berge Henegouwen, a lawyer practising in Maastricht. In 1992, 1993 and 1994 the applicant's name appeared in various criminal investigations that were being conducted. On 19 January 1993 a preliminary judicial investigation (gerechtelijk vooronderzoek) was opened against the applicant on suspicion of narcotics and other drug related offences. A further preliminary judicial investigation was opened against him in February 1994. These investigations eventually resulted in a total of eleven charges being brought against the applicant. The first charge, insofar as relevant, read as follows: “1. that he, in or around the period from 1 September 1993 to 25 February 1995 in Amsterdam and/or elsewhere in the Netherlands and/or in Spain, has participated in an organisation having as its aim the commission of criminal offences and/or of which organisation he, [the] accused, was actually in charge (“aan welke organisatie, hij verdachte, feitelijke leiding heeft gegeven”); that organisation consisted of a group of persons, namely [the accused] and/or [five co-accused] and/or one or more others who were (each time) involved in [offences involving synthetic drugs and cocaine, an unlawful deprivation of liberty and/or threats to life]; those crimes concerned (each time) intentional acts in violation of [the provisions of the Opium Act (Opiumwet) and/or the provisions of the Criminal Code (Wetboek van Strafrecht)]; [constituting a punishable offence under] Article 140 § 1 of the Criminal Code” The remaining charges concerned: - the exportation of synthetic drugs, together with others or alone, from the Netherlands to Spain between 1 May 1994 and 30 June 1994 (charge no. 2); - the exportation of synthetic drugs, together with others or alone, from the Netherlands to the United Kingdom between 29 June 1994 and 7 July 1994 (charge no. 3); - the exportation of synthetic drugs, together with others or alone, from the Netherlands to the United Kingdom between 10 February 1994 and 21 July 1994 (charge no. 4); - the exportation of synthetic drugs, together with others or alone, from the Netherlands to Germany between 1 August 1994 and 31 August 1994 or, alternatively, the possession of, transporting of and/or trafficking in synthetic drugs in the Netherlands during that period (charge no. 5); - the production of, transporting of and/or trafficking in synthetic drugs in the Netherlands between January 1994 and 10 October 1994 (charge no. 6); - the production and/or possession of synthetic drugs, together with others or alone, in the Netherlands between 1 January 1994 and 27 February 1995 (charge no. 7) - the production, possession and/or transporting of synthetic drugs, together with others or alone, in the Netherlands between 1 November 1993 and 4 February 1994 or, alternatively, having provided others with the necessary means for committing these offences (charge no. 8); - the production, possession and/or transporting of synthetic drugs, together with others or alone, in the Netherlands between 1 September 1994 and 31 January 1995 (charge no. 9); - the exportation of cannabis and/or hashish, together with others or alone, from the Netherlands to the United Kingdom between 1 July 1992 and 31 August 1992 (charge no. 10); and - having unlawfully deprived, together with others or alone, a person of his liberty between 16 and 19 July 1994 (charge no. 11). On 23 February 1995, the applicant was taken into detention in Spain on the basis of a Netherlands request for his extradition. Following extradition proceedings in Spain, the applicant was extradited on 20 August 1996 to the Netherlands, where he was placed in pre-trial detention. He was summoned to appear on 29 November 1996 before the Regional Court (arrondissementsrechtbank) of The Hague in order to stand trial on the aforementioned charges. In the course of the hearing held on 18 April 1997 before the Regional Court, the public prosecutor amended, inter alia, the first charge by replacing the phrase “and/or of which organisation he, [the] accused, was actually in charge” with “whereas the accused, within that organisation, has fulfilled the role of director” (“terwijl hij, verdachte, binnen die organisatie een rol als bestuurder heeft vervuld”) and by replacing the reference to Article 140 § 1 of the Criminal Code with a reference to Article 140 §§ 1 and 3 of the Criminal Code. In its judgment of 17 July 1997, the Regional Court declared the prosecution inadmissible in respect of the sixth, seventh, eight and ninth charges, finding that, during the criminal investigations, the authorities had used an infiltrator whose deployment and activities had not been duly recorded, thus rendering any subsequent control impossible. Although it found that the public prosecutor who had issued the summons against the applicant had not been aware of the role of the infiltrator at the outset, it was established that the prosecution had become aware of the matter before the hearing of 18 April 1997, whereupon the prosecutor should have notified the Regional Court of this without delay. It held that, in these circumstances, there had been a serious breach of the principles of proper trial procedure (beginselen van een behoorlijke procesorde) for which only the most severe sanction was appropriate, namely to declare inadmissible the prosecution of these charges. It further declared the prosecution inadmissible in respect of that part of the first charge which had been amended by the prosecution on 18 April 1997, i.e. the factor that the applicant had acted as the director of the criminal organisation. It agreed with the defence that this point had not been examined in the Spanish extradition proceedings whereas, pursuant to Article 14 § 3 of the European Convention on Extradition, it should have been determined whether the charge as amended would have allowed extradition. The Regional Court convicted the applicant of participation in a criminal organisation. He was also convicted on the second, third, fourth, fifth, tenth and eleventh charges. It acquitted him of the remaining charges and sentenced him to ten years' imprisonment, less the time spent in detention in Spain pending his extradition and the time spent in pretrial detention in the Netherlands. The applicant filed an appeal with the Court of Appeal (gerechtshof) of The Hague and, in this connection, requested the public prosecutor, by letter of 13 January 1998, to summon numerous witnesses, including the police officers X and Y who had acted as “runners” for Mr Z, the civilian infiltrator who had been deployed in the different investigations which had led to the institution of criminal proceedings against the applicant. The Court of Appeal commenced its examination on 4 February 1998. In the course of eleven hearings held between 18 February 1998 and 8 September 1998, the Court of Appeal heard a total of twenty-eight witnesses, including ten police officers, three public prosecutors and an investigating judge (rechter-commissaris). Although the Court of Appeal had accepted the applicant's request to take oral evidence from the police officers X and Y, they failed to appear. In the course of the proceedings, the public prosecutor informed the Court of Appeal that, given their current mental health, the two police officers were unable to undergo questioning. This contention was supported by medical opinions drawn up by a police medical officer, a psychologist and a psychiatrist. Considering that it was pointless to summon these witnesses again, the Court of Appeal rejected the applicant's request to this effect. At the hearing held on 14 September 1998, the Court of Appeal heard the parties' final pleadings and set a date for judgment. In its judgment of 28 September 1998, the Court of Appeal quashed the Regional Court's judgment of 17 July 1997. As regards the request by the defence to reconsider its decision not to pursue efforts to hear the witnesses X and Y, the Court of Appeal held that the arguments put forward by the defence were insufficient for such reconsideration. In reaching this finding, the Court of Appeal took into account that it had obtained extensive information about the activities of Z as an infiltrator by other means, such as the statements given by X and Y to the State Criminal Investigation Department (Rijksrecherche), a nine page fax message sent by Z to the Kennemerland Regional Criminal Intelligence Service (Criminele Inlichtingendienst) containing a “report on activities concerning Amsterdam”, copies of internal notes containing information conveyed to the investigating authorities by Z and the statements given by X and Y to the Zutphen investigating judge. It also rejected the argument that the prosecution should be declared inadmissible on account of the State's failure to secure the appearance of these two police officers. Although it found the situation to be highly unsatisfactory, it had not been established that this was the result of an intentional obstruction of judicial proceedings by the police officers concerned or their superiors. It further considered that, in view of the results of the investigation at trial, the interest of the defence in hearing both “runners” had diminished during the course of the proceedings, although the investigation at trial had not been complete. It upheld the decision of the Regional Court to declare the prosecution inadmissible regarding the applicant's purported role as the director of a criminal organisation, given that this had not been raised in the Spanish extradition proceedings. It further declared the prosecution inadmissible in respect of the fourth, sixth, seventh, eighth and ninth charges. Insofar as relevant, the Court of Appeal held, as to the admissibility of the prosecution, as follows: “In view of the suspicion that existed in respect of some groups to which the [applicant] was suspected to belong, the deployment of Z as (a civilian) informer/infiltrator was justified. Pursuant to the directives [on] infiltration dated 20 February 1991 then in force, this deployment required the approval of the public prosecution department. Whether this approval has been given and, if so, in how far the responsible public prosecution department supervised the activities of Z, or how far Z acted upon the instructions of the runners or according to his own plans and insight, has – after the further investigation by the court – not been clarified. ... The court is of the opinion that it is plausible that, insofar as he has not respected instructions or has acted more extensively than allowed by the runners, with the supply of base materials and devices, or the production of hard drugs in the various laboratories, Z was given the opportunity, given the lack of supervision and control by the Regional Criminal Intelligence Service, to commit unpunished criminal offences and generate [income from crime]. In these circumstances, the public prosecution department must be held responsible for the activities not directed by the Regional Criminal Intelligence Service or the public prosecution department. ... This is different for the [charges set out under nos.] 2, 3, 5, 10 and 11. Insofar as these facts can be proven, it has not been established that Z had anything to do with [these facts]. The infiltration by Z also forms no obstacle to the admissibility of the prosecution as regards [the first charge]. The element that Z, as an infiltrator, has in fact participated in, and possibly in certain cases has taken the initiative in, the commission of some of the punishable facts charged – the preparation/production of amphetamines and/or XTC – and that, in view of the probable scope of Z's activities, the public prosecution must be declared inadmissible in respect of those facts in the case against [the applicant], does not mean that the public prosecution department must be denied its right to prosecute [the applicant] as regards his participation in an organisation whose aim is to commit these and other criminal offences. There is no indication whatsoever that the organisation would not have existed without the commitment of Z. Nor has it been established that the applicant would not have participated in the organisation if Z had not become involved in it.” The Court of Appeal acquitted the applicant, for lack of evidence, on the second, third, fifth and tenth charges, and convicted him of participation in a criminal organisation and of participation in the commission of an unlawful deprivation of liberty (first and eleventh charges). It sentenced him to five years' imprisonment, less the time spent in detention in Spain pending his extradition and the time spent in pretrial detention in the Netherlands. As to the determination of the applicant's sentence, the Court of Appeal held as follows: “The court has determined the sentence on the basis of the gravity of the offences and the circumstances under which they were committed, and on the basis of the person and the personal circumstances of the [applicant], as has emerged from the hearings before the court. The court has had particular regard to the following: The [applicant] has participated in a criminal organisation involved in the production and exportation of amphetamines and XTC on a large scale. He has played a managing role (“leidinggevende rol”) in that organisation. He was motivated by financial greed, regardless of the considerable dangers which drugs such as amphetamines and XTC, as commonly known, constitute to public health. In connection with these criminal activities, the accused has further, together with others, committed an unlawful deprivation of liberty in which one of the members of the organisation was [deprived of his liberty]. The court further takes into account that the accused, according to his own statement, was sentenced to a lengthy term of imprisonment in Spain in 1988 in respect of a [drug offence]. In view of the nature and seriousness of the facts found proven, the court is of the opinion that only an unconditional prison sentence [of five years] is a fitting sanction.” The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad) and raised seventeen complaints. He first complained that the Court of Appeal, in the reasons determining the sentence, had disregarded the law and/or the formalities entailing nullity because: “According to Article 140 of the Criminal Code, it is a (considerable) aggravating circumstance when a participant in a [criminal] organisation manifests himself as a founder or director thereof. This aggravating circumstance was initially not included in the charge and it was also not notified to the extraditing State. The Court of Appeal of The Hague has thus correctly found that the public prosecution department did not have a right of prosecution in respect of this aggravating circumstance. Incomprehensibly, however, the Court of Appeal subsequently attributes to this aggravating circumstance a prominent role in the prosecution via the back door in its determination of the sentence. Indeed, the Court of Appeal explicitly considers that having a managing role in the organisation is significant in the determination of the punishment. Thereby, despite the prohibition on prosecution correctly determined by the Court of Appeal, the [applicant] has been prosecuted and convicted for directing/managing the organisation [at issue]. The judgment has therefore not, or in any event not in a comprehensive manner, been reasoned as required by law.” In his advisory opinion, the Procurator General to the Supreme Court proposed to reject this complaint, considering that: “It must first be put that [a] “managing role” is not, by definition, equivalent to directing a criminal organisation or fulfilling the role of the director of that organisation, as meant by Article 140 § 3 of the Criminal Code. One can very well give guidance without being a director, as meant in the charge that was brought and in respect of which the prosecution was declared inadmissible. In its considerations, the Court of Appeal has only indicated that [the applicant] has contributed more to the operation of that organisation than other participants, without – in giving this indication – finding that he performed the role of director ... The complaint therefore rests on an incorrect understanding of the judgment and it lacks a factual basis.” In his response to the advisory opinion, the applicant submitted: “In his advisory opinion on the first complaint, the Procurator General indicates that the complaint rests on an incorrect understanding of the judgment, as directing is not, by definition, equivalent to managing. The [applicant] is convinced that your Court, in your case law of the last two decades, has in fact indicated that “directing”, within the meaning of Article 140 of the Criminal Code, is not to be interpreted restrictively in the sense that it would only concern the civil law direction of (for instance) a legal person. It is indeed the managing of an organisation which is regarded by your Court as (a form of) directing under Article 140 of the Criminal Code. Charges in which the element of “directing” is factually described as “managing” can stand the test of criticism like this. If your Court were to follow the advisory opinion, this would - in the [applicant's] humble opinion - mean a departure from the current line, with considerable consequences for the prosecution of directing criminal organisations.” In its judgment of 14 March 2000, the Supreme Court rejected the applicant's first complaint in cassation, holding: “The charge under 1 is geared to Article 140 of the Criminal Code. In the proceedings in first instance that charge has been amended, in the sense that, to this [charge] – undeniably as an aggravating circumstance as meant in the third paragraph of that Article – has been added “whereas the accused, within that organisation, has fulfilled the role of director”. In the impugned ruling, the Court of Appeal has declared the prosecution inadmissible regarding the charge under 1, insofar as it concerns that aggravating circumstance. In the reasons given ... for the determination of the sentence, the Court of Appeal has taken into account that the [applicant] has played “a managing role” in the organisation concerned. In so doing the Court of Appeal apparently was referring to the managerial activities of the [applicant] which are not of such a nature that they mean that the [applicant] must be regarded as the “director” under Article 140 § 3 of the Criminal Code. The complaint, which rests on another understanding of the impugned ruling, thus lacks a factual basis, so that it cannot lead to cassation.” The Supreme Court also rejected the applicant's complaint in cassation that his rights under, inter alia, Article 6 of the Convention had been breached by the refusal of the Court of Appeal to summon the witnesses X and Y again and/or to declare the prosecution inadmissible on account of the latters' failure to appear. As regards these complaints, the Supreme Court held: “The[se] complaints do not constitute grounds for overturning the impugned judgment (“kunnen niet tot cassatie leiden”). Having regard to Article 101a of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie), no further reasoning is called for, since these complaints do not give rise to the need for a determination of legal issues in the interests of legal unity and legal development.” It also rejected the other complaints in cassation raised by the applicant. Article 140 of the Criminal Code (Wetboek van Strafrecht), as in force at the material time and in its relevant part, read as follows: “1. Participation in an organisation whose aim is to commit offences shall be liable to a term of imprisonment not exceeding five years or a fourth category fine [i.e. 11,345 euros]. ... 3. For those responsible for setting up [the organisation] or its directors (bestuurders), the term of imprisonment may be increased by one third, and a fine in the next higher category may be imposed.” Article 359 of the Code of Criminal Procedure (Wetboek van Strafvordering), insofar as relevant, provides as follows: “1. The judgment shall contain the charges and the substance of the evidence insofar as it serves to prove the charges. ... 3. The decision that a defendant committed the offence in question must be supported by facts or circumstances that are referred to as such in the judgment. ... 5. The judgment shall specify the reasons that have determined the sentence or non-punitive order. 6. In imposing a sentence or non-punitive order involving a deprivation of liberty, the judgment shall specify the reasons that led to that choice of penalty or order. It shall also describe, as far as possible, the circumstances that were taken into account in determining the length of the sentence. ...” In determining the type and severity of the sentence to be imposed in cases where accused persons are found guilty, the courts have a considerable degree of latitude. The Criminal Code lays down a general minimum sentence (of one day as far as imprisonment is concerned - Article 10 § 2) and, depending on the offence in question, a maximum sentence. Within these limits, the court is free to determine the appropriate sentence in the light of the accused's According to Article 57 of the Criminal Code, where two or more separate, indictable offences are committed, the maximum penalty which may be imposed is the combined total of the maximum penalties for each offence. However, insofar as a term of imprisonment is concerned, the penalty may not exceed the most severe maximum penalty by more than one third. In the present case, the first offence of which the applicant was convicted carried a maximum prison sentence of five years and the second offence a maximum prison sentence of eight years. The maximum sentence that could have been imposed on the applicant was therefore ten years and eight months. Article 101a of the Judiciary (Organisation) Act, as in force at the material time, read as follows: “If the Supreme Court considers that a complaint does not provide grounds for overturning the judgment appealed against and does not require answers to questions of law in the interests of the unity or development of the law, it may, in giving reasons for its decision on the matter, limit itself to that finding.”