CASE OF DOORSON v. THE NETHERLANDS
Lack of jurisdiction (new complaint);No violation of Art. 6-1+6-3-d
N. Valticos
7. The applicant is a Netherlands citizen born in 1958 and resident in Amsterdam. 8. In August 1987 the prosecuting authorities decided to take action against the nuisance caused by drug trafficking in Amsterdam. The police had compiled sets of photographs of persons suspected of being drug dealers. These were shown to about 150 drug addicts in order to collect statements from them. However, following a similar action in 1986 when drug addicts who had made statements to the police had been threatened, it turned out that most of those to whom photographs were shown were only prepared to make statements on condition that their identity was not disclosed to the drug dealers whom they identified. In each set of photographs shown there was one of a person known to be innocent. Statements made by persons who identified this photograph as that of a drug dealer were regarded as unreliable and discounted. 9. In September 1987 the police received information from a person referred to by the police under the code number GH.021/87 that the applicant was engaged in drug trafficking. The applicant's identification photograph, which had been taken in 1985, was thereupon included by the police in the collection of photographs shown to drug addicts. 10. A number of drug addicts subsequently stated to the police that they recognised the applicant from his photograph and that he had sold drugs. Six of these drug addicts remained anonymous; they were referred to by the police under the code names Y.05, Y.06, Y.13, Y.14, Y.15 and Y.16. The identity of two others was disclosed, namely R. and N. 11. On 12 April 1988 the applicant was arrested on suspicion of having committed drug offences. It appears that he was subsequently taken into detention on remand. 12. On 13 April 1988 the applicant was shown the photograph made of him by the police and recognised it as a photograph of himself. 13. A preliminary judicial investigation (gerechtelijk vooronderzoek) was opened, during which the applicant's lawyer submitted a request for an examination of the witnesses referred to in the police report in the applicant's case. The investigating judge (rechter-commissaris) accordingly ordered the police to bring these witnesses before him on 30 May 1988 between 9.30 a.m. and 4 p.m. The applicant's lawyer was notified and invited to attend the questioning of these witnesses before the investigating judge. 14. On 30 May 1988 the applicant's lawyer arrived at the investigating judge's chambers at 9.30 a.m. However, after an hour and a half had elapsed and none of the witnesses had appeared, he concluded that no questioning would take place. He therefore left for another appointment. According to the lawyer he did so with the consent of the investigating judge, Judge M., who had promised him that if the witnesses should turn up later that day, they would not be heard but would be required to appear for questioning at a later date so that he would be able to attend. After the lawyer had left, two of the eight witnesses referred to in the police report turned up and were heard by the investigating judge in the absence of the lawyer, witness Y.15 at about 11.15 a.m. and witness Y.16 at about 3 p.m. From an official record of his findings (proces-verbaal van bevindingen) drawn up by Judge M. on 17 June 1988, it appears that Y.15 and Y.16 did not keep a promise to return for further questioning on 3 June. 15. On 19 July 1988 the applicant appeared before the Amsterdam Regional Court (arrondissementsrechtbank) on charges of drug trafficking. At the prosecutor's request, the court decided to adjourn its examination until 25 August 1988. 16. On 25 August 1988 the Regional Court resumed the hearing. As the Regional Court was differently composed, it recommenced its examination of the case. The applicant's lawyer requested the court to refer the case back to the investigating judge for an examination of the six anonymous witnesses and to hear the two named witnesses R. and N. itself. The court refused the first request but ordered the witnesses R. and N. to be brought before it and adjourned the hearing until 4 October 1988. The Regional Court also refused a request made by the defence for the applicant's detention on remand to be terminated or else suspended, being of the opinion that the applicant was still under suspicion and that the reasons for which the detention on remand had been ordered were still valid. One of the judges sitting on this occasion was a certain Judge Sm. 17. On 29 September 1988 the applicant's lawyer submitted to the Regional Court a number of documents including the judgment of the European Court of Human Rights in the case of Unterpertinger v. Austria (judgment of 24 November 1986, Series A no. 110) and the report of the European Commission of Human Rights in the case of Kostovski v. the Netherlands (report of 12 May 1988, application no. 11454/85). 18. On 4 October 1988 the Regional Court resumed the proceedings. In view of the fact that all three judges of the Regional Court had been replaced, the court again recommenced its examination. The defence again made a request to have the six anonymous witnesses examined, which was refused. The named witness N. appeared, R. did not. Both the prosecution and the defence were given the opportunity to put questions to N. Asked to identify the applicant, N. stated that he did not recognise him. On being shown the applicant's photograph, he said that he recognised it as that of a man who had given him heroin when he was ill. However, towards the end of his examination he stated that he was no longer quite sure of recognising the man on the photograph; it might be that the man who had given him the heroin only resembled that man. He further alleged that when shown the photographs by the police, he had only identified the applicant's photograph as that of a person from whom he had bought drugs because at the time he had felt very ill and had been afraid that the police might not give him back the drugs which they had found in his possession. The court adjourned its further examination until 29 November 1988, ordering the appearance of the witnesses R. and N., and - on a motion of the defence - of L., an expert in the field of problems related to drug trafficking and abuse. It ordered the witness R. to be brought before it by the police. 19. On 29 November 1988 the Regional Court resumed its hearing. The expert L. appeared and was questioned before the court. He doubted whether statements such as that made by the drug addicts in the present case could be qualified as voluntarily made. In any event such statements were in his opinion highly unreliable because before photographs were shown all kinds of promises were made so that when it came to identifying individuals the persons concerned knew exactly what was expected of them by the interrogator, whether police officer or judge. The witnesses N. and R. did not appear, the latter despite the order that he be brought before the court by the police. The defence thereupon withdrew its request to have R. and N. examined before the court in order to avoid a further adjournment of the hearing which would mean prolonging the applicant's detention on remand. The applicant's lawyer gave a critical analysis of the statements made by the anonymous witnesses. He remarked moreover that there were no valid reasons for preserving their anonymity as it had not been demonstrated that the applicant had ever taken reprisal action or was of a violent disposition. 20. On 13 December 1988 the Regional Court convicted the applicant of drug trafficking and sentenced him to fifteen months' imprisonment. In so doing it took into consideration the fact that the applicant had previously been convicted of similar offences. 21. The applicant appealed to the Amsterdam Court of Appeal (gerechtshof). 22. By letter of 6 November 1989 the applicant's lawyer requested the procurator general (procureur-generaal) of the Court of Appeal to summon the anonymous witnesses, the named witnesses N. and R. and the expert L. for questioning at that court's hearing, which was scheduled on 30 November. The procurator general replied by letter of 22 November that he would summon N., R. and L. but not the anonymous witnesses as he wished to preserve their anonymity. If necessary, the Court of Appeal could decide at the hearing to order these witnesses to be heard in camera by the investigating judge. 23. On 24 November 1989 the applicant's lawyer wrote to the president of the Court of Appeal requesting that the six anonymous witnesses be summoned. In support of this request he pointed out that neither his client nor he had ever had the opportunity to question these witnesses. In this context he referred to the judgment of the European Court of Human Rights in the case of Kostovski v. the Netherlands, which had been delivered four days earlier (judgment of 20 November 1989, Series A no. 166). 24. The hearing of the Court of Appeal on 30 November 1989 was attended by the expert L. but none of the witnesses appeared. The applicant therefore requested that the hearing be adjourned so that they might be summoned for questioning in open court at a later date or, in the alternative, by the investigating judge. The Court of Appeal decided to verify the necessity of maintaining the anonymity of the witnesses and referred the case back to the investigating judge for this purpose. The Court of Appeal also requested the investigating judge to examine the witnesses - after deciding whether their anonymity should be preserved or not - with respect to the facts imputed to the applicant, and to offer his lawyer the opportunity both to attend this examination in the room in which it would take place and to put questions to the witnesses. The court also expressed the wish that the series of photographs used by the police should, if still available, be added to the file. Finally, it ordered the appearance of the witnesses R. and N. and the expert L. before it and adjourned the hearing sine die. 25. On 14 February 1990 the investigating judge heard the witnesses Y.15 and Y.16 in the presence of the applicant's lawyer. The investigating judge was Judge Sm. of the Amsterdam Regional Court, who had taken part in the hearing on 25 August 1988 as a member of the trial court and in the decisions taken on that occasion (see paragraph 16 above). The lawyer was given the opportunity to put questions to the witnesses but was not informed of their identity. The identity of both witnesses was known to the investigating judge. Both witnesses expressed the wish to remain anonymous and not to appear in court. Witness Y.16 stated that he had in the past suffered injuries at the hands of another drug dealer after he had "talked" and feared similar reprisals from the applicant. Witness Y.15 stated that he had in the past been threatened by drug dealers if he were to talk. He further stated that the applicant was aggressive. The investigating judge concluded from the reasons given that both witnesses had sufficient reason to wish to maintain their anonymity and not to appear in open court. Y.15 and Y.16 were extensively questioned, both by the investigating judge and by the applicant's lawyer. The latter inquired, inter alia, into their reasons for testifying against a dealer who they both said sold good quality drugs and asked them whether they were being paid for giving evidence. Neither Y.15 nor Y.16 refused to answer any of the questions put by the applicant's lawyer. They both stated that they had bought drugs from the applicant and that they had seen him selling drugs to others. They again identified him from the police photograph and gave descriptions of his appearance and dress. Y.16 stated in addition that the police had rehearsed his previous statement with him before taking him to see the investigating judge. The official record of the examination of Y.15 mentions that the investigating judge, having come to the conclusion that Y.15 had good reasons for not wishing to have his identity revealed or to be heard in open court, placed him on oath; a similar statement is lacking in the official record of the examination of Y.16. 26. On 20 March 1990 Judge Sm. drew up an official record of her findings containing information obtained from the police with regard to witnesses Y.05, Y.06, Y.13 and Y.14. Y.06, who was a foreign national, had been expelled from the Netherlands. Y.13's place of residence was unknown. Y.05 and Y.14 had been seen but attempts to trace them so as to bring them before the investigating judge had not been successful. She added that the sets of photographs could not be spared by the police; however, should the Court of Appeal so order, the police could produce them at the trial. On the same day Judge Sm. returned the file to the Court of Appeal. 27. After notice had been given to the defence that the hearing of the Court of Appeal would resume on 10 May 1990, the applicant's lawyer requested the procurator general by letter of 17 April 1990 to summon all six anonymous witnesses, Y.05, Y.06, Y.13, Y.14, Y.15 and Y.16, to attend. On 2 May 1990 the procurator general refused this request on the ground that Y.15 and Y.16 had been heard for a second time in the presence of the applicant's lawyer by the investigating judge, who had been aware of their identity and had found that they had valid reasons for their wish to remain anonymous. He further found that in view of the findings of the investigating judge it would serve no useful purpose to attempt to call the other anonymous witnesses. It was also necessary to take into account the desirability of bringing proceedings to an end as expeditiously as possible (lites finiri oportet). 28. On 10 May 1990 the Court of Appeal recommenced its examination, having changed composition. The defence again asked the court to hear R. and N. and the six anonymous witnesses. The court, however, further considering the wish of the witnesses Y.15 and Y.16 to remain anonymous, concluded that it had been decided on sufficiently convincing grounds that these two witnesses had good reasons to feel seriously threatened, in view, inter alia, of police records contained in the case file from which it appeared that there was a real possibility that drug dealers might threaten potential witnesses. Accordingly, it did not order them to be summoned. As to the witnesses Y.05, Y.06, Y.13 and Y.14, the court accepted the findings of the investigating judge that it would be pointless to summon them. On the other hand, the Court of Appeal ordered that the witnesses R. and N. be brought before it by force and adjourned its hearing until 28 August 1990. 29. By letter of 15 August 1990 the defence again requested the procurator general to produce the six anonymous witnesses. By letter of 17 August 1990 they also asked him to call K., a university lecturer in criminology who had done a great deal of research on drug addicts in Amsterdam, and V., a former drug addict who had personal experience of interrogation by the police. 30. The procurator general refused both requests on 22 August 1990. As regards the six anonymous witnesses, he referred to his earlier decisions of 22 November 1989 and 2 May 1990 and reiterated the finding of the Court of Appeal of 10 May 1990. He based his decision not to call K. and V. on the fact that K. had published a book which rendered his views sufficiently clear and which the defence could quote at the hearing if desired, and on the assumption that V. would not be able to make statements about anything other than his own experiences as a person suspected of drug offences. It was also unnecessary to call either of them in view of the fact that the expert L. would appear at the hearing on 28 August. 31. On 28 August 1990, the Court of Appeal resumed its hearing. The witness V., who was in prison, did not appear. The defence withdrew its request to have him heard but maintained its request that the Court of Appeal should hear the six anonymous witnesses and the expert K. Referring to its decision of 10 May, the Court of Appeal refused to accede to the request of the defence to hear the six anonymous witnesses. However, in view of the judgment of the Supreme Court of 2 July 1990 (see paragraph 46 below), it decided to refer the case back to the investigating judge, requesting her to record her findings as to the reliability of the witnesses Y.15 and Y.16, adding that if in order to appraise their reliability the investigating judge found it necessary to hear them again she should do so. Although the expert K. was present at the hearing on 28 August 1990, having been convened by the defence, the Court of Appeal decided not to hear him. The reason given was that as an expert rather than a witness he could not be expected to contribute to the elucidation of the facts of the case. The witness N. was heard by the Court of Appeal in the applicant's presence and the applicant's lawyer was given the opportunity to question him. N. said that his statement to the police had been untrue and that he did not in fact know the applicant. In pursuance of the court's order of 10 May 1990 that he be brought by force, the named witness R. was present initially. It appears that before he was heard, he asked the court usher who was guarding him for permission to leave for a minute; this being allowed him, he then disappeared and could not be found again. The court subsequently ordered that he be brought before it by force at its next hearing on 22 November 1990. The Court of Appeal heard the expert L., who stated that drug addicts often made unreliable statements concerning alleged drug dealers to the police. He understood from drug addicts that police officers made promises to them and that they made statements only in order to be allowed to leave as soon as possible. Such statements were, in his view, "somewhere between the truth and a lie". 32. On 19 November 1990 the investigating judge, Judge Sm., drew up a record of her findings regarding the reliability of the statements made to her by Y.15 and Y.16 on 14 February 1990. She stated in this document that she could not remember the faces of the two witnesses, but having re-read the records of the interrogations could recall more or less what had happened. She had the impression that both witnesses knew whom they were talking about and had identified the applicant's photograph without hesitation. With regard to the facts of which the applicant stood accused, her impression had been that the witnesses themselves believed their statements to be true. As far as she remembered, both witnesses had answered all questions readily and without hesitating although they had made a "somewhat sleepy impression". 33. At the Court of Appeal's hearing on 22 November 1990, the witness R. did not appear, the police having been unable to find him. The court thereupon decided that a new order for R.'s appearance would be pointless. The procurator general brought forward a police officer, I., who had been involved in the investigation and asked that he be heard. The applicant's lawyer protested that the expert K. had not been heard and that the defence had no opportunity to prepare for the questioning of I.; to agree to hear I. now would prejudice the rights of the defence. The Court of Appeal nonetheless acceded to the request, and I. was heard concerning the way in which the investigation had been conducted. I. explained that from 1982 until 1988 he had been a member of a police team set up to fight drug trafficking in the centre of Amsterdam. Over the years that team had built up a good understanding with many of the drug addicts living in that area; making use of that relationship, they had asked them for information on drug dealers. Their cooperation was wholly voluntary. I. denied that the police made promises to drug addicts or put pressure on them; nor were photographs shown to addicts who had been arrested. In his assessment the statements made by drug addicts were therefore highly reliable. Moreover, action was only taken against alleged drug dealers if there were at least eight statements incriminating them. He further confirmed that it had happened in the past that convicted drug dealers, after serving their sentence, had threatened and assaulted drug addicts who had made incriminating statements against them. Although he had never known the applicant to resort to violence or threats, he did not rule out the possibility that he might do so. The defence challenged the reliability of the statements made by the various witnesses, both named and anonymous, pointing to what they considered to be inconsistencies among them. They objected particularly to the admission as evidence of the statements made by Y.15 and Y.16, on the grounds, inter alia, that both were drug addicts and that the investigating judge's record of her findings of 20 March 1990 did not contain a statement that she believed that the witnesses had been telling the truth. Relying on the Hauschildt v. Denmark judgment of the European Court of Human Rights of 24 May 1989 (Series A no. 154), they moreover expressed doubts as to the impartiality of the investigating judge, Judge Sm., in that as a member of the Regional Court she had taken part in the hearing of the Regional Court of 25 August 1988 and in the decisions then made. They protested against the refusal to hear K. 34. On 6 December 1990, the Court of Appeal quashed the Regional Court's judgment of 13 December 1988, as it was adopting a different approach with regard to the evidence. It found the applicant guilty of the deliberate sale of quantities of heroin and cocaine. This finding was based on the following evidence: (a) the fact, as appeared from the police records, that upon information that the applicant was engaged in drug trafficking his photograph was added to the collection of photographs of persons suspected of that offence; (b) the statements made before the investigating judge on 14 February 1990 by Y.15 and Y.16 (see paragraph 25 above); (c) the fact that on 13 April 1988 the applicant had recognised himself on the police photograph (see paragraph 12 above); (d) the statements made to the police by the named witnesses N. and R. (see paragraph 10 above). As regards the applicant's complaint that the majority of the witnesses had not been heard in the presence of the applicant or his lawyer, the court stated that it had based its conviction on evidence given by the witnesses N., R., Y.15 and Y.16. The latter two had been questioned by the investigating judge in the presence of the applicant's lawyer. The Court of Appeal added that it had used their statements "with the necessary caution and circumspection". It held that these statements could be used in evidence, in view, inter alia, of the consistency between them and the testimony of the police officer I. It also found that the reliability of the witnesses and the well-foundedness of their wish to remain anonymous had been sufficiently verified by the investigating judge. The witness N. had been heard in open court both at first instance and on appeal. Although he had retracted his earlier statement to the police, that was the statement which the Court of Appeal chose to believe in light of the testimony of the police officer I. Finally, the mere fact that the defence had not had the opportunity to question R. did not mean that his statement could not be used in evidence. The Court of Appeal rejected the applicant's complaint based on the alleged lack of impartiality of Judge Sm. It noted that the hearing on 25 August 1988 had been summary; the Regional Court had only considered the applicant's request to have the six anonymous witnesses examined and his request for release. During that hearing the Regional Court had not examined the substance of the applicant's case. It did not appear, nor had it been argued, that Judge Sm. had had any dealings with Y.15 and Y.16 before questioning them. An investigating judge in any case did not have to provide the same safeguards as a member of a trial court. Furthermore, no particular facts or circumstances had been suggested or had come to light warranting the conclusion that she had not been able to form an unprejudiced opinion as to the reliability of the witnesses she had examined, or that she had been biased in her examination of those witnesses. The applicant was sentenced to fifteen months' imprisonment. The time which he had spent in police custody and detention on remand was deducted from the sentence. 35. The applicant filed an appeal on points of law to the Supreme Court (Hoge Raad). Counsel for the applicant submitted a statement of grounds of appeal on 29 November 1991. The complaints put forward, in so far as relevant, were the following. In the first place, the Court of Appeal ought not to have refused to hear the expert K. The fact that the court had chosen to hear I. at the behest of the prosecution, which had brought him forward at the last moment, meant that the applicant had not had the possibility to obtain the attendance of a witness on his behalf under the same conditions as a witness against him. In addition, the court had failed to give sufficient reasons as to why the statement of K. could not serve the purpose of elucidating the facts, the court not having set out anything either in the record of the hearing or in its judgment with regard to the testimony that K. intended to give. In the second place, the Court of Appeal ought not to have relied on the statements made by Y.15 and Y.16. It had ignored the wish of the defence to have them brought before the trial court in order that that court might itself see how unreliable they were and in order that the applicant might put questions to them in person. In the third place, the Court of Appeal ought not to have taken account of the statement of R., whom the defence had not had the opportunity to question; nor should it have decided after he had been allowed to abscond that there was no further point in attempting to obtain his attendance. In the fourth place, given the fact that the prosecution had brought forward the witness I. at the very last moment and without the defence having had any opportunity to prepare itself, the Court of Appeal should have either declined to hear him or deferred his examination to a later date. In the fifth place, the Court of Appeal ought not to have relied on witness statements taken by an investigating judge (Judge Sm.) who had previously, as a member of a trial court and on the basis of the evidence then contained in the case file (which included statements of all eight witnesses), taken part in a decision to prolong the applicant's detention on remand. Judge Sm. had, in his view, failed to preserve an appearance of impartiality. 36. In accordance with the advisory opinion of the advocate general (advocaat-generaal), Mr Fokkens, the applicant's appeal was rejected by the Supreme Court on 24 March 1992. As to the first complaint, the Supreme Court held that the Court of Appeal had given sufficient reasons for not hearing K., especially since the defence had not indicated in what way his statement might be relevant to any decision regarding the charges proffered. Nor had the applicant been denied a "fair hearing" in this respect; it made no difference that, in spite of the protests made by the defence, the Court of Appeal had given the prosecution the opportunity to have a witness heard without previously announcing its intention to bring him forward. As to the second complaint, it was held that the mere fact that a defendant in a criminal case was not able to question an anonymous witness himself but had to do so through his counsel did not constitute a violation of the right to a "fair trial", guaranteed by Article 6 para. 1 (art. 6-1) of the Convention, or of the right protected by Article 6 para. 3 (d) (art. 6-3-d). As to the third complaint, the Supreme Court found that the reasoning on which the Court of Appeal had based its decision to make no further attempts to have R. brought before it was not unintelligible; in any case, it could not assess the validity of that reasoning since this was mainly a question of appreciation of facts. In view of the fact that it had proved pointless to repeat attempts to have R. brought before the Court of Appeal by force and of the fact that his statement was sufficiently corroborated by other evidence, in particular the statement made by N. to the police, the Court of Appeal had been entitled to use his statement in evidence. As to the fourth complaint, it was held that the Court of Appeal had not been bound to construe the protests put forward by the defence either as a request for an adjournment or as a defence plea requiring a reasoned decision. As to the fifth complaint, the Supreme Court concurred with the Court of Appeal that there was no reason to assume that Judge Sm. had lacked the required impartiality or that the applicant could have had any cause for so fearing. It continued: "The mere fact that a judge who has been involved in adecision at first instance refusing requests made by thedefence to adjourn the hearing and to refer the case backto the investigating judge for the hearing of anonymouswitnesses and in decisions refusing requests for thetermination or suspension of detention on remand, hasafterwards, pursuant to an order of the Court of Appeal,heard the said witnesses and given an opinion on thereliability of their testimony and on their reasons forremaining anonymous as a rule does not imply that onappeal the requirement of trial by an `impartialtribunal' in the sense of Article 6 para. 1 (art. 6-1)has not been met. It does not appear from the case filethat there are any special circumstances which in thepresent case should lead to a different conclusion." 37. Except for the differences noted below (see paragraphs 45 and following), relevant domestic law and practice at the time of the criminal proceedings complained of were as set out in the Court's above-mentioned Kostovski judgment of 20 November 1989. Reference is therefore made to that judgment, especially pp. 13-17, paras. 22-32. In so far as legal provisions relating to detention on remand are of relevance, reference is made to the Court's Nortier v. the Netherlands judgment of 24 August 1993 (Series A no. 267), pp. 13-14, para. 27. 38. The public prosecutor has the power to call witnesses and experts to the hearing (Article 260 CCP). In his summons to the accused he gives a list of the witnesses and experts to be brought forward by the prosecution. If the accused wishes to call witnesses, he can - according to Article 263 - submit a request to the public prosecutor no later than three days before the court hearing to summon a witness before the court. As a rule, the public prosecutor should summon the witness, but - according to Article 263 para. 4 - he may refuse to do so if it is to be reasonably assumed that no prejudice to the rights of the defence will be caused if the witness is not heard in open court ("Indien redelijkerwijs moet worden aangenomen, dat de verdachte niet in zijn verdediging kan worden geschaad wanneer een door hem opgegeven getuige ... niet ter terechtzitting wordt gehoord"). He has to give a reasoned decision in writing and must at the same time inform the defence of its right under Article 280 para. 3 (see paragraph 40 below) to renew the request to the trial court at the hearing. 39. At the opening of the trial hearing the prosecutor hands to the court a list of all the witnesses called, which is then read out by the registrar (griffier) (Article 280 para. 2). 40. If the public prosecutor has failed to summon a witness at the request of the accused, or declined to do so, the defence may ask the court to have that witness summoned (Article 280 para. 3). The court so orders, unless it finds that the non-appearance of this witness cannot reasonably be considered prejudicial to the rights of the defence ("De rechtbank beveelt dat de ... getuige ... zal worden gedagvaard of schriftelijk opgeroepen, tenzij zij ... van oordeel is dat door het achterwege blijven daarvan de verdachte redelijkerwijs niet in zijn verdediging kan worden geschaad" - Article 280 para. 4). 41. A request by the defence to hear a witness who has not been placed on the list of witnesses, who has not been convened to attend the trial and whose summons the defence has not sought in accordance with Article 280 falls under Article 315 CCP (see paragraph 42 below). It appears from the judgment of 23 December 1986 by the Supreme Court that the trial court needs only accede to a request of this nature if it finds it necessary to do so. 42. Under Article 315 CCP the trial court has the power to order of its own accord the production of evidence, including the summoning of witnesses whom it has not yet heard. 43. If it finds that there is occasion to do so, the trial court may order that a witness be brought to its hearing by the police (Articles 282 para. 1 and 315 CCP). 44. If at the trial the trial court finds it necessary to have any factual question examined by the investigating judge, it must suspend the hearing and refer the question to the investigating judge along with the case file. The investigation carried out by the investigating judge in these cases is deemed to be a preliminary judicial investigation and is subject to the same rules (Article 316 CCP). 45. Appeal proceedings against the conviction or sentence at first instance involve a complete rehearing of the case. Both the prosecution and the defence may ask for witnesses already heard at first instance to be heard again; they may also produce new evidence and request the hearing of witnesses not heard at first instance (Article 414 CCP). The defence enjoys the same rights as it does at first instance (Article 415 CCP). 46. In its judgment of 2 July 1990, Nederlandse Jurisprudentie (Netherlands Law Reports, "NJ") 1990, no. 692, the Supreme Court considered that it had to be assumed in light of the European Court's Kostovski judgment that the use of statements by anonymous witnesses was subject to stricter requirements than those defined in its case-law until then. It defined these stricter requirements in the following rule: such a statement must have been taken down by a judge who (a) is aware of the identity of the witness, and (b) has expressed, in the official record of the hearing of such a witness, his reasoned opinion as to the reliability of the witness and as to the reasons for the wish of the witness to remain anonymous, and (c) has provided the defence with some opportunity to put questions or have questions put to the witness. This rule is subject to exceptions; thus, according to the same judgment, the statement of an anonymous witness may be used in evidence if (a) the defence have not at any stage of the proceedings asked to be allowed to question the witness concerned, and (b) the conviction is based to a significant extent on other evidence not derived from anonymous sources, and (c) the trial court makes it clear that it has made use of the statement of the anonymous witness with caution and circumspection. 47. The Act of 11 November 1993, Staatsblad (Official Gazette) 1993, no. 603, has added to the CCP a number of detailed provisions relating to the "protection of witnesses". It entered into force on 1 February 1994. The additions include the following. Article 226a now provides that the identity of a witness may remain secret if there is reason to believe that the disclosure of his identity may threaten his life, health, safety, family life or socio-economic existence and if the witness has made it clear that he does not wish to make any statement because of this. The decision is made by the investigating judge, who must first hear the prosecution, the defence and the witness himself. An appeal against the decision of the investigating judge lies to the trial court (Article 226b). The investigating judge may order that a threatened witness be heard in the absence of the accused, or of counsel, or of both, so as not to disclose the identity of the threatened witness; in that event, the prosecution authorities may not attend the questioning of the witness either. The investigating judge must then allow the defence to put questions of its own to the witness, either through the use of telecommunication or in writing (Article 226d). Article 264 now lays down that the prosecution may refuse to summon a threatened witness. If the trial court has ordered that a witness be heard and that witness turns out to be under threat, he must be heard in camera by the investigating judge (Article 280 para. 5). The statement of an anonymous witness taken in accordance with the above-mentioned provisions may only be used in evidence against a person accused of crimes in respect of which his detention on remand is permitted (Article 342 para. 2 (b)). A new paragraph has been added to Article 344 to the effect that a statement of a person whose identity is not apparent may only be used in evidence if the conviction is based to a significant degree on other evidence and if the defence has not at any time during the trial sought to question that person or have him questioned.