BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF
POPPE v. THE NETHERLANDS
(Application
no. 32271/04)
JUDGMENT
STRASBOURG
24
March 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Poppe v. the Netherlands,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura-Sandström,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Ineta
Ziemele,
Ann
Power,
judges,
Pieter
van Dijk, ad
hoc judge,
and
Stanley Naismith, Deputy
Section Registrar,
Having
deliberated in private on 3 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32271/04) against the Kingdom
of the Netherlands lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Netherlands national, Mr
Bart Poppe (“the applicant”), on 1 September 2004.
- The
applicant was represented initially by Mr M. Ferschtman, who was
later replaced by Mr A.A. Franken, both at relevant times lawyers
practising in Amsterdam. The Netherlands Government (“the
Government”) were represented by their Agent, Mr R.A.A. Böcker
of the Netherlands Ministry for Foreign Affairs.
- The
applicant alleged a violation of Article 6 § 1 of the Convention
in that two judges of the first-instance court that tried him had
previously dealt with cases concerning a number of his co-accused and
had, in the judgments concerning those co-accused, set out that, and
in what way, the applicant was involved in the criminal offences at
issue.
- By
a decision of 21 October 2008, the Court declared the application
admissible.
- The
applicant and the Government both declined to submit further written
observations.
THE FACTS
I. CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Bart Poppe, is a Netherlands national who was born in
1966 and lives in Amsterdam.
A. The first-instance proceedings
- In
April 2000 the applicant was arrested on suspicion of various
drugs-related offences. He was subsequently charged – as
co-actor (medepleger) in a group of eight persons – with
trafficking “hard” drugs, preparation of the offence of
drug trafficking, handling, and participation in a criminal
organisation. In addition, he was separately charged with the
unlawful possession of a firearm.
- The
applicant's trial was due to start before the Haarlem Regional Court
(arrondissementsrechtbank) on 1 March 2001. By that time, the
applicant had become aware that a number of co-accused had already
been tried and convicted by the same tribunal. In the proceedings
against his co-accused C1, C2, C3 and C4 the Regional Court had
included the same president, X, and senior judge (oudste rechter),
Y, who were to sit on the bench that would deal with his case. Prior
to the hearing, counsel for the applicant wrote a letter to the
president of the trial chamber requesting him and the senior judge to
stand down because of their involvement in the trials of those
co-accused. X and Y did not stand down, and on the day of the hearing
a formal challenge application (wrakingsverzoek) was lodged on
behalf of the applicant. The Challenge Chamber (wrakingskamer)
dismissed the application, considering that the mere fact that two
members of the trial chamber had convicted a number of co-accused of
offences relating to the offences with which the applicant had been
charged did not as such entail that those members were biased in the
criminal proceedings against the applicant. According to the
Challenge Chamber, the arguments adduced by counsel for the applicant
did not admit of the conclusion that the judges concerned had already
formed an opinion on any role which the applicant might have played
in the commission of those offences, and neither did they reveal any
extraordinary circumstances indicating bias against the applicant on
the part of those judges or indicating that the applicant's fear of
bias was objectively justified.
- On
15 March 2001, the Regional Court found the applicant guilty of the
charges against him, except for the charge of handling of which he
was acquitted. Taking into account that the applicant had not played
a prominent role but rather a facilitating one within the
organisation, the Regional Court sentenced him to three years'
imprisonment.
B. The proceedings in appeal
- The
applicant lodged an appeal with the Amsterdam Court of Appeal
(gerechtshof). In the course of these proceedings, the
complete judgments rendered by the Haarlem Regional Court in the
cases against the co-accused C3 and C4 became available, only
abridged versions not containing the evidence relied on by the
Regional Court having been available at the time of the applicant's
trial by the Regional Court. The applicant referred to these complete
judgments in support of his argument that the Regional Court had
lacked impartiality due to the fact that X and Y had participated in
the trials against co-accused. The Regional Court's judgment
concerning co-accused C3 included the following considerations:
“D was the linchpin (spil) of the
organisation in the Netherlands, whose aim it was to import and
export 'hard' drugs. C, [the applicant] and W were D's confidants in
this context, with the latter making use of the facilities and/or
services with which these three could provide him...
As far as the export of amphetamine is concerned, D was
also the organiser of this, and C3 the financier. C2 supplied the
drugs, while K, [the applicant] and H carried out the actual work.”
The
judgment concerning co-accused C4 included the following:
“The duo D-C4 constituted the linchpin of the
organisation. ... C and [the applicant] were confidants of D, with
the latter making use of the facilities and/or services with which
these two could provide him.”
- In
the course of a hearing held on 23 April 2002, the Court of Appeal
rejected the applicant's plea for the case to be remitted to the
Regional Court. Examining whether the applicant's fear of a lack of
impartiality of judges X and Y could be objectively justified, it
held:
“Contrary to what has been adduced by counsel, no
such objective justification can be found in the earlier
considerations of the Regional Court. Those earlier considerations do
not, after all, entail that the examination in the present case of
the reproach made of [the applicant] in respect of participation in
the same criminal organisation and of involvement in the import and
export of 'hard' drugs, in particular amphetamine, was anticipated.
It is the normal statutory task of the judge ... only to rule on the
basis of the indictment and further to the trial of the accused,
excluding from his consideration his decisions reached in other cases
of other accused.
Special circumstances constituting a compelling
indication to find that a fear held by [the applicant] may be
objectively justified are not contained in counsel's arguments or in
the circumstances that have otherwise become apparent. The finding
relating to [the applicant] as expressed in the earlier judgments is
not so specific and/or has not been reasoned in such a way as to lead
to a different conclusion. ...
It is also relevant that there is no indication that the
Regional Court has in any way felt itself bound by the findings of
the previous judgments when dealing with and deciding on the case of
[the applicant]. In particular it has not been argued, and the Court
of Appeal fails to see, that the Regional Court has based its
judgment in any way on any decision taken in those earlier judgments.
On the contrary, it appears from the case file that the Regional
Court examined [the applicant's] case in its entirety, without even
one of the questions which the Regional Court had to answer being
considered as having been dealt with in the earlier judgments. This
is in particular also the case in respect of the questions whether
[the applicant] participated in the criminal organisation referred to
in the indictment and whether he was involved in the import and
export of 'hard' drugs and in particular of amphetamine.”
- The
Court of Appeal held a hearing on the merits of the case on
26 November 2002. Asked to state the reasons why he had lodged
his appeal, the applicant replied that he had not been wrongly
convicted but considered the sentence excessive.
- On
10 December 2002 the Court of Appeal gave judgment. It quashed
the judgment of the Regional Court and, deciding anew, convicted the
applicant of being a co-actor in the offences of drug trafficking and
participation in a criminal organisation. The conviction was based on
the applicant's confessions before the police and in open court and
on other evidence, namely transcripts of recorded telephone
conversations, official reports of police observation and of the
interception in transit of quantities of illegal narcotics, and
statements of co-accused. The applicant was again sentenced to three
years' imprisonment.
- In
the meantime, on 17 September 2001, a differently composed bench of
the same Court of Appeal, in the criminal proceedings against the
applicant's co-accused C3, accepted that C3 had an objectively
justified fear of bias on the part of the first-instance court and
remitted his case for retrial. That first-instance court – the
Haarlem Regional Court – had held in its judgments
relating to three co-accused that C3 “[had] maintained the
contacts abroad and also provided the necessary finances.”
C. The proceedings in appeal on points of law
- The
applicant lodged an appeal on points of law (cassation) with the Hoge
Raad, the highest court of criminal jurisdiction. He
submitted that the decision of the Court of Appeal to dismiss his
arguments relating to the lack of impartiality of the Regional Court
and the refusal to remit his case to the Regional Court was contrary
to Article 6 of the Convention. He further contended that he had been
deprived of the opportunity to have his case considered by an
impartial tribunal at first instance, which made the trial as a whole
unfair.
- On
18 May 2004 the Hoge Raad upheld
the appeal on points of law because the length of proceedings had
exceeded a reasonable time. It therefore quashed the judgment of the
Court of Appeal, but only in respect of the sentence, which was
reduced by two months to two years and ten months. The Hoge
Raad rejected the applicant's arguments relating to
the alleged bias on the part of judges X and Y.
II. RELEVANT DOMESTIC LAW
- An appeal can only be lodged against the
first-instance judgment in its entirety, although cases joined at
first instance can be disjoined at the appeal stage (Article 407 of
the Code of Criminal Procedure). The appeal proceedings 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). The defence
enjoys the same rights as it does at first instance (Article
415).
- Both
the prosecution and the defence may challenge (wraken) judges
on the ground of facts or circumstances that might be detrimental to
judicial impartiality (Article 512).
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
he had not had a fair trial in that, in the criminal proceedings
against him, two judges of the Regional Court had not been impartial
as they had previously dealt with cases concerning a number of
co-accused of the applicant and had, in the judgments concerning
those co-accused, set out that, and in what way, the applicant had
been involved in the criminal offences at issue. Relying on Article 6
§ 1 of the Convention, he submitted that his case ought to have
been remitted to the Regional Court for retrial like that of his
co-accused C3.
Article
6 § 1 of the Convention, in the relevant part, provides as
follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
The
Government disputed the applicant's allegations.
1. Argument before the Court
- The
applicant argued that the references to him and his involvement in
the crimes contained in the judgments convicting C3 and C4 were both
sufficiently numerous and sufficiently specific to constitute
objective justification for his fears of bias. He relied on, in
particular, Ferrantelli and Santangelo v. Italy, judgment of 7
August 1996, Reports of Judgments and Decisions 1996 III.
Invoking De Cubber v. Belgium, judgment of 26 October
1984, Series A no. 86, p. 19, § 33, he
argued that the Court of Appeal had failed to remedy the situation of
which he complained because it had not quashed the first-instance
judgment on that ground; the only appropriate form of redress, in his
submission, would have been for the case to be remitted to the
Regional Court for retrial like that of his co-accused C3.
- The
Government submitted that although the Regional Court judgments given
against the applicant's co-accused C3 and C4 named the applicant as
an associate, he was mentioned only a few times and no detailed
description was given of the extent or nature of the applicant's
involvement in the crimes committed. In these circumstances, there
was no reason to hold that the participation in the applicant's trial
of two of the Regional Court judges who had previously tried the two
co-accused justified doubts as to the impartiality of the Regional
Court when it tried the applicant. They also relied on considerations
of judicial efficiency, suggesting that if the Court were to make it
impossible for judges to try members of criminal organisations
together then the workload of the courts would be multiplied.
2. The Court's assessment
- As the Court has held many times, the existence of
impartiality for the purposes of Article 6 § 1 must be
determined according to a subjective test, that is on the basis of
the personal conviction and behaviour of a particular judge in a
given case, and also according to an objective test, that is by
ascertaining whether the judge offered guarantees sufficient to
exclude any legitimate doubt in this respect (see, among many other
authorities, Ferrantelli and Santangelo, cited above, §
56, and Rojas Morales v. Italy, no. 39676/98, § 30, 16
November 2000).
- The
Court takes note of the Government's argument that the work of the
criminal courts, as a matter of practice, frequently involves judges
presiding over various trials in which a number of co-accused persons
stand charged. The Court considers that the work of
criminal courts would be rendered impossible if, by that fact alone,
a judge's impartiality could be called into question. However,
in proceedings originating in an individual application the Court has
to confine itself, as far as possible, to an examination of the
concrete case before it. Moreover, the Court reiterates that
the Contracting States are under the obligation to organise their
legal systems so as to ensure compliance with the requirements of
Article 6 § 1, impartiality being unquestionably one of the
foremost of those requirements. The
Court's task is to determine whether the Contracting States have
achieved the result called for by the Convention (see Dorozhko and
Pozharskiy v. Estonia, nos.
14659/04 and 16855/04, § 53, 24 April 2008).
- As to the subjective test, the applicant did not call
into question the personal impartiality of the judges concerned.
- As regards impartiality from an objective standpoint,
it must be determined whether, quite apart from the judge's conduct,
there are ascertainable facts which may raise doubts as to his or her
impartiality. In this respect even appearances are of importance
since justice must not just be done but must be seen to be done. What
is at stake is the confidence which the courts in a democratic
society must inspire in the public. This implies that in deciding
whether in a given case there is a legitimate reason to fear that a
particular judge lacks impartiality, the perception of the accused is
important but not decisive. What is decisive is whether this fear can
be held to be objectively justified (see Ferrantelli and
Santangelo, § 58, and Rojas Morales, § 32).
- The
mere fact that a judge has already ruled on similar but unrelated
criminal charges or that he or she has already tried a co-accused in
separate criminal proceedings is not, in itself, sufficient to cast
doubt on that judge's impartiality in a subsequent case. It is,
however, a different matter if the earlier judgments contain findings
that actually prejudge the question of the guilt of an accused in
such subsequent proceedings. Following the same approach as in
Martelli v. Italy (dec.), no. 20402/03, 12 April 2007 the
Court will, therefore, examine the judgments handed down by the
Regional Court to the applicant's co-accused C3 and C4.
- The
Regional Court's judgment in the case of C3 describes one D as the
“linchpin” of the criminal organisation and C3 as its
financier. The applicant is named as a “confidant” who
carried out unspecified “work”. The judgment against C4
describes D and C4 together as the “linchpin”; the
applicant again appears as a “confidant” who provided
“facilities and/or services” used by D but described in
no further detail.
- In
both judgments the names of the applicant and others are mentioned in
passing, merely to illustrate and clarify the leading role played in
the criminal organisation by the persons convicted, that is to say C3
and C4 respectively. Whether the applicant's involvement with C3 and
D fulfilled all the relevant criteria necessary to constitute a
criminal offence and, if so, whether the applicant was guilty, beyond
reasonable doubt, of having committed such an offence was not
addressed, determined or assessed by the trial judges whose
impartiality the applicant now wishes to challenge. There is no
specific qualification of the involvement of the applicant or of acts
committed by him, criminal or otherwise. In this the facts of the
applicant's case differ from those of Ferrantelli and Santangelo
and Rojas Morales. It cannot therefore be said that any fears
of bias on the part of the Regional Court which the applicant might
have had are objectively justified.
- In the light of this finding, the Court is not
required to consider whether any lacunae in judicial protection at
first instance necessitated the quashing of the first instance
judgment by the appellate courts in the subsequent appeal and
cassation proceedings or the remittal of the
applicant's case (see Clarke v. United Kingdom (dec.),
no. 23695/02 , ECHR 2005-X (extracts).
- There
has been no violation of Article 6 of the Convention.
FOR THESE REASONS, THE COURT
Holds by six votes
to one that there has been no violation of Article 6 § 1 of
the Convention.
Done in English, and notified in writing on 24 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep Casadevall
Deputy Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the separate opinion of Judge Gyulumyan is
annexed to this judgment.
J.C.M.
S.H.N.
DISSENTING OPINION OF JUDGE GYULUMYAN
I regret that I am unable to subscribe to the majority's opinion that
there has been no violation of Article 6 §1 of the Convention in
this case.
As the majority rightly observe in respect of judges' impartiality,
even appearances may be of a certain importance, in other words,
“justice must not only be done, it must also be seen to be
done” (see Dorozhko and Pozharskiy v. Estonia,
nos. 14659/04 and 16855/04,
§ 52, 24 April 2008; Micallef v. Malta, no. 17056/06, §
75, 15 January 2008; and De Cubber v. Belgium, 26 October
1984, § 26, Series A no. 86).
I
consider that there was at least an appearance of a lack of
impartiality on the part of the judges X and Y, who took part in the
applicant's first-instance trial and had previously delivered
judgments against the applicant's co-accused C3 and C4 in which the
applicant was named as a person involved in the crimes concerned.
I
accept the approach of the majority in examining the judgments handed
down by the Regional Court to the applicant's co-accused C3 and C4,
but I cannot agree with the finding that in both judgments “the
names of the applicant and others are mentioned in passing” and
that “there is no specific qualification of the involvement of
the applicant or of acts committed by him, criminal or otherwise”.
The
Regional Court's judgments concerning the applicant's co-accused C3
and C4 contained numerous references to the acts committed by the
applicant, particularly the judgment in the case of C3 which included
the following statement:
“As far as the export of amphetamine is
concerned, D was also the organiser of this and C3 the financier. C2
supplied the drugs, while K, [the applicant] and H carried out the
actual work.”
I
believe that referring to the applicant's carrying out the actual
work in a criminal organisation is a specific description, even a
qualification, of the involvement of the applicant and of the acts
committed by him.
These
circumstances are sufficient to hold the applicant's fears as to the
lack of impartiality of the judges concerned to be objectively
justified.
The
re-hearing of the applicant's case on appeal did not cure the problem
because the Court of Appeal did not recognise the procedural
violation and make reparation for it (see De Cubber v. Belgium,
cited above, § 33).
To
complete the picture, I should
add that in the same circumstances a differently composed bench of
the same Court of Appeal accepted that the applicant's co-accused C3
had an objectively justified fear of bias on the part of the
first-instance court. The fact that the Court of Appeal reached a
different conclusion in a case similar to his could reasonably give
rise to feelings of injustice on the part of the applicant.
