COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS THIRD SECTION. CASE OF POPPE v. THE NETHERLANDS. (Application no.

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1 CONSEIL DE L EUROPE COUNCIL OF EUROPE COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS THIRD SECTION CASE OF POPPE v. THE NETHERLANDS (Application no /04) JUDGMENT STRASBOURG 24 March 2009 FINAL 24/06/2009 This judgment may be subject to editorial revision.

3 POPPE v. THE NETHERLANDS JUDGMENT 1 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 1. The case originated in an application (no /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 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. 3. 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. 4. By a decision of 21 October 2008, the Court declared the application admissible. 5. The applicant and the Government both declined to submit further written observations.

4 2 POPPE v. THE NETHERLANDS JUDGMENT THE FACTS I. CIRCUMSTANCES OF THE CASE 6. The applicant, Mr Bart Poppe, is a Netherlands national who was born in 1966 and lives in Amsterdam. A. The first-instance proceedings 7. 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. 8. The applicant s trial was due to start before the Haarlem Regional Court (arrondissementsrechtbank) on 1 March 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 coaccused 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. 9. 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.

5 POPPE v. THE NETHERLANDS JUDGMENT 3 B. The proceedings in appeal 10. 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. 11. 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

6 4 POPPE v. THE NETHERLANDS JUDGMENT 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. 12. The Court of Appeal held a hearing on the merits of the case on 26 November 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. 13. 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. 14. 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 15. 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. 16. 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.

7 POPPE v. THE NETHERLANDS JUDGMENT 5 II. RELEVANT DOMESTIC LAW 17. 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). 18. 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 19. 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 20. 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

8 6 POPPE v. THE NETHERLANDS JUDGMENT 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 coaccused C 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 22. 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 /98, 30, 16 November 2000). 23. 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 /04 and 16855/04, 53, 24 April 2008). 24. As to the subjective test, the applicant did not call into question the personal impartiality of the judges concerned.

9 POPPE v. THE NETHERLANDS JUDGMENT 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). 26. 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 /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 C 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. 28. 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.

10 8 POPPE v. THE NETHERLANDS JUDGMENT 29. 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 /02, ECHR 2005-X (extracts). 30. 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 Deputy Registrar Josep Casadevall 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.

11 POPPE v. THE NETHERLANDS JUDGMENT SEPARATE OPINION 9 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 /04 and 16855/04, 52, 24 April 2008; Micallef v. Malta, no /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 firstinstance 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.

COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS

CONSEIL DE L EUROPE COUNCIL OF EUROPE COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS THIRD SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 21727/08 by Angelique POST against