COUR EUROPÉENNE DES DROITS DE L’HOMME

THE EUROPEAN COURT OF HUMAN RIGHTS

Court reference: 14678/03

B E T W E E N:

Kevin SWEENEY

-v-

The Netherlands

__________________________________________

APPLICANT'S MEMORIAL[1]

__________________________________________

I. THE PARTIES

A. The Applicant

1.	Surname	SWEENEY
2.	First names	Kevin
3.	Nationality	British
4.	Occupation	Publisher
5.	Date of birth	24 July 1950
6.	Permanent address
7.	Telephone number
8.	Present address	De Ijssel, van der Hoopstraat 100, NL-2921 LD Krimpen a.d. IJssel
9.	Name of representative	Sabine Zanker [2]
10.	Occupation of representative	European Lawyer, Fair Trials Abroad
11.	Address of representative	2nd Floor, Tower Building, 11 York Road, London SE1 7NX
12.	Tel. No.	+44 (0) 20 7981 0415
	Fax No.	+44 (0) 20 7981 0416

B. The High Contracting Party

13.

The Netherlands

II. STATEMENT OF THE FACTS

Summary

14.1 This case involves the trial of Kevin Sweeney ("the Applicant"), a British national, in the Netherlands. He was accused of the murder of his wife by setting fire to their home on the night of 16/17 July 1995. He was acquitted at first instance on 24 October 1996, but then convicted on appeal by the Prosecution on 20 February 2001 and sentenced to 13 years' imprisonment. His conviction was upheld by the Supreme Court of the Netherlands on 26 November 2002. The Applicant makes multiple allegations of violations of his rights under Articles 3, 5, 6, 8, 13 and 14 of the European Convention on Human Rights ("the Convention"). The factual background to the case is as follows.

Background

14.2 The Applicant is a British citizen who has lived outside the United Kingdom for many years. Prior to his conviction he was a successful businessman, working as a publisher and information technology consultant. In 1993 his wife died suddenly of a heart attack and he was left with two young daughters. He subsequently met a woman named Suzanne Davies, a single mother with a 2 year old daughter of her own. She and the Applicant began a relationship and were married in November 1994. Ms Davies, prior to meeting the Applicant, had incurred substantial debts and the Applicant assisted in paying most of these off and supported her in a business venture. She also had a history of mental health problems, including anorexia, bulimia, drug addiction, self-harm and a capacity to engage in para-suicidal gestures (dramatic cries for help). Her father, brother and secretary would nevertheless give evidence that she was happy with the Applicant and that he was a very good father to her daughter.

14.3 In the spring of 1995 the couple purchased a home near Eindhoven in the Netherlands. Substantial renovation of the house was needed before the family could move in. They also had a home near Brussels. The Applicant and his wife spent the weekend of 15/16 July 1995 together while a nurse cared for the children at their home south of Brussels. On Sunday 16 July they went to an art market in Amsterdam and bought some artwork for the new house, returning there in the evening. During the evening Ms Davies called her brother, Simon, as he was coming over the next day and during the call told him that she was cleaning the house in advance of his visit and the rest of the family moving in. It was necessary to clean and touch-up what had been left behind by the decorators, the plumbers, the installation of an alarm system and after the moving of furniture into the house. As part of this the Applicant's wife had bought some carpet adhesive and anti-strain treatments for the carpets, from a store named 'Carpetland'. The Applicant left the home in Eindhoven at or before 02:00 on Monday 17 July to drive home to Brussels because one of his children was unwell and in time to have breakfast with the children. Evidence would later confirm that he arrived there at around 04:00.

The alleged offence

14.4 At around 02:10 a neighbour reported seeing a different car to the Applicant's parked in the driveway of his house. Staff and customers in the café beside the house neither saw nor reported any fire until after 02:30. Other witnesses reported seeing men in the garden. At 02:38 the burglar alarm of the house was activated, and the alarm company contacted the police contacted and the keyholder, the couple's cleaning lady who lived opposite them. She and her husband attended at the house with 2 policemen. The house was locked and secure and they could see nothing untoward at the property, meaning that there was no sign of fire at the house

14.5 At 03:41-03:47 a fire was reported at the couple's home. At 03:55 firemen attended and found the house locked and secure from the inside such that they had to affect a forcible entry. They found a large amount of smoke in the master bedroom and an open fire at the foot of the bed. The Applicant's wife was found on the floor. She had a cardiac trace that indicated signs of life. Later attempts to revive her failed and she died at 04:37, as documented by a doctor in attendance at the scene, as a result of the carbon monoxide poisoning she sustained in the fire.

14.6 After his wife's death some of her friends confirmed to the Applicant his suspicions that in the summer of 1995 she had had a drug dependency problem. He discovered that she had very considerable debts. It also transpired that her previous divorce may have been invalid, and there was a suggestion that this might now have been discovered as she had re-married.

14.7 On 4 December 1995 the Applicant was arrested at his home in Belgium by Belgian police under an international warrant issued by the Netherlands. He was charged with fraud, arson and the murder of his wife. He was remanded in custody in Belgium, but was not removed to the Netherlands by the Dutch authorities until March 1996, despite having agreed to go voluntarily from the outset.

14.8 The Applicant was interrogated by police for over 200 hours. The Applicant did not know how his wife had died – whether by accident, by a deliberate act on her part, or as a result of arson by someone else, but he knew that he had not been involved. Accordingly he vigorously denied any involvement in the fraud, arson or the death of his wife, as he continues to do. He gave a full and frank account of his movements to the police and provided an alibi for the time of the fire, namely that he was in Brussels. He provided an explanation as to why his wife had been at the Eindhoven house, and his understanding that she had been engaged in cleaning. He also referred police to the nature and source of the cleaning materials he understood she had been using. The Applicant remained in custody until his trial.

The Applicant's trial

14.9 The Applicant was tried for murder, arson and fraud at the Den Bosch District Court on 10 September and 11 October 1996 He was released from prison on 12 September 1996, at the outset of his trial. It is understood that the Applicant was released in exercise of the court's general discretion to release suspects from pre-trial detention [3], which is utilised when the court considers that a conviction is not very likely. The Applicant returned to the Netherlands for the second day of the trial on 11 October 1996. The evidence was heard over 2 days by a panel of 5 judges on the first day and 3 on the second. The Prosecution case is apparent from the closing speech of the advocate [See "Closing Speech of the Prosecutor" and summary of hand-written notes of the Prosecutor - Appendix 1, Documents 3 and 4]. In summary it was alleged there was a strong smell of turpentine in the room, that turpentine was found on some samples that had been taken from the carpet, that this must have been the cause of the fire, that this must have been deliberate, and that the Applicant must have been responsible for setting the fire.

14.10 On 24 October 1996 the Applicant returned to the court in Den Bosch for the verdict. Although there were grave concerns at the manner in which trial had been conducted (such as that his lawyers had not been able to question many of the Prosecution witnesses before the Examining Magistrate or the court), the Applicant was unanimously acquitted of all charges against him.

14.11 This Court is specifically referred to the judgment of the District Court in Den Bosch [Appendix 1, document 5]. Although this judgment is brief, it is notable when compared to the later judgments in the Applicant's case because it (i) specifically refers to the criminal standard of proof as being beyond reasonable doubt [p.3]; (ii) summarises the Prosecution evidence [pp.1-2]; but then (iii) sets out a cogent list of reasons why it does not find the case against the Applicant proved to the required criminal standard [pp.2-3]. The Applicant maintains that despite the unfair manner in which the pre-trial process had been conducted, the reasoning of the District Court in Den Bosch was lucid, entirely logical, and correct. To the extent that it is relevant, it was also a true verdict as the Applicant maintains his denial of any involvement whatsoever in the death of his wife.

The Prosecution's appeal to the Den Bosch Court of Appeal

14.12 The trial Prosecutor lodged an appeal against the Applicant's acquittal, using as the grounds for the appeal (or "Appelmemorie") the same arguments as those which had been advanced at trial [Appendix 1, document 4].

14.13 On 3 November 1997 the Applicant was summonsed to return to the Court of Appeal in Den Bosch for the hearing of the Prosecution's appeal. He did so. However the prosecuting authorities indicated that they did not wish to proceed with the appeal at that time because they had insufficient or no new evidence and they wished for fire temperature tests to be done. The Presiding Judge referred the matter for further investigation, and gave clear instructions for further specific temperature tests to be done by the Examining Magistrate [see Greffier's notes of hearing (only available in Dutch) on 3 November 1997 – Appendix 1, Document 6].

14.14 The Applicant returned to his home in Belgium. The Applicant heard nothing more about the case him and as time went by assumed that it had lapsed. However some 3 years later, in December 2000, he was again summonsed to return to the Court of Appeal in Den Bosch on 6 February 2001. Since his acquittal extensive forensic tests had been carried out, involving an attempt at reconstructing the room and the fire. These were so different to what had been ordered by the Presiding Judge that they were considered invalid. Furthermore it is understood that the Examining Magistrate was removed from the case, because she had suborned the technicians conducting the tests and been heard to tell them to "make the tests appear to be the same as the photographs of the actual fire". In summary, the tests concluded that if turpentine had been used to start the fire in the house, the sort of fire which would result would be a raging fire with a "flashover". This was entirely unlike the actual fire scene and demonstrated that the fire at the Applicant’s house could not have been arson. The conduct and methodology of these tests would later be rendered highly questionable by other experts, and other evidence.

14.15 It is the Applicant's understanding that on or about 24 January 2001 the President of the Court of Appeal, Mrs Huurman-van Asten, telephoned his lawyer and led him to believe that the Applicant’s acquittal of October 1996 would be upheld. The President indicated, in effect, that there were no significant issues to be heard in the case, and that there was no need for the Defence to insist on the attendance of any witnesses. She also used a German proverb frequently used in the Netherlands – "In der Beschränkung erkennt man den Meister"- denoting that the Applicant’s lawyers may keep their pleadings to a minimum. All these statements by the President were taken by the Applicant and his lawyers as an assurance that his acquittal would be upheld and that he had nothing to worry about.

14.16 The Prosecutor had previously indicated to the Applicant’s lawyers that the fraud charge would no longer be pursued. The appeal in relation to the arson and murder charges was nevertheless considered. After some 19 pages of the defence argument (in a skeleton argument that totalled some 150 pages, including exhibits) the judges stopped the Applicant’s lawyers and adjourned the appeal for around an hour. When the judges returned the Prosecutor advocate made her submissions from the "Requisitoir" [Appendix 1, Document 7] which was substantially different to the Appelmemorie and which had not been provided to the Applicant's lawyers prior to the hearing. This contained a wide range of new facts and allegations to which the Applicant and his lawyers had not had a chance to respond, nor did they get such a chance [4]. Totally unexpectedly, the Applicant was then arrested and remanded in custody.

14.17 On 20 February 2001, at a hearing that lasted for some 15 minutes, the Applicant was convicted of murder and sentenced to 13 years’ imprisonment. No judgment was given on the arson charge [Appendix 1, document 8]. There are very grave concerns as set out below at the manner in which the Applicant's conviction was reached.

The Applicant's appeal to the Supreme Court of the Netherlands

14.18 The Applicant immediately lodged an appeal against his conviction with the Supreme Court of the Netherlands (the "Hoge Raad" or Court of Cassation) [Appendix 1, document 9].

14.19 There was a delay by the Court of Appeal in producing a written judgment of the Applicant's conviction which he needed to accompany his grounds of appeal. This was contrary to Article 434 of the Dutch Criminal Code which stipulates that after a convicted person has lodged an appeal against the judgment of the Court of Appeal, the court documents have to be sent to the Supreme Court as soon as possible. Thus in August/September 2001 the Applicant commenced a hunger strike in order to encourage the judges to produce their written judgment. This was received finally in September 2001, some 7 months after the conviction.

14.20 On 26 November 2002, after several adjournments, the Supreme Court rejected all the grounds of the Applicant’s appeal and upheld his conviction [Appendix 1, document 12]. The court nevertheless reduced his sentence from 13 years to 12 years and 6 months imprisonment.

14.21 The decision of the Supreme Court is the Applicant's final remedy within the Netherlands. Under Dutch Law that court will not re-consider further appeals on the basis that an earlier ruling made by it was erroneous. His complaints were introduced to the European Court of Human Rights by letters from the Applicant dated 6 May 2003, and from his lawyers dated 23 May 2003.

III. STATEMENT OF ALLEGED VIOLATIONS OF THE CONVENTION AND RELEVANT ARGUMENT

A. Summary of alleged violations and relevant domestic law

15.1 The Applicant alleges that the proceedings before the District Court of Den Bosch, the Court of Appeal in Den Bosch and the Supreme Court, together with the conduct of those responsible for managing the prisons where the Applicant has been incarcerated, taken together over a period of 8 years, have violated his rights under the Convention, as follows:

Article 3

(i) He was subjected to inhuman and/or degrading treatment in his police interrogation [see further at paragraphs 15.3-15.9 below];

Article 5

(i) He was not informed promptly, and in a language he understood, of the charges against him [paragraphs 15.11-15.13];

(ii) There was no reasonable suspicion of guilt on which to base the decision to arrest the Applicant [paragraphs 15.14-15.16];

(iii) He was not brought promptly before a court to review his detention and was not provided with sufficient information to challenge his detention adequately or at all [paragraph 15.17-15.19];

(iv) His detention from 6-20 February 2001 was unlawful in that it was contrary to the established domestic law of the Netherlands [paragraph 15.20-15.21];

Article 6

(i) The Applicant was not informed promptly, in a language which he understood and in detail, of the nature and cause of the accusation against him [paragraphs 15.24-15.25];

(ii) The Applicant’s interviews violated his right to silence inherent in Article 6(2) and his right of access to his lawyer under Articles 6(3)(b) and/or (c), and accordingly the use of the content of those interviews against him was in breach of Article 6 [paragraphs 15.26-15.28];

(iii) The Applicant’s rights to legal certainty, and to a hearing within a reasonable time, were violated in the manner in which the prosecution’s appeal against his acquittal was initiated and conducted, and the subsequent delay to proceedings [paragraphs 15.29-15.32];

(iv) Evidence was fabricated against the Applicant [paragraphs 15.33-15.39];

(v) There was substantial non-disclosure to the Applicant in breach of his right to “equality of arms” [paragraphs 15.40-15.46];

(vi) The Applicant’s right to effective interpretation of the proceedings and/or to legal aid to ensure effective participation in them was violated [paragraphs 15.47-15.53];

(vii) The Applicant’s right to challenge the witnesses against him and to have witnesses on his behalf be present, was violated [paragraphs 15.54-15.62];

(viii) The Applicant’s rights to effective participation in his trial and to a public hearing were violated by the manner in which the appeals were conducted, including restrictions and exclusions of his lawyers [paragraphs 15.63-15.67];

(ix) The criminal burden and standard of proof were not adequately applied in the Applicant’s case [paragraphs 15.68-15.69];

(x) The judgments of the Court of Appeal and the Supreme Court were not adequately reasoned and did not address the allegations of violations of Article 6 adequately or at all [paragraphs 15.70-15.80;

(xi) The Applicant did not have access to an independent and impartial tribunal [paragraph 15.81];

(xii) The Applicant has not been provided with adequate facilities for the preparation of his case before this Court [paragraphs 15.82-15.83];

Article 8

(i) The Dutch authorities actions’ restricted the Applicant’s right to contact with his daughters [paragraphs 15.84-15.87];

(ii) The prison authorities have interfered with the Applicant’s legal correspondence [paragraph 15.88].

Article 13

(i) The Applicant was not provided with an effective remedy for the violations of his rights [paragraphs 15.89-15.90];

Article 14

(i) The Applicant was discriminated against in the enjoyment of his Convention rights under Articles 3, 5, 6, 8 and 13 on grounds of his race, birth, language, religion and other opinions and that of his alleged wealth, contrary to Article 14 [paragraphs 15.91-15.96].

15.2 The Applicant and his current lawyers have limited knowledge of the Dutch legal system. However the Applicant at all times relies on the provisions of the Netherlands Constitution (the “Grondwet voor het Koninkrijk der Nederlanden”) Article 94 and 120 of which guarantee the primacy of the Convention above all Parliamentary Acts, Statutes and other legislation and regulations in the Netherlands. In any event, it is the Applicant’s case that such provisions of Netherlands domestic law which would have, if properly applied, protected his rights to a fair trial were not applied and/or were improperly applied in his case, so as to render proceedings against him unfair.

B. Article 3

15.3 Article 3 provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

(i) The Applicant was subjected to inhuman and/or degrading treatment in his police interrogation

15.4 The Applicant was interrogated at great length over a period of several weeks from 18 March 1996 in a highly intrusive and oppressive manner, at all times without his lawyer present, apart from a couple of hours on one occasion. The Examining Magistrate ordered the Dutch police to confine their questioning of the Applicant to relevant matters because it was evident that the police were attempting to oppress the Applicant. The officers nevertheless continued to interrogate him on a wide range of unrelated and oppressive matters for over 200 hours.

15.5 Such questioning was aimed specifically at extracting a confession and/or incriminating evidence from him by breaking his physical and/or mental resistance. The questioning by the officers evidenced racist and discriminatory views towards the Applicant and involved attacks on his race, birth, religion and background. Racism would later feature in the manner in which the authorities leaked information about the Applicant’s case to the press (see further at paragraph 15.91 below). Untrue allegations were also put to him, such as that the police had incriminating evidence against him in relation to the ABN-Amro bank, which they did not.

15.6 Moreover during the 13 or so days the Applicant was in police custody, threats were made to the safety of his mother and daughters (then aged 7 and 4 years). To some extent the concerns these threats engendered in the Applicant, proved justified because his mother and daughters were later interviewed in an oppressive manner, subject to a variety of psychological stresses as a result of the Dutch police.

15.7 The Applicant was intimidated and humiliated by the interrogation to such an extent that he eventually had a mental breakdown. Police videotapes show him breaking down on at least one occasion, after three police officers had been engaged in a personal attack on him, accusing him of being a bad son to his mother, a bad husband and a bad father. Reliance was later placed by the Prosecution on the contents of these interviews, despite the manner in which they had been conducted.

15.8 Accordingly the Applicant contends that the manner of the interrogation to which he was subjected was so psychologically severe as to constitute inhuman and degrading treatment, in that it caused him “intense physical and mental suffering” (the test for inhuman treatment set out in cases such as Campbell and Cosans v UK (1982) 4 EHRR 482 and Aydin v Turkey (1998) 25 EHRR 251).

15.9 Further or alternatively, he was subjected to degrading treatment in that his interrogation was designed to, and did, arouse in him feelings of fear, anguish and inferiority, and the intention of it was to humiliate and debase him in order to break his physical and mental resistance, which it also did (Tyrer v UK (1978) 2 EHRR 1).

C. Article 5

15.10 Article 5, insofar as it is relevant, provides that:

“(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law…

(a) the lawful arrest and detention of a person effected for the purpose of bringing him before a competent legal authority on reasonable suspicion of having committed an offence …

(2) Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

(3) Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”.

(i) The Applicant was not informed promptly, and in a language he understood, of the charges against him

15.11 In Fox, Campbell and Hartley v UK (1991) 13 EHRR 157 the Court interpreted the requirement under Article 5(2) that a suspect be told in a language he understands of the reasons for his arrest and of any charge against him as meaning that he must be told:

“….in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness….” .

15.12 No special form is required for the reasons (X v Netherlands (1966) 9 Yearbook 474 at 480 and X v UK (1974) 14 Yearbook 250 at 276), and they need not be in writing (X v Netherlands (1962) 5 Yearbook 224 at 228 and X v FRG (1978) 16 DR 111 at 113). However, in X v FRG at 114 the Commission reasoned that:

“The arrested person should….be informed sufficiently about the facts and the evidence which are proposed to be the foundation of a decision to detain him. In particular, he should be enabled to state whether he admits or denies the offence”.

Merely informing someone that he or she has been detained pursuant to the provisions of legislation or articles of the Penal Code has been held to be insufficient (Ireland v UK (1979-1980) 2 EHRR 25). Dutch law to some extent reflects these requirements in that to the best of the Applicant’s knowledge, a suspect should be served within 6 hours of arrest with a document showing the date, the place and the article of the offence of which s/he is suspected; within 3 days and 15 hours the suspect has to be brought before the Examining Magistrate and a more detailed charged should be served; and at least 10 days before the actual hearing the suspect should receive a copy of the charge in Dutch.

15.13 These international and domestic standards were not met in the Applicant’s case. He was not told the reasons for his arrest in a language that he understood at the time of his detention on the warrant of the Dutch authorities; nor did this occur at any time before his first court appearance in the Netherlands some months later. Even then, it was not adequately translated for him (see further at paragraphs 15.52-15.57 below).

(ii) There was no reasonable suspicion of guilt on which to base the decision to arrest the Applicant

15.14 Article 5(1)(a) to (f) provides an exhaustive definition of the circumstances in which a person may be lawfully deprived of his liberty and is to be given a narrow construction (Winterwerp v Netherlands, 2 EHRR 387, at § 37). Article 5(1)(c) authorises arrest on reasonable suspicion of having committed a criminal offence. The words “reasonable suspicion” mean the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (Fox, Campbell and Hartley v UK, 13 EHRR 157, at § 32; Murray v UK, 19 EHRR 193).

15.15 The Applicant maintains that even this relatively low threshold was not met in his case. Firstly there was incontrovertible evidence to the effect that the house had been locked from the inside with bolts which could not be operated from the outside. Accordingly there was overwhelming evidence that no crime had in fact occurred – that the Applicant’s wife had died either from a tragic accident, or in a self-induced manner (as to which there was plenty of circumstantial evidence). Secondly, even if there was evidence that a crime had occurred, there was agreed evidence that the Applicant was some distance away, on the way to Brussels, at the time the fire had started. Moreover there was a lack of clear evidence as to any motive the Applicant may have had to murder his wife.

15.16 On this basis, an objective observer would not have been satisfied with the test of “reasonable suspicion” in respect of either the existence of an actual offence and/or the Applicant’s involvement in any such alleged offence. Accordingly there were no reasonable grounds to arrest and detain the Applicant from 4 December 1995, and repeatedly thereafter, for the alleged arson and murder, so that such detention was in violation of Article 5 [5].

(iii) The Applicant was not brought promptly before a court to review his detention and was not provided with sufficient information to challenge his detention adequately or at all

15.17 The Applicant was not brought promptly before a court to review his detention after his arrest and indeed the Dutch authorities delayed his transfer to the Netherlands, and the possibility to review his detention, for a period of over 3 months until after 18 March 1996, despite the fact that the Applicant had agreed to be so transferred. After his arrest on 4 December 1995 he had gone to the Belgian Prosecutor’s office and signed a declaration that he would go to the Netherlands immediately, i.e. without any extradition proceedings. This in normally done within a matter of days. However the Dutch police delayed in arranging for the Applicant’s transfer. He believes this was because without such a transfer they could carry on with the case unsupervised on the basis that under Dutch law an Examining Magistrate need not be appointed until the suspect is in Dutch custody. Finally, in March 1996 the Applicant’s lawyer wrote to the Belgian Prosecutor and said that he either had to be taken to the Netherlands or released and he was duly so transferred.

15.18 The Applicant was not provided with sufficient information about the case against him, in a language he understood, to challenge his detention adequately or at all (contrary to the requirements laid out in Lamy v Belgium (1989) 11 EHRR 529.

15.19 Such hearings as were held to review the Applicant’s detention (in either Belgium or the Netherlands) were not adequate in that they were not interpreted for him adequately or at all and none of the essential documents were translated. Accordingly they could not, and did not, adequately review the circumstances militating for and against his detention, as required by Article 5 (see Schiesser v Switzerland (1979-80) 2 EHRR 417).

(iv) The Applicant’s detention from 6-20 February 2001 was unlawful in that it was contrary to the established domestic law in the Netherlands

15.20 An essential pre-requisite of Article 5 detention is that it is “lawful” in that it is in compliance with the relevant domestic law of the Contracting State. Section 75(2) of the Dutch Code of Criminal Procedure only permits an individual who remains acquitted to be remanded in custody pending the outcome of the Prosecution’s appeal against that acquittal if “serious concerns arise as yet against the accused”. In response to a question raised on this issue in the Dutch Parliament, on 15 May 2003 the Minister of Justice for the Netherlands confirmed that it would be “undesirable” to invoke section 75(2) in the absence of compelling new evidence, such as the discovery of a witness who makes a fresh incriminating statement against the accused [see report at NJB, 3 October 2003 – Appendix 1, Document 13].

15.21 There was no such compelling new evidence in relation to the Applicant at the adjournment of the hearing of the Prosecution’s appeal against his acquittal on 6 February 2001. Indeed his lawyers had been led to believe shortly before that hearing that his acquittal was going to be upheld in a straightforward and brief hearing. Accordingly the Applicant’s detention from 6 February 2001 until his conviction on 20 February 2001 (which then provided the legal basis for this detention) contravened Dutch law.

D. Article 6

15.22 Article 6 provides:

“(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

(2) Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law.

(3) Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court”.

15.23 The case law of the Commission and the Court establishes certain general principles concerning the interpretation of Article 6. Firstly, that the right to a fair trial holds so prominent a place in the democratic society that there can be justification for interpreting Article 6(1) of the Convention restrictively, so it is to be given a broad and purposive interpretation (Moreia de Azevedo v Portugal 23 October 1990 Series A, No. 189, § 66; Delcourt v Belgium, 1 EHRR 355) Secondly, that the minimum guarantees for criminal defendants set out in paragraphs (3)(a) to (e) of Article 6 are specific aspects of the right to a fair trial enshrined in paragraph (1) and are not exhaustive (Artico v Italy 1990, Series A, No. 37, 3 EHRR 1, § 32; T v Italy 1992 Series A, No. 245-C, § 25; Edwards v UK (1993) 15 EHRR 417 at § 33). Therefore:

“....The relationship between paragraphs 1 and 3 of Article 6 of the Convention is that of the general to the particular....A trial could well not fulfil the general conditions of a fair trial even if the minimum rights guaranteed by Article 3 were respected....”(Jespers v Belgium Application 8403/78, (1981) 27 DR 61 Op Comm., § 54)

Thirdly, that the proceedings as a whole, including the appellate proceedings, must be considered in determining whether they were fair as required by Article 6(1) (Barbera, Messegue and Tabardo v Spain December 1988, Series A, No. 146, § 68). Accordingly, it is appropriate for the Court to consider the Applicant’s complaints under Article 6(3) together with his complaints under Article 6(1), and to look at proceedings as a whole, in assessing their overall fairness (Windisch v Austria (1990), Series A, No. 186, 13 EHRR 281, §§ 23 and 25; Edwards v UK (1993) 15 EHRR 417 and Dowsett v UK (Appl. No. 39482/98, 24/6/03).

(i) The Applicant was not informed promptly, in a language which he understood and in detail, of the nature and cause of the accusation against him

15.24 As is made clear at paragraphs 15.11-15.13 above the Applicant was not at the time of his arrest and immediately thereafter informed promptly, and in a language he understood, of the charges against him, contrary to Article 5(3). If in fact such detail was given at the Applicant’s first court appearance in early 1996, this was not translated for him (see further at paragraphs 15.52-15.57 below).

15.25 In fact the Applicant was not informed of the detailed nature of the case against him until the Prosecutor’s Requisitoir (closing speech) at the end of the trial in October 1996, over 10 months after his arrest. Even then it was not translated for him. This was therefore a contravention of the Article 6(3)(a) requirement that he be informed in detail of the nature and cause of the accusation against him promptly.

15.26 The right to a fair trial includes “the right of anyone charged with a criminal offence … to remain silent and not to contribute to incriminating himself” (Funke v France, 16 EHRR 297). In Saunders v UK, 23 EHRR 313, the Court considered that the admission in evidence at the applicant’s trial of transcripts of interviews with government inspectors violated Article 6(1). The court described the right to silence and the right not to incriminate oneself as generally recognised international standards which lay at the heart of the notion of a fair procedure under Article 6. The latter right presupposed that the prosecution in a criminal case must prove its case without resort to evidence obtained through methods of coercion and oppression in defiance of the will of the accused. In this sense the privilege against self-incrimination was “closely linked” to the presumption of innocence in Article 6(2).

15.27 For the reasons set out at paragraphs 15.4-15.9 above the interrogation of the Applicant was in contravention of Article 3, and designed to break his will so that he made incriminating statements. The Applicant was then pressurised into signing some 25 of these statements. He refused to do so but they were nevertheless used in evidence against him at trial, and despite being unsigned, were accepted in evidence by the judges. Moreover this was in breach of a prior agreement the Applicant had with the first Examining Magistrate (Mr Roterdink) that the interviews would be translated into English for him to read and then sign. This was contrary to Article 6(1) as the admission of evidence obtained as a result of deception and maltreatment with the aim of extracting a confession will inevitably violate Article 6 (Austria v Italy, 6 YB 740 at 784) .

15.28 Moreover the Applicant was denied access to a lawyer for all of the interviews apart from one brief period of time. This was a clear violation of the Applicant’s well-established right of access to a lawyer under Article 6(3)(c) and/or 6(3)(b) (as part of the necessary “facilities” for the preparation of his defence) (see, for example, Murray v UK (1996) 22 EHRR 29). Moreover it appears that Dutch law never permits defence lawyers to be present at police interrogations [6].

15.29 Article 6(1) guarantees a trial within a “reasonable time”. This provision is designed to prevent a person charged from remaining “too long in a state of uncertainty about his fate” (Stögmüller v Austria, 1 EHRR 155, at § 5). It is therefore directed primarily towards excessive procedural delays in the conduct of a Prosecution, including any appeal. The reasonable time guarantee runs from the moment that an individual is subject to a “charge” within the meaning of the Convention [7], and continues until the conclusion of any appeal (Eckle v Germany, ante, and also, Neumeister v Austria, 1 EHRR 91, at § 19). The state is responsible for delays attributable to the Prosecution or the court (Orchin v UK, 6 EHRR 391; Eckle v Germany). Neither the workload of the court, nor a shortage of resources, is a sufficient justification for delay in a trial. The Convention places a duty on contracting parties, regardless of cost, “to organise their legal systems so as to allow the courts to comply with the requirements of Article 6(1)” (Zimmerman and Steiner v Switzerland, 6 EHRR 17). The factors which are relevant to whether there has been a trial within a reasonable time are the complexity of the case, the conduct of the competent authorities, the conduct of the Applicant and the importance of what was at stake for the Applicant (Bunkate v The Netherlands (1995) 19 EHRR 477 at para 25; Royer v Austria Appl. No. 42484/98, 12/6/2003; Mellors v UK Appl. No. 57836/00, 17/7/2003).

15.30 Having been released from custody and acquitted in September/October 1996, the Prosecution had the Applicant summonsed to the Court of Appeal in November 1997 before indicating that they were not in a position to proceed with the appeal. Accordingly he was free to return home again and as time passed assumed that his case was over and that his acquittal would stand. It was not until some 3 years later that he was summonsed back to the Court of Appeal, in February 2001, for the hearing of the Prosecution’s appeal.

15.31 It is submitted that it is contrary to a Defendant’s right to assume that his acquittal is final, and to legal certainty therein, to wait such a long period of time before summonsing him to court for the potential (and in the Applicant’s case, actual) overturning of that acquittal. It is especially odious for the State to do so when it is apparent that the intervening period has been used deliberately to make additional allegations and fabricate or suppress evidence against the suspect as the Applicant alleges occurred in his case. Moreover the delay in initiating the Prosecution appeal meant that proceedings against the Applicant lasted some 7 years, an excessive period of time when considered against the principles set out at paragraph 15.27 above, especially given the gravity of the charge and what was at stake for the Applicant. As to this it is notable that the Court of Appeal concluded that his right to a trial within a reasonable time had indeed been breached [Appendix 1, Document 8, at para. I, p.3].

15.32 Accordingly the Applicant’s rights to certainty and a hearing within a reasonable time under Article 6 were violated.

(iv) Evidence was fabricated against the Applicant

15.33 The officers involved in investigating the Applicant contacted some 100 contacts of his – business colleagues, banks and colleagues – and obtained no incriminating evidence against him. It is his case that given the lack of other evidence available, officers set about fabricating evidence against him and suppressing evidence in his favour. This included:

(a) Evidence of the presence of a crude oil distillate on the carpet in the bedroom, and evidence from the fire reconstruction, was fabricated

15.34 The prosecution alleged that a “crude oil distillate” was found on some carpet samples taken in the bedroom of the house immediately after the incident. In 2001 photographs were made available showing the room cleared and swept and the carpet intact, so that it became apparent that the carpet samples on which the crude oil distillate evidence was based had not been taken directly after the fire as stated by the police in their written statement/s, thereby this evidence was tainted. Further, for the reasons set out at paragraph 14.14 above, the Applicant’s case is that the fire reconstruction tests were deliberately manipulated.

(b) Witnessed were pressured to give evidence and/or their evidence was corrupted so as to incriminate the Applicant

15.35 The police blackmailed and coerced witnesses in order to obtain false and deceptive witness statements against the Applicant. These witnesses included:

(i) “LM”– the deceased’s best friend and secretary in Belgium, who was interrogated for 3 days by police and told that she would be reported for alleged non-payment of taxes if she did not incriminate the Applicant. As a result LM was pressured into giving evidence that the Applicant and his wife had financial problems. She later wrote a letter to the accepting that this did not actually appear to be the case (the Applicant had no outstanding tax, debt or borrowings and at that time had cash in the bank);

(ii) “JS”– the Applicant’s housekeeper, who was interrogated for a day, and similarly threatened that she would be reported for non-payment of taxes unless she incriminated him;

(iii) Tricia McDaid (a.k.a. Trish or Patricia or Bernadette) – the nurse caring for the Applicant’s children at the Brussels house, who stated that she was contacted 90 times over a 3 month period (ie. Once a day) and intimidated into giving a statement that would incriminate the Applicant. She did in fact give evidence that she had not known the Applicant’s wife to exhibit suicidal tendencies (despite having only met her briefly) and that the Applicant was seen loading items into his car in a hurry (which was used as key evidence against him). She later admitted that essential parts her statement were not accurate, for example, that it was impossible for her to have observed the Applicant loading items into his car as the configuration of the house/parking area made this physically impossible. She admitted that many other allegations were false;

(iv) Simon Davies - the deceased’s brother, who was alleged to have embezzled as much as £80,000 from her company, as well as £200,000 worth of bearer bonds from her. Initially his evidence was that his sister had told him she was cleaning the house the night she died, and that she had previously contemplated suicide. He was visited by a lawyer financed by the police the night before he gave his evidence (10 September 1996) and it is believed he was offered immunity from prosecution for these frauds in return for changing his evidence, which he later did, to the effect that she had not seemed depressed the night he spoke to her;

(v) Thomas Davies– the deceased’s father, who was also visited by the police lawyer the same night, and who, when asked by the judge in open court, refused to give evidence in court; and

(vi) Christine Rowley – who the Applicant had employed as a nanny to his children some 2 years previously, who was approached by the prosecution after the Applicant’s acquittal, in an effort to strengthen the case against him, and who also stated that the evidence she had given had not been accurately recorded.

15.36 This coercion of witness evidence is confirmed by tape recorded and written evidence; evidence from an independent advocate (a Belgian Court of Appeal lawyer); a dossier from the British Crown Prosecution Service (which referred to similar coercion in relation to witnesses in the UK) and correspondence from the Police Complaints Authority and the Home Office in the UK. Indeed the majority of the Prosecution witnesses who made statements to the police later stated that they were not allowed to read the statements before they were told to sign them.

(c ) Untrue evidence was knowingly tendered as the Applicant’s alleged computer “hacking” activities

15.37 Dutch officers repeatedly alleged that the Applicant had ‘hacked’ into the police computer in Eindhoven and that of Dun and Bradstreet, a credit rating company, in London in order to give his wife a good credit rating so that she could obtain a mortgage. The officers knew that the first allegation was untrue because a specialist branch of the Dutch government investigated it and found it to be so. This report was suppressed and withheld from the defence. Moreover had the officers investigated the Dun and Bradstreet allegation they would have discovered that that was also untrue, as this company does not keep credit ratings for individuals. At each stage until September 1996 the officers nevertheless maintained these malicious and incriminating allegations against the Applicant

15.38 These allegations of fabrication of evidence by the Dutch police were mirrored by the fact that they also lied about the nature of the evidence they did have – incorrectly putting to the Applicant in interview the ABN-Amro allegation (see paragraph 15.4 above) and stating that they had not made contact with solicitors in the United Kingdom when court production orders in relation to solicitors there later confirmed that they had done. The fabrication of evidence was in breach of Article 6.

(v) There was substantial non-disclosure to the Applicant in breach of his right to “equality of arms”

15.39 It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be “equality of arms” between the Prosecution and defence. The right to an adversarial trial means, in a criminal case, that both Prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party (Brandstetter v Austria, 28 August 1991, Series A, No 211, pp27-28 §§ 66-67). It also means that each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage to his opponent (Bulut v Austria 22 February 1996, 24 EHRR 85, § 47).

15.40 The Commission and Court have also read an explicit right to disclosure in criminal proceedings into the fair trial guarantees under Article 6(1) and the more specific requirement under Article 6(3)(b) that everyone charged with a criminal offence “have adequate time and facilities for the preparation of his defence”. More specifically, in Jespers, the Commission noted the considerable resources and powers available to the investigating and prosecuting authorities, and took the view that equality of arms could be achieved in criminal proceedings only if the authorities were under a duty to “gather evidence in favour of the accused as well as evidence against him” and to ensure that the defence had access to relevant material before trial. In particular, the Commission emphasised that the “facilities” which everyone charged with a criminal offence should enjoy under Article 6(3)(b) included:

“… the opportunity to acquaint himself, for the purposes of preparing his defence, with the results of investigations carried out throughout the proceedings”.

15.41 For the Commission this right was to be applied broadly. It mattered little by whom, and when, investigations had been ordered or under whose authority they were carried out. Further, the duty to permit a defendant to have access to the results of investigations applied at all stages, not just in relation to preliminary investigations. The Commission in Jespers insisted that the accused must be provided with facilities “which assist or may assist him in his defence”, despite the qualification of the word “facilities” in Article 6(3)(b) by the word “adequate”. This means that a defendant must:

“… have at his disposal, for the purposes of exonerating himself or of obtaining a reduction in his sentence, all relevant elements that have been or could be collected by the competent authorities”.

15.42 If the “element” in question is a document, access to that document is a necessary “facility” if “it concerns acts of which the defendant is accused, the credibility of testimony etc”. And, in the Commission’s view, where the accused had been given no access at all to the documents in question, it was unrealistic, and unfair, to expect him to specify which documents he wished to see.

15.43 The Commission’s starting-point was adopted by the European Court in Edwards v UK (1993) 15 EHRR 417. In that case, the applicant complained that Article 6(3)(b) had been violated because of the failure of the police at his trial to disclose (a) the fact that one of the victims, who had made a statement that she thought she would be able to recognise her assailant had failed to identify the applicant from a police photograph album, and (b) the existence of fingerprints which had been found at the scene of the crime. Recognising that the guarantee of adequate facilities in Article 6(3)(b) is a specific aspect of the wider right to a fair trial under Article 6(1), the Court held that:

“… it is a requirement of fairness under Article 6(1) … that the Prosecution authorities disclosure to the defence all material evidence for or against the accused and that the failure to do so in the present case gave rise to a defect in the trial proceedings…”.

Accordingly the disclosure principle extends to material which might undermine the credibility of a Prosecution witness.

15.44 Article 6(3)(b) guarantees the right to adequate time and facilities for the preparation of the defence. The requirement to afford adequate facilities for the preparation of the defence creates more than a negative obligation to refrain from interference. There is a positive obligation on the state to adopt appropriate measures to place the defence in a position of parity with the Prosecution (Patanki and Dunshirn v Austria (1963) 6 YB 714; Jespers v Belgium, 27 DR 61).

15.45 In the Applicant’s case these principles were violated in that in addition to the fabrication of evidence set out at paragraphs 15.33-15.39 above, the police, Prosecutor and Examining Magistrate/s suppressed much evidence, including the following:

(i) Swabs from the deceased’s hands that showed she had indeed been cleaning with specific fluids;

(ii) Swabs from her skin, feet, nose cavity, hair etc, which showed that there was no turpentine present on the floor or elsewhere in the room or the fire;

(iii) Evidence from the United Kingdom that there was no internal trace of any fire accelerants in the Applicant’s wife’s body, blood or internal organs;

(iv) Evidence from electrical fittings/connectors, circuit or spotlight faults that may have been the cause of the fire;

(v) The fact that curtain tracks/curtains, furnishings and fittings, items of paper, clothes, plastic, etc which would also have burned if the fire had included (as alleged by the prosecution) a “flashover” had not done so;

(vi) Information which may have undermined the credibility of the Prosecution witnesses, such as in relation to any offer of immunity to Simon Davies [8] , or the existence of the Dutch government investigation which exonerated the Applicant of any “hacking” allegations, or that the police had themselves fabricated evidence in their statements;

(vii) Information relevant to the time of death, including a graph showing that carbon monoxide poisoning is fatal within 10-20 minutes, which was inconsistent with the evidence that the Applicant’s wife still had a cardiac trace 90 minutes after the prosecution’s alleged time of the fire;

(viii) The names and addresses of the witnesses nearby at the time who had not reported seeing a fire, this being inconsistent with the Prosecution forensic evidence that there was a “raging” “flashover” fire;

(ix) The results of a Danish Interpol investigation with the Applicant’s first wife in which she gave positive character evidence about him;

There are very many other examples of the fabrication and suppression of evidence by the prosecution officers.

15.46 In the absence of this disclosure, the Applicant was severely hampered in how far he could challenge the Prosecution case. The court further violated Article 6(1) in not seeking to challenge any of this evidence itself, in seeking to cover-up the corruption of the Prosecution officers, in seeking to hide these matters from public scrutiny and in allowing the appeal against the acquittal to proceed based on these grounds.

(vi) The Applicant’s right to effective interpretation of the proceedings and/or to legal aid to ensure effective participation in them, was violated

15.47 Article 6(3)(e) gives a specific right to a Defendant to the free assistance of an interpreter if he cannot understand or speak the language used in court. The object of this provision is to prevent any inequality between a Defendant who is familiar with the language used in court and a Defendant who does speak and understand the language. The European Court has accepted that, in principle, Article 6(3)(e) applies at an early stage and provides a basis for seeking translation of Prosecution material. In Brazicek v Italy (1990) 12 EHRR 371 the Court held that documents constituting an accusation should be provided in a language which an accused person understands. In Luedicke, Belkasam and Koç (1979-80) 2 EHRR 149 the Court extended this principle to cover:

“…those documents or statements in the proceedings… which it is necessary for [the accused] to understand in order to have the benefit of a fair trial…”

15.48 Such assistance could also be categorised as ensuring equality of arms for the defence. The right to participate effectively in a trial is a broad right extending beyond mere presence of an interpreter and includes the right to hear and follow the proceedings (Ekbatani v Sweden, 13 EHRR 504, at § 25; Stanford v UK (1994) Series A/282-A). The combined effect of these principles is that a foreign national must have effective interpretation available to him so as to participate effectively in the proceedings. The Applicant understands that under Dutch law it is the duty of the court judge to make sure that a Defendant receives legal aid, if needed; and that legal aid should be made available to a Defendant in pre-trial detention (Article 41 of the Criminal Code).

15.49 The Applicant does not understand Dutch and could not have followed proceedings effectively in Dutch. Accordingly he was entitled to expect that the Respondent state would make adequate provision for proceedings and the key documentation to be interpreted and/or translated for him.

15.50 They did not. The hearings were not interpreted for him adequately or, on some occasions, at all. Such live evidence as there was at his trial was not adequately translated for him. Only those parts of the case which directly involved him, namely when questions were put to him, were translated for him, albeit inadequately and hurriedly. The interpreter was frequently unable to provide a sufficient translation of the proceedings in the court and during questioning by the Judges they did not wait for the Applicant to receive an adequate translation or for the Applicant’s reply in response.

15.51 Moreover, none of the documents used as evidence against him at any of the trials between 1996 and 2002 were translated for him, contrary to these principles. The Applicant did not have the benefit of Legal Aid for his first trial and the Court of Appeal hearings in 1997 and 2001 and had insufficient private funds to pay for the translations to be made. At no stage did any of the judges take action to ensure that the Applicant had sufficient funds to pay for the translation of the documents; nor was he afforded legal aid when he was in pre-trial custody, as Dutch law required. His lawyer at the Court of Appeal stage acted on a pro bono/conditional fee basis as he felt confident that the Applicant would defeat the Prosecution’s appeal (which if course he did not). At one stage the Dutch authorities refused to send him Legal Aid forms because he was residing in the Netherlands although the Applicant understands that this is an irrelevant consideration under Dutch law. Requests that have been made by his lawyers since the dismissal of his appeal by the Supreme Court for translations of the key documents in his case in order to prepare this application have been refused by the authorities.

15.52 According to a letter from the Supreme Court dated 25 June 2003 [Appendix 1, Document 14] the Court only issues judgments in Dutch and expects the parties to make arrangements for the interpretation of them. The same principle appears to apply to all court proceedings and to all court documents other than judgments. Accordingly the Respondent State does not appear to make provision for the written translation of court documents even for those, like the Applicant, whose first language is not Dutch and who cannot afford to have the translations carried out privately. It relies on the presence of an interpreter with the Defendant at hearings, visits by lawyers etc, which would not assist the Defendant in considering documents at any length on their own and which is therefore inadequate provision. Moreover as is explained at paragraph 15.50 above the services of the interpreter during the Applicant’s court hearings were inadequate and/or the judges did not afford the interpreter sufficient time to translate for the Applicant fully [9].

15.53 Accordingly the Applicant’s right to effective interpretation of the proceedings and documentation in his case and/or to legal aid to ensure effective participation in the proceedings was violated.

(vii) The Applicant’s right to challenge the witnesses against him, and to have witnesses on his behalf be present, was violated

15.54 Article 6(3)(d) guarantees the Applicant the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. From this the Strasbourg bodies have derived a number of general principles, including that all the evidence should be produced in the presence of the accused, the hearing of witnesses should be adversarial and the accused should be given an adequate and proper opportunity to challenge and question a witness against him/her, either at the time the witness was making a statement or at some later stage of the proceedings (Barbera, Messegue and Jabardo December 1988, Series A, No. 146, at § 78; Kostovski v Netherlands 12 EHRR 434 at § 41). The right to cross-examine appropriate witnesses also helps to ensure equality of arms between the prosecution and defence.

15.55 The term “witness” in Article 6(3)(d) includes a person whose statements are produced in evidence before a court, but who is not called to give oral evidence (Kostovski at §§ 40-41). Article 6(3)(d) gives the accused the right to have such a witness called to give oral evidence, and subjected to cross-examination. In the absence of an opportunity to cross-examine, the admission of disputed hearsay is prima facie inconsistent with the requirements of Article 6(3)(d). Where the hearsay evidence is disputed and is important to the context of the proceedings as a whole then live oral cross-examination is necessary.

15.56 Although nothing in Article 6(3)(d) – or the general principles referred to above – prevents a court from relying on hearsay evidence, where hearsay evidence is admitted, there must be counterbalancing factors which preserve the rights of the defence. In practice, this means that the Strasbourg bodies will balance the reasons advanced by the authorities for relying on hearsay evidence against the inevitable infringement of the right of the accused to challenge and question all the witnesses against him/her. Relevant factors in this balancing exercise include the opportunities (if any) afforded to the defence to challenge the evidence in question prior to trial, whether the defence requested the attendance of the witness in question and the impact of the evidence on the trial. In Van Mechelen and Others v Netherlands (1998) 25 EHRR 647 at § 58 which concerned hearsay evidence given by anonymous police officers, the European Court set out a further general principle:

“Having regard to the place that the right to a fair administration of justice holds in a democratic society, any measures restricting the rights of the defence should be strictly necessary. If a less restrictive measure can suffice then that measure should be applied…”.

Although the context is always important, as a general rule, any conviction based solely or mainly on hearsay evidence is likely to violate Article 6(3)(d) (Unterpertinger v Austria, 13 EHRR 175).

15.57 It is clear that the hearing of the Prosecution’s appeal before the Court of Appeal in February 2001 was absolutely crucial for the Applicant. He had been charged with the murder of his wife, and acquitted by the trial court some 4 years previously. Under Dutch law, the hearing was the actual re-trial of the case against him, and not simply a hearing to overturn the acquittal (and then refer back to a fresh trial court). On 3 November 1997 the Applicant had specifically indicated which witnesses he wanted called to give evidence at the appeal, and his lawyer had made similar requests [see statement of the Applicant, and Schedule of Witnesses Called for Cross Examination – Appendix 1, Documents 1 and 2]. Despite that, those witnesses were not called to give evidence before the Court of Appeal. No reason was advanced for not making these witnesses available for questioning other than a suggestion from Mr Albers’ psychiatrist that he was ill and therefore unable to attend.

15.58 Moreover, the evidence of the forensic and medical experts which had been gathered between the original acquittal and the resumed appeal hearing in 2001 – that of Mr Reiman, Mr Postema and Dr Klasen – was also adduced as hearsay before the Court of Appeal despite the indications of the Applicant’s lawyers that they wished to cross-examine them. The evidence of these witnesses was absolutely crucial in that each would give forensic evidence as to the likely cause of the fire. No reason was advanced for not making these witnesses available for questioning.

15.59 Moreover, the Applicant’s lawyer had been specifically led to believe as a result of the call from the President of the Court of Appeal on or around 24 January 2001 that it was not necessary to call witnesses and so even those experts who assisted the defence case, Professor Barnett and J Bijl were not present at court.

15.60 The acceptance of this hearsay evidence was particularly damaging given that it had not been challenged by questioning by the defence at original trial (either before the Examining Magistrate or at trial).

15.61 It appears that although there has been some impact of the Convention on procedure within the Respondent State, the questioning of witnesses in the Respondent State is still very limited. At the pre-trial stage, it is for the public prosecutor to decide whether to ask the examining judge to conduct a judicial preliminary investigation, and that this may include ordering witnesses to appear to give their evidence live. The test for doing so is whether the interests of the defence would otherwise be harmed. At that stage the Defence advocated is permitted to put written questions. However …only in a limited number of cases that come to trial a judicial preliminary investigation has taken place…”. At trial, it is possible for the prosecutor and defence counsel to ask questions of each other’s witnesses but:

“…cross-examination…is unknown under Dutch law..[and] witnesses are as a rule, not questioned, since the Supreme Court accepts hearsay evidence. In fact criminal court sessions to a large extent deal with written statements of witnesses filed by the police or the examining judge. Their written statements may be used as evidence provided that they have been discussed in court. This restriction of the immediacy principle [obliging witnesses to be questioned in court] has as effect that court trials do not take very long if the accused confesses and does not contradict the written statements of the witnesses. It is rare that a trial lasts more than a couple of hours, even in serious cases…” (see Tak, ibid. at paras. 6.4, 6.12 and 6.18 – Appendix 1, Document 15].

However in serious cases, and where the accused does not confess, as here, it appears that questioning of live witnesses is still very limited. It was a gross violation of the Applicant’s Article 6 rights to be convicted of murder, on hearsay Prosecution evidence, and without hearing Defence evidence, at such a brief and ineffective hearing.

15.62 Accordingly the acceptance by the court of this crucial evidence in the absence of the Applicant being able to challenge it effectively or at all, or to make representations as to why the witnesses should not be relied on as “read”, was a further breach of Article 6(1) and Article (3)(d).

15.63 As is indicated at paragraph 14.15 above shortly before the listing of the Prosecution’s appeal against the Applicant’s acquittal his lawyer was contacted by the President of the Court of Appeal and given clear indications that his acquittal would be upheld and that, for example, there was no need to call witnesses for questioning. Moreover as is explained at paragraph 14.16 above when the hearing did take place on 6 February 2001, the Applicant’s lawyers were stopped almost immediately after they commenced their pleadings and the hearing adjourned for around an hour. The Applicant’s lawyers took this as an indication that his acquittal was going to be upheld. In fact when the case resumed the Prosecution produced their Requisitoir which substantially re-wrote their grounds of appeal [Appendix 1, document 7] and introduced entirely new allegations and issues of fact, which the Applicant understands is itself a breach of Dutch domestic law.

15.64 Yet despite the brevity of the hearing (3-4 hours, including the 1 hour adjournment), the fact that the Applicant’s lawyers had not been fully able to present their case, the fact that they had been specifically led into not calling witnesses and had been denied the chance to question the Prosecution witnesses, the fact that the Court had refused to play the Prosecution video evidence as requested by the Applicant’s lawyers, and the fact that the Prosecution were permitted to adduce entirely new facts and evidence in the Requisitoir from those set out in their Appelmemorie, to which the Applicant’s lawyers had not had the chance to respond, on 20 February 2001 the Applicant was convicted of murder and sentenced to 13 years’ imprisonment. Moreover the Court of Appeal breached Dutch law by, of its own motion, substantially re-interpreting the Indictment in a manner not contended for by the Prosecution [10].

15.65 There is a strong suspicion that in fact there had been secret hearings between the Prosecution and the judges involved from which the Applicant’s lawyers were excluded. If indeed that occurred it would be a grave violation of the Applicant’s right to a public hearing under Article 6(1) [11]. In any event the hearing of the Prosecution’s appeal in the manner set out above, which had the effect of convicting the Applicant of a very serious charge, fell far short of the standards expected by Article 6. There could not be said to have been equality of arms or effective participation of his lawyers on his behalf. This was a gross manipulation of the Applicant’s Article 6 rights.

15.66 Article 6 provide that where domestic law affords the right to an appeal against conviction or sentence, whether on grounds of fact or law, the appeal proceedings will be treated as an “extension of the trial process” and accordingly will be subject to Article 6 (Delcourt v Belgium, 1 EHRR 355, at § 25; Edwards v UK, 15 EHRR 417, at § 34). This has been held to include the hearing of a renewed application for leave to appeal (Monnell and Morris v UK, 10 EHRR 205; Callaghan v UK, 60 DR 296). In general, where an appeal involves an assessment of disputed questions of fact, the requirement of fairness are more akin to those of a criminal trial (Ekbatani v Sweden, 13 EHRR 504; Andersson v Sweden, 15 EHRR 218; Helmers v Sweden, 15 EHRR 285; Edwards v UK). It is apparent that the nature of the appeal in the Applicant’s case itself these standards of fairness and was itself a violation of Article 6. It could not be said to have ‘cured’ any previous such defects at the pre-trial stage (as occurred in cases such as Edwards v UK (1993) 15 EHRR 417 and Bendemoun v France, 18 EHRR 54) as this was in fact the stage at which the Applicant was convicted.

15.67 In the Court of Cassation, the judges considered or adduced facts that were not in the Court of Appeal judgment and that were presented by the Prosecutor Jörg and/or that they themselves had extracted from the statements in the court files. The Applicant’s lawyer were therefore rendered ineffective because the judges considered these questions of Fact, but prevented the Applicant and his lawyers from presenting the defence response to the clearly incorrect opinions the judges reached on the matters of fact thus considered. The fact that the no oral hearing was granted to allow the Applicant to comment on these new previously unconsidered or untested allegations/facts adduced by the prosecutor and/or the court itself, was a breach of the Applicant’s Article 6 rights. The Supreme Court decision upheld that of the lower appeal court, and so similarly did not cure the breaches of Article 6 which had occurred previously.

(ix) The criminal burden and standard of proof were not adequately applied in the Applicant’s case

15.68 Article 6(2) of the Convention guarantees the right to everyone charged with a criminal offence to be “presumed innocent until proven guilty according to law”. It flows from this that the burden of proof in criminal proceedings is on the Prosecution (Austria v Italy (1963) 6 Yearbook 740 at p.782; Lingens and Leitgens v Austria, 4 EHRR 373, at § 4; Barbera, Messegue and Jabardo v Spain (1989) 11 EHRR 360 at § 77). As to the standard of proof, the Commission stated in Austria v Italy that the presumption of innocence in Article 6(2) requires that:

“….the onus to prove guilt falls on the Prosecution and any doubt is to the benefit of the accused….In their judgment, [the judges] can find him guilty only on the basis of the direct and indirect evidence sufficiently strong in the eyes of the law to establish his guilt” .

In Barbera, Messegue and Tabardo v Spain December 1988, Series A, No. 146, § 68 the Court further endorsed the rule that “any doubt should benefit the accused”.

15.69 In contravention of this well-established principle the Applicant was called to give his live evidence first in his trial (as appears usual under Dutch law [12]) and his lawyers made their submissions first at both the trial and the Prosecution appeal. He was therefore effectively called on to establish his defence before any Prosecution case against him was advanced. Moreover, the judgments of the Court of Appeal and the Supreme Court [Appendix 1, documents 8 and 12] strongly suggest that the judges were applying something akin to a balance of probabilities test – ie. Looking to the Applicant for an explanation of the charge, and then deciding what was more likely than not to have occurred – rather than the stringent standard and burden of proof required in criminal cases, to which the Courts do not refer.

(x) The judgments of the Court of Appeal and the Supreme Court were not adequately reasoned and did not address the allegations of violations of Article 6 adequately or at all

15.70 Although Article 6 does not oblige a judge to give a detailed answer to every argument of the defence, it does require court judgments to be adequately reasoned. A lower court of authority must give such reasons as to enable parties to make effective use of any existing right to appeal. When dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s decision. Where a judgment of an appellate court, however, leaves a party with a certain sense of confusion, the reasoning could be considered to be inadequate (ECHR 27 September 2001, Hirvisaari v Finland, Appl. No. 00049684/99, 27/9/2001).

15.71 The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see, for example, Van de Hurk v The Netherlands, 19 April 1994 Series A, No. 288, § 61 and Higgins v France (1988) 27 EHRR 703. This case involved an appeal against the acquittal of the Applicant for murder. It is hard to imagine of a graver scenario for the individual concerned, and it is therefore submitted that the very highest level of judicial reasoning was required. Moreover the Applicant’s case was unique in that it was the first in Dutch history in which the cause of fire was apparently extensively investigated. Detailed judicial reasoning was therefore required in assessing the conflicting evidence on this central issue.

15.72 Dutch law contains similar provisions. Articles 358 and 359 Code of Penal Procedure (“Wetboek van Strafvordering”) require that any judgment be adequately reasoned. Although Article 81 of the Code of Judicial Organisation (“Wet op de Rechterlijke Organisatie”) permits the Supreme Court not to give reasons for its judgment, this is limited to cases where a complaint does not raise a legal issue that is important to respond to in relation to the legal equality or the development of law. It does not apply to cases such as this, which raise serious disputes of fact, and especially those cases where such issues of fact could have potentially very grave consequences for the Defendant. Moreover the Applicant understands that the Supreme Court will rarely invoke Article 81 without a specific request to do so from the Attorney-General which was not made in this case

15.73 At the hearing of the appeal in February 2001, the Applicant’s lawyer produced pleadings in writing of more that 100 pages. These pleadings extensively criticised the investigation of the police and argued that due to the way the investigation was carried out, there could be no fair trial. The Applicant specifically sought to rely on his Article 6 rights. In summary it was alleged that:

(i) Not all relevant material had been disclosed to the defence by the Prosecution;

(ii) The investigation of the police was concentrated to only 2 phases, whereas a diligent fire investigation consists of 6 phases;

(iii) Experts concluded that the investigation of the police was too superficial and that the police did not pay attention to the identification value and reconstruction value of the (carpet) samples taken;

(iv) The police withheld information, such as by not mentioning contamination risks;

(v) The tests carried out by the police (the ‘TNO’ tests) were not correct as to the question whether smoking in bed could be the cause of the fire and, furthermore, it took some 13 months to disclose to the defence that the tests of the Government Forensic Laboratory proved it was possible (using the original remnants of the bed clothes found at the scene) to cause fire by a cigarette;

(vi) The police hardly investigated the necessity of cleaning the house which the family had moved into, and withheld relevant information on this issue (such as the receipts for the purchase of the materials, and a list and diary entry made by the Applicant referring to the cleaning work she was going to do), whereas an investigation would have resulted in evidence in favour of the Applicant;

(vii) The police wrongly stated the samples were taken before the cleaning of the bedroom after the fire, whereas pictures (that were withheld) showed that the samples were clearly still not taken after the bedroom was stripped out and tampered with by the police (after the fire);

(viii) The failures of the police investigation, and of the way this investigation was described, played an important role in judging the reconstruction of the fire; and

(ix) The police did not give a truthful description of the will of the Ms Davis.

15.74 The Applicant’s lawyer specifically criticised the findings of Mr Reijman, the fire reconstruction technician, on the following grounds:

(i) His reconstruction did not incorporate the normal patterns of starting deliberately a fire;

(ii) His reconstruction was based on a different bedroom, in that, for example, the bed differed fundamentally from the bed the Applicant’s wife actually slept on, a different mattress was used, and no sheets or bedding were present;

(iii) His reconstruction was based on much more turpentine than the turpentine that was allegedly found in the bedroom;

(iv) It was not clear what method he had used in his reconstruction and the methods he used were false;

(v) He did not follow the internationally recognised guidelines for the reconstruction (of which there are several – Dutch, European and international);

(vi) His statement that the damage after the reconstruction fire was similar to the damage actually found in the bedroom was clearly not one of an expert, as other undisputed experts found significant differences;

(vii) He gave various statements, changing his opinions, and did not base himself on the facts;

(viii) The way he conducted the cigarette-tests and his opinion on the cigarette-tests were not adequate and were characterized by another expert as scientifically not correct and a “blunder”; and

(ix) His suggestion that there must have been a “flashover” was severely criticized by other experts.

Serious criticism was also made of the technical policemen (principally Mr Albers) on the basis that their investigation had been deemed superficial and inadequate by experts. The risks of contamination were not mentioned, their cigarette-tests were inadequate and they cleaned the bedroom before taking samples. Mr Postema was also criticised for basing his conclusions on a theory relating to there having been a separate fire outside the bedroom and the so-called spot 5, suggestions were not followed by the many other experts.

15.75 However despite the requirements of EHCR and Dutch domestic law set out above, and the gravity and complexity of the case, the Court of Appeal [Appendix 1, Document 8] did not respond to the extensive defence criticisms, but simply made general comments on the investigation and found Mr Reijman’s reconstruction to have been carried out thoroughly and carefully. The Court dismissed the Article 6 arguments in one paragraph [p.3]. Accordingly the reasoning of the Court of Appeal left the Applicant and his counsel with a great and overwhelming sense of confusion.

15.76 In the Supreme Court proceedings the Applicant filed a detailed ground of appeal, containing 12 complaints [Appendix 1, Document 9]. He again sought to invoke his Article 6 rights and argued, based on the relevant case law, that the Court of Appeal should have responded to the defence that Mr Reijman could not be considered to be an expert and should have responded to the extensive critics – supported by experts – as to both the way the reconstruction was carried out and Mr Reijman’s findings. Moreover, further complaints were raised, relating to the following issues:

(i) Whereas the findings of Mr Reijman, the technical policemen and Mr Postema differed on fundamental issues – one or two places where the fire started, the damage after the reconstruction compared to the actual damage after the fire – it cannot be seen as adequate reasoning to use all their contradictory findings as evidence (complaint VII);

(ii) Where the Court of Appeal was of the opinion that the fire started between 02.10 am and 02.38 am and based the idea of arson on the reconstruction that showed an enormous fire within a few minutes, its judgment was inadequately reasoned by using as evidence the reports of both neighbours and policemen that there was no sign of a fire before 03.41 am (complaint VIII);

(iii) The cause of death (carbon monoxide poisoning) of the Applicant’s wife and her injuries are contrary to the opinion of the Court of Appeal that there was an aggressive fire within minutes, caused by arson (complaint IX);

(iv) The Court of Appeal’s opinion that a fire caused by a smoking cigarette was unlikely was based on the reconstruction of Mr Reijman, where – particularly related to the cigarette-tests – the reconstruction was, according to several experts, not done properly and considered to be a blunder (complaint X) (moreover the medical evidence confirmed that her injuries were consistent with a fire started by a cigarette), and

(v) The Court of Appeal’s opinion that Mr Sweeney was guilty of arson was contrary to the fact that the house was locked from the inside, making it impossible to start a fire and then leave the house (complaint XII).

15.77 Criticism was also made of the fact that the judgment of the Court of Appeal relied on evidence as to the various places in the bedroom samples of turpentine were found. It was therefore of the utmost importance to investigate whether these turpentine spots could be caused by contamination. As the photographs showed that the samples were taken after the bedroom was cleaned and the carpet was taken out of the bedroom (facts the police did not correctly describe in the file) it was argued that the Court of Appeal’s judgment that failures in the police investigation were not serious was not an adequate response to the defence. The Attorney-General produced an “Advice” of 39 pages in response [Appendix 1, Document 10].

15.78 However the reasoning of the Supreme Court [Appendix 1, Document 12] was as lacking as that of the Court of Appeal. It rejected the Applicant’s complaints III, IV, V and VI in just 10 pages of reasoning, much of which was simply citation of the Court of Appeal judgment. Moreover the Court did not even address complaints VII, VIII, IX, X and XII and invoked Article 81 as a justification for doing so, despite the gravity of the case (which made it inapplicable) and the fact that the Attorney-General had not sought the invocation of Article 81 (which is a normal pre-requisite).

15.79 In particular, at the heart of the Applicant’s case were very serious allegations that the police investigation did not meet the requirement of a good fire investigation (for instance in the way the samples were taken). Both the status and the findings of Mr Reijman, the technical policemen and Mr Postema were heavily criticised with the support of undisputed expert witnesses. In those circumstances it was a breach of the Applicant’s right to an adequately reasoned judgment for the Court of Appeal to convict him, and the Supreme Court to uphold that conviction, with no comment as to the expert status and to the trustworthiness of expert findings, and only the briefest of reasoning on these central issues.

15.80 Accordingly the Applicant submits that the judgments of both the Court of Appeal and the Supreme Court were inadequately reasoned, in violation of Article 6. This was compounded by an inappropriate invocation of Article 81 of Dutch domestic law as a justification for the Supreme Court’s lack of reasoning.

(xi) The Applicant did not have access to an independent and impartial tribunal

15.81 As is clear from the above paragraphs there were multiple contraventions of the Applicant’s Article 6 rights in the manner in which the Prosecution’s appeal against his acquittal and his appeal to the Supreme Court were convicted. For the reasons set out at paragraphs 15.91-15.96 below, it is submitted that he was the victim of discrimination in the enjoyment of his Article 6 rights, contrary to Article 14. The bizarre behaviour of the Court of Appeal (as set out at paragraphs 14.15-14.17 above) is also indicative of a lack of judicial independence. Moreover on 12 September 2002 a Government Minister from the Ministry of Justice issued a published Proclamation and on 8 October 2002 the Attorney General of the Supreme Court issued a written Decision of the Supreme Court to the effect that the Applicant had been finally and conclusively convicted, when the outcome of his appeal to the Supreme Court was not confirmed until 26 November 2002 after 2 further postponements. Moreover two policemen were dispatched on 18 September to inform the Applicant of the Public Proclamation of the Minister from the Ministry of Justice, before the judgment had even been given. In light of these factors and the multiplicity of violations which occurred, it is submitted that he did not have access to an independent and impartial tribunal as required by Article 6(1).

(xii) The Applicant has not been provided with adequate facilities for the preparation of his case before this Court

15.82 The Applicant has been remanded in custody since the end of the appeal hearing on 6 February 2001. He had expended his (substantial) savings on legal fees for the first trial but had not been granted Legal Aid for either of the appellate stages. He has therefore sought to represent himself before this Court, latterly with the assistance of pro bono representation. The Respondent State authorities have hampered his efforts to do so by:

(i) In the case of the court offices, refusing to provide him with translations of the key judgments in his case and denying him access to the case file;

(ii) In the case of the prison authorities, intercepting mail between the Applicant, his lawyers and this Court, opening and photocopying it; and

(iii) Refusing to allow him to have a computer on which he can work on his case in prison, despite the fact that other prisoners are permitted computers for educational and recreational purposes, and despite the fact that a computer for the Applicant’s use has been paid for and delivered, unopened in its original packaging from the manufacturer, to the prison where he is being held [13].

(iv) Refusing to allow the Applicant receipt of the court files, his case files, video-tapes of the police interrogations, law books, ECHR case law, writing materials, envelopes, etc.

15.83 These actions constitute a violation of the State’s positive obligation to ensure that the Applicant has adequate facilities for the preparation of his case before this Court. Violation (ii) also involves a violation of the recognised principle that Article 6(3)(c) requires confidentiality of communications between an accused person and his lawyer (S v Switzerland, 14 EHRR 670; Campbell v UK, 15 EHRR 137, at § 47; Neimietz v Germany, 16 EHRR 97, at § 37; Schönenberger and Durmaz v Switzerland, 11 EHRR 202).

E. Article 8

15.84 Insofar as it is relevant Article 8 provides:

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right...”

(i) The Dutch authorities actions' restricted the Applicant's right to contact with his daughters

15.85 The Applicant was a single father before her met Ms Davies and had two young daughters of his own. As soon as he was arrested in December 1995 they were illegally (contrary to Belgian law) removed from his home and taken to their grandparents (the Applicant's parents-in-law) in the United Kingdom. The evidence shows that there was close and continual contact between the parents-in-law (and their solicitors) and the police and prosecutors and that the object of this contact was to deprive the Applicant of his children. This contact went as far as social contact between the parents-in-law and the wives and families of the police officers. For example, there is evidence from a personal letter from the parents-in-law to the senior policeman asking for "expenses" as well as personal social references to the policeman’s wife.

15.86 The Dutch authorities continually delayed proceedings to ensure that the Applicant would lose the custody, care and contact of his children and thereby deprive him of a family life. There are a considerable number of faxes from the police to the parents-in-law (and their solicitors) and there is seen a pattern of delay in the proceedings against the Applicant. Under British law a parent may lose the custody and care of his children solely for the reason that the children have been away from their home and are regarded as being "settled" in another foster home.

15.87 Moreover, in the course of subsequent proceedings before the Family Division in the United Kingdom relating to his daughters, Dutch officers alleged that the Applicant had started the fire "in 22 places around the house" when even on the Prosecution's own case this was untrue and all that had been consumed by fire were parts of the bed. This malicious statement was intended to restrict the Applicant's contact with his children without reason, and was accordingly an unjustified infringement of his Article 8 rights. In fact the Applicant has been deprived of any real contact with his young daughters since 1995.

(ii) The prison authorities have interfered with the Applicant's legal correspondence

15.88 As is indicated at paragraph 15.82(ii) above the prison authorities in the Respondent state have systematically interfered with the Applicant's correspondence from his lawyers and to this Court. It is well-established that such an interference with an inmate's mail constitutes an infringement of Article 8 (Golder v UK (1975) EHRR 524; and more recently AB v The Netherlands (Appl. No. 0037328/97, 29/1/2002). There does not appear to be any separate provision under Dutch prison law to protect the privacy of inmates' correspondence with their lawyers as opposed to other correspondence [14].

F. Article 13

(i) The Applicant was not provided with an effective remedy for the violations of his rights

15.89 Article 13 provides:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”.

15.90 Article 13 was violated in relation to the Applicant in that the Dutch authorities, the Prosecution officers (police, prosecutors and Examining Magistrates), the Court of Appeal and the Supreme Court denied the Applicant an effective remedy in respect of the evidence that was presented to them of the corruption of certain law officers and policemen and their actions to pervert the course of justice.

G. Article 14

15.91 Article 14 provides:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".

15.92 As is explained at paragraphs 15.4-15.9 above, during the 200 hours of police interviews the Applicant was continually attacked on matters and allegations relating to his race, place of birth, religion and his opinions.

15.93 The Applicant's race/nationality appeared of particular significance. For example, the police initially insisted to the press that the Applicant was Indian and indeed the press carried stories along these lines. One television programme showed images of an Indian village and horse drawn vehicles, et al. The Applicant had told the police that whilst he was baptised in the Anglican Church in Poona (India) he was not born there. The police knew that this was in fact true (as the private investigator they had hired confirmed this to be the case), but nevertheless persisted in referring to the Applicant's race while making disparaging comments about him to the media.

15.94 The judges in the Court of Appeal and the Supreme Court also made reference to the fact that the Applicant was baptised (he is a Protestant) and that this was in Poona. The Applicant understands that to mention the fact and place of a person's baptism in a criminal trial is a unique occurrence in Dutch judicial history (as one would expect, as it is simply not relevant). To the best of the Applicant's knowledge, in the south of the Netherlands where he was tried, the indigenous Dutch population is almost 100% Roman Catholic.

15.95 The Dutch police had also inaccurately formed the view that the Applicant was a millionaire and disparaged him for this. In fact they knew very well (as they had the Applicant’s bank records for the preceding 5 years), that he was not a millionaire and earned only some 180,000 Euros per annum during that period. In June 1996 the trial court nevertheless set an amount of bail for the Applicant’s release at DFL 750,000, an exceptionally high figure in Dutch proceedings, and based on the media allegation (planted by the police) that the Applicant was a millionaire.

15.96 In light of these factors and the multiplicity of violations of his Convention rights which occurred, the Applicant complains that he was discriminated in the enjoyment of his Convention rights under Articles 3, 5, 8, 13, and most significantly, Article 6, on grounds of his race, birth, language, religion and other opinions and that of his alleged wealth, contrary to Article 14.

IV STATEMENT RELEVANT TO ARTICLE 35 § 1

16. Final decision

Date 26 November 2002

Court or authority Supreme Court of the Netherlands

Nature of decision Dismissal of the Applicant's

appeal against conviction

17. Other decisions

Date Court Nature of decision

24 October 1996 Den Bosch District Court Acquittal

20 February 2001 Den Bosch Court of Appeal Conviction & sentence

18. To the best of his knowledge, there are no further appeals or remedies the Applicant can pursue to challenge the decision of the Supreme Court of the Netherlands.

V STATEMENT OF THE OBJECT OF THE APPLICATION AND PROVISIONAL CLAIMS FOR JUST SATISFACTION

19. The Applicant seeks, by way of just satisfaction:

(i) A declaration that his rights under Article 3, 5, 6, 8, 13 and 14 or any combination thereof have been violated;

(ii) Compensation for pecuniary and non-pecuniary loss;

(iii) An order that he be re-tried and released on bail forthwith; alternatively released in any event;

(iv) The costs of this application.

VI. STATEMENT CONCERNING

OTHER INTERNATIONAL PROCEEDINGS

20. The Applicant has not submitted the complaints in this application to any other procedure of international investigation or settlement.

VII. LIST OF DOCUMENTS

See attached Appendix 1.

Dated this 6 day of November, 2003

Doughty Street Chambers

10-11 Doughty Street
London WC1N 2PL

Tel: (+44) (0)20 7404-1313
Fax: (+44) (0)20 7404-2283

[1]This Memorial particularises the letters of introduction submitted on behalf of the Applicant to the Court on 6 and 23 May 2003.

[2]This Memorial has been drafted with the assistance of counsel at Doughty Street Chambers, 10-11 Doughty Street, London WC1N 2PL. Tel: +44 (0) 20 7404-1313 Fax: +44 (0) 20 7404-2283. Stijn Franken, who represented the Applicant before the Supreme Court, also assisted in the drafting of the allegation of a lack of reasoning by the Court of Appeal and the Supreme Court.

[3]as to which, see Tak, The Dutch Criminal Justice system (Boom Juridische Uitgevers, 2003) at para. 6.7 [Appendix 1, Document 16]

[4]as to which, the Applicant does not accept as appears to be indicated by the Greffier's notes that his lawyer had the "last word" at the hearing.

[5]As to this the Applicant prays in aid the fact that in 1996, in refusing the Dutch government’s application for a Rogatory Commission, the United States Department of Justice stated that they saw no evidence against the Applicant and questioned the motive for the Dutch authorities in pursuing the Applicant.

[6]see Tak, ibid. at para. 6.11 [Appendix 1, Document 16]

[7]This is taken to be the time when the defendant is "officially notified" or "substantially affected" by the proceedings taken against him (Deweer v Belgium, 2 EHRR 439, at § 46; Eckle v Germany, 5 EHRR 1; Coriaglano v Italy, 5 EHRR 334). This will usually be the date of charge by the police, but in a case where the charge is delayed, or subsequent charges are added it may be the date of a person’s initial arrest, or the date on which the defendant becomes aware that he is being "seriously investigated" and that "immediate consideration" is being given to the possibility of a Prosecution (Ewing v UK,10 EHRR 141; X v UK, 14 DR 26; X v UK, 17 DR 122

[8]and the admission of the evidence of a witness who has been promised immunity from Prosecution without informing the court and the defence of the circumstances, as appears to have occurred here, may itself be a breach of Article 6 (X v UK, 7 DR 115)

[9]For the avoidance of doubt, the judgments in Appendix 1 hereto have been prepared after the Applicant's Supreme Court hearing, on a pro bono basis, or funded, with some difficulty, by the Applicant's family in the United Kingdom. It has not been possible to arrange for any further documents to be translated.

[10]see Tak, ibid, at para. 6.12 [Appendix 1, Document 16]

[11]Such a right being intended to protect litigants against the administration of justice in secret with no public scrutiny, and to maintain public confidence in the administration of justice (Pretto v Italy, 6 EHRR 182, at § 21).

[12]see Tak, ibid, at para. 612 [Appendix 1, Document 16]

[13]NB: This allegation, and that relating to the mail tampering, are currently the subject of internal administrative proceedings brought by the Applicant [see Notice of Complaint, dated 19 May 2003; Skeleton Argument dated 27 June 2003 - Appendix 1, Document 15]. Assuming they are not resolved in the Applicant's favour, the Court is invited to accept these paragraphs as notification of his intention to add them to his complaint.

[14]see Tak, ibid. at pp.9.4 [Appendix 1, Document 16]