I correctly predicted that there was a violation of human rights in SAFSSAFI v. THE NETHERLANDS.

Judgment

THIRD SECTION
CASE OF SAFSSAFI v. THE NETHERLANDS
(Application no. 61125/19)

JUDGMENT
STRASBOURG
10 January 2023

This judgment is final but it may be subject to editorial revision. In the case of Safssafi v. the Netherlands,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Georgios A. Serghides, President, Jolien Schukking, Darian Pavli, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 61125/19) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 November 2019 by a Dutch national, Mr Samir Safssafi (“the applicant”), born in 1978 and living in IJsselstein, who was represented by Mr C.J.J. Visser, a lawyer practising in Amsterdam;
the decision to give notice of the application to the Government of the Kingdom of the Netherlands (“the Government”), represented by their Agent, Ms B. Koopman of the Ministry of Foreign Affairs;
the parties’ observations;
Having deliberated in private on 29 November 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The issue in this case is the inability of the applicant to cross-examine three prosecution witnesses whose statements had been used in evidence in criminal proceedings against him. 2. The applicant rented a house from a housing association. In 2015 he sublet it to a couple (witnesses 1 and 2) with the help of a letting agent (witness 3). After the couple had moved in and tried to register as residents with the local municipality, they found out that the applicant was not the owner of the house and was not in a position to sublet it. 3. In January 2016 the couple found that the applicant had entered the house and moved their belongings. The applicant was convicted by the Central Netherlands Regional Court (rechtbank) of fraud and unlawful entry of a dwelling in use by another person, based on the statements of the couple and the letting agent, and on the tenancy agreement. 4. The applicant appealed against his conviction and asked to cross‐examine the three witnesses. He repeated the request at the hearing. The Arnhem-Leeuwarden Court of Appeal (gerechtshof) rejected the first request because it had been made too late (it had been sent by fax only nine days, instead of the required fourteen days, before the hearing) while the second request, made at the hearing and on which the court applied the “necessity criterion” (noodzakelijkheidscriterium), was rejected because there was no reason to doubt the accuracy of the witness statements. The court noted that the defence had had an opportunity to examine the witnesses if it had submitted the request in time. The court also found that the witness statements were not the sole and decisive evidence, as they were corroborated by other evidence. The Court of Appeal upheld the applicant’s conviction. 5. On 21 May 2019 the Supreme Court dismissed the applicant’s appeal on points of law with summary reasoning. 6. Relying on Article 6 of the Convention the applicant complained that he ought to have been allowed to cross-examine the three witnesses for the prosecution because their statements had been the decisive evidence during the proceedings which had led to his conviction, there was no good reason for their non-attendance and there were no counterbalancing factors. THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
7. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 8. The general principles concerning the right to examine witnesses have been summarised in Al-Khawaja and Tahery v. the United Kingdom, nos. 26766/05 and 22228/06, §§ 118-47, 20 January 2009; Schatschaschwili v. Germany [GC], no. 9154/10, §§38-51, ECHR 2015; and Keskin v. the Netherlands, no. 2205/16, §§ 38-51, 19 January 2021. 9. In the present case the request to cross-examine the prosecution witnesses, submitted by the applicant’s counsel to the Court of Appeal, was rejected. The statements which they had previously made were admitted in evidence. To examine whether the proceedings, as a whole, were compatible with Article 6, the case‐law provides for a three-step approach, as set out below. 10. As to whether there was good reason for the non-attendance of the witnesses at trial and, consequently, for the admission of the absent witnesses’ untested statement in evidence, the Court notes that the rejection of the request to cross-examine the witnesses was based on the fact that the applicant’s counsel had not submitted it in time and because there was no reason to doubt the accuracy of the witness statements. 11. The Court reiterates that if the prosecution has decided that a particular person is a relevant source of information and relies on his or her testimony at the trial, and that testimony is used to support a conviction, it must be presumed that his or her appearance and questioning are necessary (see Keskin, cited above, § 56). 12. Regarding the foregoing, it cannot be said that the Court of Appeal established good factual or legal grounds for not securing the attendance of the prosecution witnesses. 13. As to whether the evidence of the absent witnesses was the sole or decisive basis for the defendant’s conviction:
The statements made by the three witnesses were not the sole basis for the defendant’s conviction. The Court of Appeal did use other evidence (the tenancy agreement and by a police report confirming that the house was the property of the housing association). However, having regard to the considerations in relation to the evidence employed by the appellate court, the Court considers that the evidence of the absent witnesses was of such significance or importance as is likely to have been determinative of the outcome of the case. 14. As to whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps faced by the defence as a result of the admission of the untested evidence and to ensure that the trial, assessed as a whole, was fair:
In the judgment of the Court of Appeal the statements by the three witnesses were listed along with the other evidence substantiating the applicant’s guilt. There is no indication that the Court of Appeal was aware of the reduced evidentiary value of the untested witness statements. Further, one of the reasons given by the Court of Appeal in rejecting the applicant’s request to examine the witnesses was that there was no reason to doubt the accuracy of their statements. However, it does not transpire from the minutes of the hearing or from the reasoning in its judgment why the Court of Appeal considered that evidence to be reliable. As stated above, there was additional incriminating evidence supporting the witness statements. As for procedural measures aimed at compensating the lack of an opportunity to directly cross‐examine the witnesses at trial, it should be noted that the applicant did have the opportunity to give his own version of events during the trial. However, the Court considers that an opportunity to challenge and rebut absent witnesses’ statements is of limited use in a situation where a defendant has been denied the possibility to cross‐examine the witnesses, and moreover it has repeatedly held that such an opportunity cannot, of itself, be regarded as a sufficient counterbalancing factor to compensate for the handicap for the defence created by the witnesses’ absence (see Keskin, cited above, § 68). No other procedural measures were taken. Having regard to the above, the Court finds that it cannot be said that there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured. 15. In those circumstances, the lack of an opportunity for the applicant to cross-examine the prosecution witnesses or have them examined at any stage of the proceedings rendered the trial as a whole unfair. 16. There has accordingly been a violation of Article 6 §§ 1 and 3 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
17. The applicant claimed 10,000 euros (EUR) in respect of non‐pecuniary damage, EUR 429 in respect of costs and expenses incurred before the domestic courts and EUR 199 for those incurred before the Court. The total amount claimed by the applicant for costs and expenses is EUR 728. 18. The Government were of the opinion that the applicant had not established a clear link between the damage claimed and the alleged violation, and that the amount claimed was unreasonable and unsubstantiated. They also noted that Article 457 § 1 (b) of the Dutch Code of Criminal Procedure provides a basis for reopening proceedings if the Court finds a violation of the Convention. The Government furthermore noticed a counting error in the costs claimed and noted that, in so far as those costs related to the domestic proceedings, they were only partly substantiated with receipts. The Government were of the opinion that the total amount of the costs and expenses should be EUR 485 instead of EUR 728. 19. The Court refers to its consistent case-law, according to which where, as in the instant case, a person is convicted in domestic proceedings that have entailed breaches of the requirements laid down in Article 6 of the Convention, a new trial or the reopening of the domestic proceedings at the request of the interested person would be the most appropriate way to redress the violation (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, § 126, ECHR 2006-II, Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005‐IV; Cabral v. the Netherlands, no. 37617/10, §§ 42-43, 28 August 2018; and Chernika v. Ukraine, no. 53791/11, § 82, 12 March 2020, Keskin, cited above, § 81). In this connection, it notes that Dutch law provides a basis for reopening proceedings if the Court finds a violation of the Convention. 20. Therefore, the Court considers that the finding of a violation constitutes sufficient just satisfaction in the present case. 21. Having regard to the documents in its possession, the Court considers it reasonable to award the applicant EUR 485 in respect of costs and expenses. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, from the date on which the judgement becomes final in accordance with Article 44 § 2 of the Convention, EUR 485 in respects of costs and expenses, plus any tax that may be chargeable to the applicant on that amount;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 10 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Olga Chernishova Georgios A. Serghides Deputy Registrar President

THIRD SECTION
CASE OF SAFSSAFI v. THE NETHERLANDS
(Application no. 61125/19)

JUDGMENT
STRASBOURG
10 January 2023

This judgment is final but it may be subject to editorial revision. In the case of Safssafi v. the Netherlands,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Georgios A. Serghides, President, Jolien Schukking, Darian Pavli, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 61125/19) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 November 2019 by a Dutch national, Mr Samir Safssafi (“the applicant”), born in 1978 and living in IJsselstein, who was represented by Mr C.J.J. Visser, a lawyer practising in Amsterdam;
the decision to give notice of the application to the Government of the Kingdom of the Netherlands (“the Government”), represented by their Agent, Ms B. Koopman of the Ministry of Foreign Affairs;
the parties’ observations;
Having deliberated in private on 29 November 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The issue in this case is the inability of the applicant to cross-examine three prosecution witnesses whose statements had been used in evidence in criminal proceedings against him. 2. The applicant rented a house from a housing association. In 2015 he sublet it to a couple (witnesses 1 and 2) with the help of a letting agent (witness 3). After the couple had moved in and tried to register as residents with the local municipality, they found out that the applicant was not the owner of the house and was not in a position to sublet it. 3. In January 2016 the couple found that the applicant had entered the house and moved their belongings. The applicant was convicted by the Central Netherlands Regional Court (rechtbank) of fraud and unlawful entry of a dwelling in use by another person, based on the statements of the couple and the letting agent, and on the tenancy agreement. 4. The applicant appealed against his conviction and asked to cross‐examine the three witnesses. He repeated the request at the hearing. The Arnhem-Leeuwarden Court of Appeal (gerechtshof) rejected the first request because it had been made too late (it had been sent by fax only nine days, instead of the required fourteen days, before the hearing) while the second request, made at the hearing and on which the court applied the “necessity criterion” (noodzakelijkheidscriterium), was rejected because there was no reason to doubt the accuracy of the witness statements. The court noted that the defence had had an opportunity to examine the witnesses if it had submitted the request in time. The court also found that the witness statements were not the sole and decisive evidence, as they were corroborated by other evidence. The Court of Appeal upheld the applicant’s conviction. 5. On 21 May 2019 the Supreme Court dismissed the applicant’s appeal on points of law with summary reasoning. 6. Relying on Article 6 of the Convention the applicant complained that he ought to have been allowed to cross-examine the three witnesses for the prosecution because their statements had been the decisive evidence during the proceedings which had led to his conviction, there was no good reason for their non-attendance and there were no counterbalancing factors. THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
7. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 8. The general principles concerning the right to examine witnesses have been summarised in Al-Khawaja and Tahery v. the United Kingdom, nos. 26766/05 and 22228/06, §§ 118-47, 20 January 2009; Schatschaschwili v. Germany [GC], no. 9154/10, §§38-51, ECHR 2015; and Keskin v. the Netherlands, no. 2205/16, §§ 38-51, 19 January 2021. 9. In the present case the request to cross-examine the prosecution witnesses, submitted by the applicant’s counsel to the Court of Appeal, was rejected. The statements which they had previously made were admitted in evidence. To examine whether the proceedings, as a whole, were compatible with Article 6, the case‐law provides for a three-step approach, as set out below. 10. As to whether there was good reason for the non-attendance of the witnesses at trial and, consequently, for the admission of the absent witnesses’ untested statement in evidence, the Court notes that the rejection of the request to cross-examine the witnesses was based on the fact that the applicant’s counsel had not submitted it in time and because there was no reason to doubt the accuracy of the witness statements. 11. The Court reiterates that if the prosecution has decided that a particular person is a relevant source of information and relies on his or her testimony at the trial, and that testimony is used to support a conviction, it must be presumed that his or her appearance and questioning are necessary (see Keskin, cited above, § 56). 12. Regarding the foregoing, it cannot be said that the Court of Appeal established good factual or legal grounds for not securing the attendance of the prosecution witnesses. 13. As to whether the evidence of the absent witnesses was the sole or decisive basis for the defendant’s conviction:
The statements made by the three witnesses were not the sole basis for the defendant’s conviction. The Court of Appeal did use other evidence (the tenancy agreement and by a police report confirming that the house was the property of the housing association). However, having regard to the considerations in relation to the evidence employed by the appellate court, the Court considers that the evidence of the absent witnesses was of such significance or importance as is likely to have been determinative of the outcome of the case. 14. As to whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps faced by the defence as a result of the admission of the untested evidence and to ensure that the trial, assessed as a whole, was fair:
In the judgment of the Court of Appeal the statements by the three witnesses were listed along with the other evidence substantiating the applicant’s guilt. There is no indication that the Court of Appeal was aware of the reduced evidentiary value of the untested witness statements. Further, one of the reasons given by the Court of Appeal in rejecting the applicant’s request to examine the witnesses was that there was no reason to doubt the accuracy of their statements. However, it does not transpire from the minutes of the hearing or from the reasoning in its judgment why the Court of Appeal considered that evidence to be reliable. As stated above, there was additional incriminating evidence supporting the witness statements. As for procedural measures aimed at compensating the lack of an opportunity to directly cross‐examine the witnesses at trial, it should be noted that the applicant did have the opportunity to give his own version of events during the trial. However, the Court considers that an opportunity to challenge and rebut absent witnesses’ statements is of limited use in a situation where a defendant has been denied the possibility to cross‐examine the witnesses, and moreover it has repeatedly held that such an opportunity cannot, of itself, be regarded as a sufficient counterbalancing factor to compensate for the handicap for the defence created by the witnesses’ absence (see Keskin, cited above, § 68). No other procedural measures were taken. Having regard to the above, the Court finds that it cannot be said that there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured. 15. In those circumstances, the lack of an opportunity for the applicant to cross-examine the prosecution witnesses or have them examined at any stage of the proceedings rendered the trial as a whole unfair. 16. There has accordingly been a violation of Article 6 §§ 1 and 3 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
17. The applicant claimed 10,000 euros (EUR) in respect of non‐pecuniary damage, EUR 429 in respect of costs and expenses incurred before the domestic courts and EUR 199 for those incurred before the Court. The total amount claimed by the applicant for costs and expenses is EUR 728. 18. The Government were of the opinion that the applicant had not established a clear link between the damage claimed and the alleged violation, and that the amount claimed was unreasonable and unsubstantiated. They also noted that Article 457 § 1 (b) of the Dutch Code of Criminal Procedure provides a basis for reopening proceedings if the Court finds a violation of the Convention. The Government furthermore noticed a counting error in the costs claimed and noted that, in so far as those costs related to the domestic proceedings, they were only partly substantiated with receipts. The Government were of the opinion that the total amount of the costs and expenses should be EUR 485 instead of EUR 728. 19. The Court refers to its consistent case-law, according to which where, as in the instant case, a person is convicted in domestic proceedings that have entailed breaches of the requirements laid down in Article 6 of the Convention, a new trial or the reopening of the domestic proceedings at the request of the interested person would be the most appropriate way to redress the violation (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, § 126, ECHR 2006-II, Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005‐IV; Cabral v. the Netherlands, no. 37617/10, §§ 42-43, 28 August 2018; and Chernika v. Ukraine, no. 53791/11, § 82, 12 March 2020, Keskin, cited above, § 81). In this connection, it notes that Dutch law provides a basis for reopening proceedings if the Court finds a violation of the Convention. 20. Therefore, the Court considers that the finding of a violation constitutes sufficient just satisfaction in the present case. 21. Having regard to the documents in its possession, the Court considers it reasonable to award the applicant EUR 485 in respect of costs and expenses. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, from the date on which the judgement becomes final in accordance with Article 44 § 2 of the Convention, EUR 485 in respects of costs and expenses, plus any tax that may be chargeable to the applicant on that amount;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 10 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Olga Chernishova Georgios A. Serghides Deputy Registrar President