Last Updated on February 6, 2024 by LawEuro
European Court of Human Rights (Application no. 56440/15)
The applicant submitted that his right to examine witness X was wrongly restricted, arguing that there had been no good reason to grant X the status of threatened witness. In that connection the applicant submitted that the Regional Court sitting in chambers had decided on the appeal against the decision not to grant the witness that status without having consulted investigating judge A., who had spoken in person to X and was, the applicant argued, thus the only one to have formed an adequate judgment about whether the granting of the status of threatened witness was necessary.
With regard to the evidentiary weight of the statements of X, the applicant submitted that they had been decisive or significant in his conviction since the remainder of the evidence on which his conviction had been based consisted merely of a discarded cigarette butt with the applicant’s DNA on it and witness statements by his ex-girlfriend.
As to the presence of counterbalancing factors, the applicant argued that although the defence had been somewhat compensated by the opportunity to submit written questions to the anonymous witness, it had been unable to judge his or her credibility. Multiple requests for investigating judge A. to be heard had been dismissed. The fact that the Regional Court sitting in chambers and the trial courts had formed their own opinion about X’s credibility had been insufficient compensation.
The Government submitted that there had been good reasons for concealing the identity of X and that the domestic courts had had objective grounds supported by evidence for doing so. They noted that the question whether the anonymous witness X should be granted the status of threatened witness was extensively assessed in the criminal proceedings and that before deciding on the appeal and concluding that X was entitled to the protection afforded by Article 226a of the CCP, the Regional Court sitting in chambers had heard the public prosecutor and X’s lawyer. The witness had felt the existence of a threat to his or her life, health and safety, had specifically feared the applicant, and had indicated that he or she had always wanted full anonymity as a condition for making a statement. The case had involved a murder suspect who had received previous non-suspended custodial sentences, the case was linked to a notorious drug‑trafficking organisation, X was familiar with these facts and circumstances, and the applicant had become aware of the existence of his or statement made in 2005. The Government also noted that the threat assessment requested by investigating judge V. had provided further grounds, albeit retrospectively, for the decision to grant X the status of threatened witness.
The Government submitted that the statements of X had been neither the sole nor the decisive basis for the applicant’s conviction, noting that his conviction was based on twenty items of evidence and that the domestic courts had explicitly established that due to the existence of other corroborative and incriminating evidence – in particular the statements of the applicant’s ex-girlfriend and the findings of the technical forensic investigation – X’s statements had not been determinative for the outcome of the case. Relying on the Court’s case-law, the Government considered that the assessment by the domestic courts of the weight attributable to X’s statement was neither unclear, nor unacceptable, nor arbitrary.
The Government further submitted that in so far as X’s statements had to be considered as carrying “significant weight”, sufficient counterbalancing factors had been present. In the light of the elements indicated by the Court in Schatschaschwili v. Germany ([GC], no. 9154/10, § 145, ECHR 2015), they firstly observed that the domestic courts had made it clear in their reasoned judgments that the statements of the anonymous witness must be treated with caution, and that investigating judge V. and the domestic courts had made a careful assessment of the credibility and reliability of X.
The Government subsequently noted that the domestic courts had assessed the availability and strength of further incriminating evidence and had determined that the findings of the criminal investigation and the statements of the applicant’s ex-girlfriend who had been cross-examined during the proceedings at first instance, constituted substantial corroboration of X’s statements. This had reduced the weight accorded to the statements of X and increased the likelihood that he or she had been reliable.
Thirdly, as regards procedural measures to compensate for the inability to directly cross-examine the witness, the Government noted that the applicant had been invited to submit written questions to X (the answers to some of which had been left out of the official record only in so far as necessary to ensure anonymity) and to submit further written questions (of which he had not made use), that he had been heard on the prosecutor’s application to grant threatened witness status to X, that he had been in a position to give his own version of the events, and that equality of arms with the public prosecutor had been respected. Questioning investigating judge A., as requested by the applicant, would not have been a counterbalancing factor for the assessment of the reliability of the witness X since pursuant to national law it is the investigating judge examining the threatened witness (which was investigating judge V.) who is entrusted with that assessment.
Finally, the Government noted that a further procedural safeguard laid in the fact that the domestic courts had assessed and convincingly explained that no fundamental defects existed in the order granting X the status of threatened witness and that the use of the results of the subsequent examination of that witness had not violated the applicant’s rights under Article 6 of the Convention.
The Court’s assessment
The Court’s primary concern under Article 6 § 1 of the Convention is to evaluate the overall fairness of the criminal proceedings. Compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident. In evaluating the overall fairness of the proceedings, the Court will take into account, if appropriate, the minimum rights listed in Article 6 § 3, which exemplify the requirements of a fair trial in respect of typical procedural situations which arise in criminal cases. They can be viewed, therefore, as specific aspects of the concept of a fair trial in criminal proceedings in Article 6 § 1.
The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law, and as a general rule it is for the national courts to assess the evidence before them. As regards statements made by witnesses, the Court’s task under the Convention is not to give a ruling as to whether those statements were properly admitted as evidence, but rather – as already set out in paragraph 55 above – to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair.
Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings.
Principles on the admission of untested evidence of prosecution witnesses absent from trial
In Al-Khawaja and Tahery the Grand Chamber of the Court summarised and refined the principles to be applied in cases where a prosecution witness did not attend the trial and statements previously made by him or her were admitted as evidence. The compatibility of such proceedings with Article 6 §§ 1 and 3 (d) of the Convention must be examined in three steps: (i) whether there was a good reason for the non-attendance of the witness and, consequently, for the admission of the absent witness’s untested statement as evidence; (ii) whether the evidence of the absent witness was the sole or decisive basis for the defendant’s conviction and (iii) 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, judged as a whole, was fair.
Where absence is the result of fear, a distinction can be drawn between fear attributable to threats or other actions of the defendant or those acting on his behalf and fear attributable to a more general fear of what will happen if the witness gives evidence at trial. In the former case, it is appropriate to allow a statement of that witness to be introduced at trial even if it is the sole or decisive evidence against the defendant, because to allow the defendant to benefit from the fear he has engendered in witnesses would be incompatible with the rights of victims and witnesses. As to the latter, there is no requirement that a witness’s fear be attributable directly to threats made by the defendant in order for that witness to be excused from giving evidence at trial. This does not mean, however, that any subjective fear of the witness will suffice. The trial court must conduct appropriate enquiries to determine, first, whether or not there are objective grounds for that fear, and, second, whether those objective grounds are supported by evidence.
Those principles have been further clarified in Schatschaschwili. The Grand Chamber of the Court explained that “good reason for the absence of a witness” must exist from the trial court’s perspective, that is, the court must have had good factual or legal grounds not to secure the witness’s attendance at the trial. If there was a good reason for the witness’s non‑attendance in that sense, it followed that there was a good reason, or justification, for the trial court to admit the untested statements of the absent witness as evidence. While the absence of a good reason for the non‑attendance of the witness could not of itself be conclusive of the unfairness of the applicant’s trial, it was a very important factor to be weighed in the balance when assessing the overall fairness of a trial, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d) of the Convention.
As regards the question whether the evidence of the absent witness whose statements were admitted in evidence was the sole or decisive basis for the defendant’s conviction, the Court reiterated that “sole” evidence is to be understood as the only evidence against the accused and that “decisive” should be narrowly interpreted as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supporting evidence; the stronger the corroborative evidence, the less likely that the evidence of the absent witness will be treated as decisive.
The Court further held that it is not for it to act as a court of fourth instance, its starting-point for deciding whether an applicant’s conviction was based solely or to a decisive extent on the depositions of an absent witness being the judgments of the domestic courts. The Court must review the domestic courts’ evaluation in the light of the meaning it has given to “sole” and “decisive” evidence and ascertain for itself whether the domestic courts’ evaluation of the weight of the evidence was unacceptable or arbitrary. It must further make its own assessment of the weight of the evidence given by an absent witness if the domestic courts did not indicate their position on that issue or if their position is not clear.
As regards the counterbalancing factors which permit a fair and proper assessment of the reliability of the untested witness evidence, the Court found the following elements of relevance in the assessment of the adequacy of counterbalancing factors: the trial court’s approach to the untested evidence; the availability and strength of corroborative evidence supporting the untested witness statements; and the procedural measures taken to compensate for the lack of opportunity to directly cross-examine the witness at the trial.
Furthermore, given that its concern is to ascertain whether the proceedings as a whole were fair, the Court should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence.
Similarities and differences between anonymous and absent witnesses
While the judgments in the cases of Al-Khawaja and Tahery and Schatschaschwili concerned absent rather than anonymous witnesses, the Court has held that the problems raised by the two types of witnesses are not different in principle, since each results in a potential disadvantage for the defendant due to the inability to test the probity and credibility of the witnesses and to test the truthfulness and reliability of their evidence. The Court therefore takes a similar approach to the admission in evidence of statements of an absent witness and of statements of a witness whose identity is concealed.
The Court has, however, also recognised that the precise limitations on the defence’s ability to challenge an anonymous witness differ from those in respect of an absent witness whose identity, after all, is known. The Court reiterates that in the case of a fully anonymous witness, where no details whatsoever as to the witness’ identity or background are known, the defence faces the difficulty of being unable to put to the witness any reasons which the witness may have for lying. Accordingly, the use in evidence of a fully anonymous witness statement and the inability to question that witness at trial may exacerbate the extent of the handicap under which the defence is labouring.
Like in cases where the statement of an absent witness was considered the sole or decisive evidence or where such evidence carried significant weight, the Court must subject the proceedings in which a statement of anonymous witness is used in evidence to the most searching scrutiny. In view of this, the Court must be satisfied that there are sufficient counterbalancing factors, including the existence of strong procedural safeguards, to permit a fair and proper assessment of the reliability of that evidence to take place.
Application of these principles to the present case
Whether there were good reasons justifying the protection of the identity of the witness
Although it is true that the precise source of X’s fears was never made known to the defence or the public, the seriousness and well-foundedness of his or her apprehensions were examined by the Regional Court sitting in chambers. The Court observes that when it granted him or her the status of threatened witness, the Regional Court provided detailed reasoning in respect of the danger associated with the applicant and the impact of that danger on X, and it established that X would fear for his or her life, health and safety if his or her identify would become known. That court did not rely solely on the information provided by X but also on objective facts which could be reasonably considered to have contributed to fear on the part of X. In particular, the applicant was suspected of having been hired by someone to whom the victim, Y., owed money for a drugs deal and X knew that the applicant had already received many previous non-suspended custodial sentences, including for violent crimes.
The main reason why investigating judge A. refused to grant that status was that X had already made a statement in 2005 as a witness with limited anonymity. In this connection, it is noted however that when X had been examined by the investigation judge in 2005, there was no murder suspect who could have asked to cross-examine him or her. The Regional Court sitting in chambers also drew attention, among other things, to the fact that X, who had not been represented by counsel when making the statement in 2005, had probably been unaware of the differences between Articles 190 and 226a of the CCP, and that an average witness could not be expected to understand the legal details of the status accorded by those provisions. The fact that the applicant, who in 2010 had been arrested and charged with involvement in Y.’s murder, had become acquainted with the incriminating witness statement against him and had asked for X to be heard at the trial presented, according to the court, a change of circumstances that led it to grant X a more protective status.
In the light of the explicit and case-specific findings on this point, it cannot be said that the court’s decision to grant X the status of threatened witness was unclear or insufficiently substantiated, or that the reasons put forward for doing so were speculative or based exclusively on the seriousness of the crimes committed. To the contrary, based on the material before it the Court finds that the decision of the Regional Court sitting in chambers to grant X the status of threatened witness on account of his or her fear of reprisals was based on objective grounds and supported by evidence and thus cannot be considered arbitrary or manifestly unreasonable.
In the light of the above, the Court is prepared to accept that there was a good reason justifying the protection of X’s identity.
Whether the evidence of the witness X was the sole or decisive basis for the applicant’s conviction
The Court observes that the statements of X were not the sole basis for the applicant’s conviction, nor was this alleged by him. The Court further notes that the Regional Court and the Court of Appeal explicitly held that the statements of X did not form the decisive evidence for their guilty verdicts. The Court of Appeal elaborated on that finding by holding that the statements of X corresponded in many essential respects with those of the applicant’s ex-girlfriend which were corroborated by the statements of other witnesses and the applicant, and the discarded cigarette butt with the applicant’s DNA on it, with the latter providing a compelling temporal and geographical connection between the applicant and the murder of Y. – a connection for which the applicant had failed to give a consistent and convincing alternative explanation.
The above finding of the appellate court is neither arbitrary nor manifestly unreasonable. Considering that it is not its role to act as a court of fourth instance, the Court sees no reason to substitute its own assessment of the weight of the statements in question for that of the Court of Appeal.
In view of the above, the Court accepts the Court of Appeal’s finding that the applicant’s conviction was not based solely or decisively on the statements of X. Nevertheless, noting that the statements of X were not of insignificant weight in that they were used to corroborate those of the applicant’s ex-girlfriend and assess her reliability and credibility, and given the need under Article 6 to assess the fairness of the proceedings taken as a whole, the Court will now determine whether there were sufficient factors counterbalancing any handicaps that the admission of that evidence might have entailed for the defence.
Whether there were sufficient counterbalancing factors
The Court found the following elements of relevance in the assessment of the adequacy of counterbalancing factors: the trial court’s approach to the untested evidence; the availability and strength of corroborative evidence supporting the untested witness statements; and the procedural measures taken to compensate for the lack of opportunity to directly cross-examine the witness at the trial.
In this connection, the Court has held that the question whether there were sufficient counterbalancing factors is closely related to the evidentiary weight of the statements of an untested witness, which is, in turn, inversely related to the evidentiary weight of other items of evidence. In other words, the more important the remaining evidence, the less evidentiary weight is attributed to the statements of an untested witness and, in turn, the less weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair.
With respect to the domestic courts’ approach to the untested evidence and the presence of further incriminating evidence, the Court observes that the Court of Appeal examined the weight, coherence and consistency of X’s statements and cross-referenced them with other available evidence and satisfied itself in a careful manner with detailed reasoning that the statements of X were reliable. In this connection, the appellate court considered both the findings on that point by two investigating judges and the corroborating evidence, principally the strongly similar statements of the applicant’s ex-girlfriend, and the applicant’s DNA being found on the cigarette butt, in addition to other findings of the criminal investigation. This reasoning, moreover, withstood scrutiny by the Supreme Court, which dismissed the applicant’s first ground of appeal on points of law and confirmed the judgment of the Court of Appeal.
With respect to the procedural measures taken to compensate for the lack of opportunity to directly cross-examine the witness at trial, the Court observes the following. While noting that the principle of immediacy would have been better served if the trial judges had been able to assess X’s credibility by knowing his or her identity and questioning the anonymous witness themselves – or, at the very least, by receiving the full transcript of the questioning by the investigating judge –, the Court notes, however, that the procedure prescribed by Articles 226a to 226f of the CCP, which is specifically intended to provide compensatory procedural safeguards, was followed. That procedure, as applied in Kok, was held to sufficiently respect the rights of the defence in that case. The Court also notes that Article 360 §§ 1 and 4 of the CCP provides an additional procedural safeguard: if a statement by a threatened witness is used as evidence, the trial court is required to give specific reasons as to the reliability of that statement.
Turning to the case at hand the Court notes that the investigating judge V., who had established X’s identity, decided to examine him or her on a secret location which decision was based on a safety assessment provided by the witness protection department on his request. He deemed this measure necessary in order to secure X’s safety. Not only the defence but also the public prosecutor was absent. The witness was put on oath before the interrogation. The questions asked included a large number submitted in writing beforehand by the defence; in addition, after receiving the answers, the defence was offered an opportunity to put further questions in writing to X and, by doing so, to cast doubt on the credibility of his or her testimony.
The Court has recognised that the nature and scope of questions put to an anonymous witness are considerably restricted by reason of that anonymity and that the right to put written questions to such a witness cannot, in particular in the absence of good reasons, be seen as a substitute for the fundamental right to examine witnesses. On the other hand, the Court is equally mindful that in the present case the defence refrained from making use of the opportunity to put additional questions. By this course of action the defence may be considered to have waived the right to challenge the credibility of X’s statements as regards any incoherence in his or her statements or inconsistencies between his or her statements and those of other witnesses. The defence should have been aware that the testimony thus obtained could be used as evidence at trial.
Moreover, the Court notes that the reliability and credibility of X had been assessed positively by investigating judge E. in 2005 and investigating judge V. in 2012, whose independence and impartiality provided an important procedural safeguard for the fairness of the proceedings. The Court notes that while the applicant could have submitted a request to question investigating judges E. and V. at trial on this point, he did not avail himself of that opportunity. In this connection, the Court further notes that questioning investigating judge A. on the reliability of witness X, as requested by the applicant, could not have served as an additional counterbalancing factor because, as explained in the Court of Appeal’s judgment, pursuant to the applicable national law it is the investigating judge examining the threatened witness who is entrusted with that assessment. Lastly, the Court notes that it also follows from the appellate court’s judgment that, with a view to safeguarding the applicant’s right to a fair trial, it examined whether the decision to grant X the status of threatened witness and the way in which the Regional Court sitting in chambers had reached that decision, had involved any violations of fundamental principles.
In the light of the foregoing and considering that X’s statements were not the sole or decisive evidence for the applicant’s conviction, the Court finds the difficulties encountered by the defence in connection with the anonymity granted to X were sufficiently counterbalanced by the procedures applied by the judicial authorities.
Taking into account the particular facts and circumstances of the case, the Court finds that it cannot be said that the criminal proceedings against the applicant, when considered as a whole, were rendered unfair by the admission in evidence of the statements of X. Accordingly, there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention.
CASE OF SNIJDERS v. THE NETHERLANDS (European Court of Human Rights) 56440/15. Full text of the document.