PROTECTED WITNESS

In criminal proceedings, it is possible to conceal the identity of witnesses who are at serious and imminent risk due to their testimony, along with their family members as specified by law, by placing them under a witness protection program.

The personal information of a protected witness is kept confidential by the Public Prosecutor, judge, or court. Measures to protect the identity or safety of a witness after their testimony is given are governed by the Witness Protection Law No. 5726, dated 27/12/2007. If hearing the witness in the presence of the accused and others poses a severe danger to the witness that cannot be otherwise prevented, or if the disclosure of material facts is at risk, the judge may examine the witness in their absence. During the examination, audio and video transmission may be used, ensuring that the right to question remains intact. However, when the Public Prosecutor hears the witness, their statements are not subject to debate, and no audio or video transmission is made.

The accused must have the opportunity to confront the witnesses and question them; otherwise, their right to defense is restricted. To determine the credibility of a witness, it is essential that they be cross-examined by the accused. However, the protected witness system restricts such confrontation. The European Court of Human Rights (ECtHR) acknowledges the need for anonymity in cases where revealing a witness’s identity poses a genuine threat to them or their family. However, the necessity for anonymity must be supported by objective grounds. To avoid violating the right to examine witnesses and call their own witnesses, the accused must have the opportunity to challenge the credibility of a protected witness, or the court must verify and justify the reasons for keeping the witness’s identity confidential. The ECtHR does not accept mere fear as sufficient; it requires courts to assess whether the fear has an objective basis.

According to the ECtHR, "sole evidence" refers to cases where the conviction relies solely on a single piece of evidence, while "decisive evidence" refers to evidence that significantly influences the outcome of the case. The stronger other evidence is, the less decisive the protected witness’s statement becomes. When a conviction is based solely or decisively on a protected witness’s testimony, procedural safeguards must be meticulously observed. To ensure the reliability of the testimony, balancing mechanisms and procedural guarantees must be in place.

Pursuant to Article 58/2 of the Code of Criminal Procedure (Law No. 5271), a protected witness must explain how they became aware of the events they testify about. This requirement helps assess the credibility of the witness. Although the accused has the right to question an anonymous witness, the fact that their voice and image may be altered under Article 5/1-b of the Witness Protection Law can hinder the evaluation of their reactions, thereby restricting the right to defense. For example, in the case of Visser v. Netherlands, the ECtHR ruled that a conviction based on the statement of a witness whose identity was known only to the judge, and who was not heard in court, with the defense being limited to written questions, violated the European Convention on Human Rights (ECHR). The court found that a fair balance was not achieved between the witness’s safety and the accused’s right to defense, and no substantial justification was provided for maintaining the anonymity of the witness, especially since their statement was taken six years after the incident without re-evaluating the necessity of anonymity.

Additionally, whether the testimony of a protected witness is corroborated by other evidence is of utmost importance. Under the Witness Protection Law, the testimony of an anonymous witness cannot serve as the sole basis for a conviction. A conviction cannot be based solely on the testimony of an anonymous witness unless supported by additional evidence. The presence of multiple protected witnesses does not alter this requirement. A conviction cannot be founded solely on anonymous witness testimony as a distinct category of evidence.

For all evidence to be adequately examined during the trial phase, it must, as a general rule, be presented in an open court session in the presence of the accused. While exceptions exist, a conviction based solely or predominantly on the testimony of a person whom the accused was unable to question during the investigative or trial stages may infringe upon the safeguards provided under Article 6 of the ECHR. If a case relies on a single witness, and the conviction is based exclusively on their statement, that witness must be heard in court, and the parties must be given the opportunity to question them.

Judicial authorities are obliged to carefully examine the claims and evidence presented by the parties. To ensure a fair trial, the principles of equality of arms and adversarial proceedings must be upheld, allowing both parties adequate opportunities to present their arguments and evidence. In this context, all evidence, including witness statements, must be presented and examined under conditions ensuring fairness. Any imbalance or unfairness in the assessment of evidence must be evaluated within the context of the entire trial. Particularly, when a court rejects a party’s request to hear a witness or conduct an expert examination, it must provide clear and consistent reasoning for its decision (ECtHR, Vidal v. Belgium, App. No. 12351/86, 22/04/1992).

Vidal v. Belgium

Application No: 12351/86

Judgment Date: 22.04.1992

"Article 6

Article 6-1

Fair trialEquality of arms

Article 6-3-d

Examination of witnesses

Failure of an appellate court, ruling on referral after cassation, to hear defense witnesses proposed by the accused: violation.

I. Articles 6 §§ 1 and 3(d) of the ConventionArticle 6 § 3(d): The assessment of the necessity of witness evidence is, in principle, left to national courts. This provision does not require the summoning and examination of every defense witness but primarily aims to ensure "equality of arms" in this matter. In this case, the appellate court did not hear any witnesses, neither for the prosecution nor the defense.

However, the concept of "equality of arms" does not exhaust the full scope of Article 6 § 3(d) or Article 6 § 1. It is necessary to assess whether the trial as a whole was fair.

The applicant was acquitted at first instance after hearing several witnesses but was convicted on appeal based solely on the statements of two co-accused individuals (before cassation) or only one co-accused (after referral), as well as the case file documents.

The appellate court rejected, without any reasoning, the request to hear four witnesses. The European Court of Human Rights is not empowered to assess the relevance of the excluded evidence or the guilt or innocence of the applicant, but the appellate court’s silence does not align with the concept of a fair trial, especially given the increased sentence.

Conclusion: Violation of Article 6 (eight votes to one)."

KOSTOVSKI v. THE NETHERLANDS

Application No: 11454/85

Judgment Date: 20 November 1989

"FACTS

The applicant, Slobodan Kostovski, a Yugoslav citizen born in 1953, had a long criminal record in the Netherlands. In 1979, he was convicted of armed robbery at a jewelry store and sentenced to six years in prison.

On 8 August 1981, Kostovski escaped from Scheveningen prison. He was later suspected of involvement in an armed bank robbery in Baarn on 20 January 1982. During the investigation, two anonymous witnesses provided statements implicating him in the crime.

DOMESTIC PROCEEDINGS

1. Trial in Dutch Courts

   - The Utrecht District Court convicted Kostovski based on statements from anonymous witnesses and sentenced him to six years in prison.

   - The Amsterdam Court of Appeal upheld the conviction and sentence, relying on the same anonymous statements.

   - On 25 September 1984, the Dutch Supreme Court rejected his appeal.

2. Application to the European Court of Human Rights (ECHR)

   - Kostovski filed a complaint with the ECHR, alleging a violation of his right to a fair trial under Article 6 of the European Convention on Human Rights.

   - On 12 May 1988, the Commission declared the case admissible.

COURT'S ASSESSMENT

The ECHR found that Kostovski’s right to a fair trial under Article 6 had been violated.

- Right to Examine Witnesses Violated: Kostovski was denied the opportunity to cross-examine or challenge the witnesses against him.

- Use of Anonymous Testimony: The court ruled that convictions based on anonymous witness statements severely restricted the defendant’s ability to mount an effective defense.

The Dutch Government argued that anonymous testimony was necessary to combat organized crime. However, the Court emphasized that the right to a fair trial could not be sacrificed for expediency.

JUDGMENT

1. Violation of Article 6 (Right to a Fair Trial): The Court ruled (17 votes to 1) that Kostovski’s conviction based on anonymous testimony violated his rights.

2. Compensation Postponed: The issue of just satisfaction was left open for further submissions from the parties.

This ruling established an important precedent, restricting the use of anonymous witnesses as decisive evidence in criminal trials.

Summary of the Judgment:

1. Events: The applicants, Marcus Ellis, Rodrigo Simms, and Nathan Martin, were accused of involvement in a shooting in Birmingham in 2002, which resulted in the deaths of two young women. The attack was allegedly gang-related and carried out as an act of revenge.

2. Evidence: The charges were based on statements from anonymous witnesses, phone records, CCTV footage, and the defendants' past gang affiliations. One of the key witnesses, "Mark Brown," claimed to have seen the applicants inside the vehicle used in the attack.

3. Anonymous Witnesses: The prosecution argued that revealing the identity of some witnesses posed a security risk, leading to the use of anonymous testimony. The court ruled that witness protection was necessary but allowed the defense to cross-examine them within specific constraints.

4. Court Decision: The court found the testimony of the anonymous witness, Mark Brown, credible and supported by other evidence. The applicants were found guilty of two counts of murder and two counts of attempted murder and sentenced to life imprisonment.

5. Appeal Process: The applicants challenged their convictions before the European Court of Human Rights (ECtHR), arguing that the use of anonymous testimony violated their right to a fair trial.

6. ECtHR Ruling: The court acknowledged the importance of protecting witnesses but also stressed the need to uphold the defendants' right to defend themselves. It examined whether the anonymous testimony was the sole or decisive basis for conviction and whether sufficient safeguards were in place to ensure a fair trial."

VISSER v. THE NETHERLANDS

Application No: 26668/95

Judgment Date: 14.2.2002

"Article 6

Article 6-3-d

Examination of witnesses

Use at trial of statements made by anonymous witness: violation

FACTS

The applicant was convicted, on the prosecution’s appeal, of having acted as an accomplice in an unlawful detention. In its judgment, the Court of Appeal referred, in particular, to the evidence of an anonymous witness who had identified the applicant from photographs. The conviction was quashed by the Supreme Court, on the ground that the conditions for using the statement of an anonymous witness had not been met. It referred the case to a different Court of Appeal, which instructed the investigating judge to hear the witness. The investigating judge considered that the desire of the witness to remain anonymous – based on fear of reprisals by the applicant’s co-accused and the fact that the charge related to an act of revenge – was justified. Consequently, the applicant’s lawyer remained in a separate room while the witness was questioned by the investigating judge, who included a number of questions submitted by the applicant’s lawyer. The Court of Appeal subsequently convicted the applicant, relying on the statements made by the anonymous witness to the investigating judge as well as various reports and official records. The Supreme Court dismissed the applicant’s further appeal on points of law, accepting the conclusion of the investigating judge that anonymity was justified.

LAW

Article 6 § 3 (d) – The report of the investigating judge, who apparently took into account the reputation of the co-accused, did not indicate how he had assessed the reasonableness of the witness’s fears, either at the time of the original interview by the police or when heard by the investigating judge a considerable time later. Moreover, the Court of Appeal did not carry out an examination of the seriousness and well-foundedness of the reasons for the witness remaining anonymous and in these circumstances the Court was not satisfied that the interest of the witness could justify limiting the rights of the defence to the extent to which they were limited. In that respect, legislation which came into force in 1994 provides for specific safeguards. In addition, the applicant’s conviction was based on the evidence of the anonymous witness to a decisive extent. In the light of that conclusion, it was unnecessary to examine further whether the procedures put in place by the judicial authorities could have sufficiently counterbalanced the difficulties faced by the defence as a result of the anonymity of the witness.

CONCLUSION

Violation (unanimously).

Article 41 – The Court awarded the applicant € 6,000 in respect of non-pecuniary damage and also made an award in respect of costs and expenses."