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Report No. 198

(g) European Courts of Human Rights:

The European Court of Human Rights too felt in the cases of Kostovski (1989), Vissier (2002) and Fitt (2000) that if the national Courts felt that anonymity was necessary, the European Court would not interfere. (see para 6.8 of the Consultation Paper)

Summary:

The above case law of various countries, in our view, clearly establishes that the Court has 'inherent power' to pass orders of anonymity in the larger interests of administration of justice. Either the Courts declared they were exercising 'inherent power' or they were otherwise passing such orders presumably under inherent powers. That was on the basis that the Court has inherent power to regulate its proceedings in such a way that administration of justice does not suffer and that as part of that policy, the Court has to balance the right of the accused for open public trial and the right of the accused for cross-examination, in the interests of the victim or accused.

No doubt, the Courts should not easily breach the rights of the accused unless it felt that the interests of the victim or witnesses required that identity or face-to-face confrontation needed to be protected. Though the liberty of the accused and due process are basic, still the rights of the accused are always liable to be balanced against the need for protection of the interests of the victim and witnesses for a fair trial. For that purpose the Court may, under its inherent powers, grant protection to the identity of witnesses, or allow the victim to depose behind a screen or impose a ban on publication of identity of witnesses against the press and media.

The Court may permit the accused to watch the victim while deposing but may screen the accused from the victim. It may allow the witnesses who require protection to depose by closed circuit television so that the Judge and the defence counsel may observe the demeanour of the witnesses. No doubt, in a preliminary inquiry, it has to be proved that such a special order is necessary for protecting the life and property of the victim, witnesses or their close relatives.



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