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Report No. 198

(g) 6.8 European Court of Human Rights

In the European Court of Human Rights, on account of Art. 6 of the European Convention on Human Rights requiring a fair trial to the accused, more importance appears to have been given to the protection of the rights of the accused. Wherever the right of cross-examination of the prosecution witnesses has been denied to the accused by the State Courts, the European Court set aside the convictions and awarded compensation.

While the Court recognized the need to protect anonymity of witnesses in most cases, on facts, in most cases it held that the trial was unfair. The cases in Kostovski (1990), Doorson (1996), Vissier (2002) and Fitt (2002) are the leading cases. If the national Courts felt anonymity was necessary or not necessary in public interest, the European Court, as a matter of principle, would not interfere.

The European Court dealt with the cases arising from various countries in Europe, as detailed below.

6.8.1 Kostovski (1989)

The leading case is the one in Kostovski v. The Netherlands (20.11.1989) of the European Court (1990) 12 EHRR 434. The case concerned more than one accused. So far as Kostovski was concerned, he was born in Yugoslav and had a long criminal history. He had escaped from prison in the Hague and was alleged to have conducted an armed raid of a bank and made off with currency and cheques. While so, the Amsterdam police got a phone call from a man who said that three persons (Stanley Hills, Paul Molhoct and a Yugoslav who had escaped from prison in the Hague) conducted the robbery.

On 26.1.82, the man gave a statement to the police and wanted his name not to be revealed. On being shown photographs, he identified the accused as Kostovski. He gave details of their hideout. On 23.2.1982, another person gave yet another statement and wanted to be anonymous. On 1.4.82 the accused were arrested. The Magistrate examined the latter person who gave statement on 23.2.82, as above stated, in the presence of the police but in the absence of the public prosecutor and Kostovski and his counsel.

The Magistrate who did not know the identity of the witness, considered that the apprehension of the witness as to safety was well-founded and allowed the witness to be anonymous. The Magistrate sent copies of the statement to the Counsel for the various accused and asked them to submit their written questions and informed that they would not be invited to the hearing before him. Kostovski's lawyer submitted 14 questions to be given to the witness.

The Magistrate's deputy interviewed the witness, the police were present but not the public prosecutor nor the Counsel for Kostovski nor the accused. The witness gave answers to the questions. Similar procedure was adopted in the matter of the other accused.

On 10.9.82, a single hearing took place before the District Court. The Magistrate, his deputy and the police who had earlier conducted the interview, were all examined. The Court did not, in view of Art 288 of the Code of Criminal Procedure (Netherlands), permit questions designed to clarify the anonymous witness's reliability and sources of information, which could otherwise have revealed. The Magistrate gave evidence that he was satisfied about the genuineness of the fear of reprisal.

The anonymous witnesses were not heard at the trial. The official reports drawn up by the police and the examining Magistrate were used as evidence. The sworn statement of one of the anonymous witnesses to the Magistrate was read out and treated as statement of a witness at the trial under section 295. The District Court convicted the accused.

The Court of Appeal in Netherlands heard the witnesses. They stood by their testimony. It did not allow questions to be put by the defence which would have revealed their identity. The Court of Appeal did not hear the anonymous witnesses but considered the contents of the statement. It accepted that the fear of reprisal was genuine. It confirmed the conviction.

The appeal to the Supreme Court in Netherlands was dismissed on 25.9.84 and it also held that in spite of Art. 6 of the European Convention, a Judge was not precluded, if he deemed it necessary for the proper administration of justice, from curtailing to some extent, the obligation to answer questions and notably, the one relating to identity of witnesses.

The European Court observed that the case was processed under a 1926 law, namely, the Netherlands Code of Criminal Procedure, 1926. It referred to various provisions thereof and as to how a Court, under that law, could convict an accused on previous statement recorded or official reports of the investigating officer. The Court referred to a 1926 judgment of the Netherlands' Supreme Court which permitted such statements/reports as evidence. Since then, in majority of cases, witnesses were not being examined at the trial. The European Court referred to a 1984 Report of a Commission in that country which recommended that statement of anonymous witnesses should not be treated as evidence and to the fact that a Draft Bill was pending legislation.

The European Court said that the procedure followed in the case offended principles of a fair trial under Art. 6 of the European Convention and that even though anonymity was given, these witnesses were not examined at the trial and the Court could not observe their demeanour nor test their reliability. Even before the Magistrate, neither the accused or his counsel were present. The examining magistrates were also unaware of the identity.

The European Court held the procedure was unfair. It held that while at the stage of investigation, the police could get information from anonymous informants, however, at the trial, the use of the previous statements as evidence to form a conviction, was bad in law. The Court allowed the appeal.

By a separate judgment dated 29.3.90, the European Court held that under Art 50 of the Convention, Kostovski was entitled to compensation for detention that was not valid. The amount of compensation was, however, settled by agreement.

6.8.2 Windisch v. Austria: (1991) 13 EHRR 281

This was a case of burglary by the accused and two witnesses were allowed to identify the accused from a distance, while the accused was allowed to hold a handkerchief in front of his face. The police officers recorded the statements of the two anonymous witnesses but their identity was not disclosed to the Court. The accused's request to summon them for cross-examination but the request was rejected because the witnesses feared retaliation. The conviction was appealed against.

The European Court referred to Art. 6 of the Convention and to Kotoskovi. It held that there was no fair trial. The argument that the accused could have put written questions was held to be not acceptable as it was not equivalent to production of witnesses before the Court. The trial Court too was not aware of their identity. It could not watch their demeanour as they were never produced before the Court nor could the Court determine their reliability. The police officer's evidence was not sufficient. In this case also, the Court also awarded monetary compensation.

6.8.3 Delta v. France: (1993) 16. EHRR 574.

The appellant was accused of snatching a chain and a crucifix from two girls at an underground railway station. He was arrested and the two girls immediately identified him. The appellant pleaded he was not guilty and the snatching was done by somebody else. The police later interviewed the girls, they reiterated their earlier version. The girls did not turn up the trial. The accused was convicted by the trial Court in France.

On appeal, the European Court referred to the fact that subsequent to the order of conviction under appeal, the Paris Court of Cassation had departed from its previous view and held that evidence was necessary at the trial unless a clear case was made out about intimidation, pressure or reprisals.

The European Commission decided that the trial was vitiated and granted compensation.

6.8.4 Isgro v. Italy: (1991) Yearbook of European Convention on Human

Rights, 155.

This was also a case where the person (Mr. D) (not anonymous) who gave the statement to the police was not traceable at the trial and did not examine himself at the trial. The trial Court held that, Kostovski was distinguishable, that the accused had opportunity to question Mr. D before the investigating judge but that he did not do so. Thereafter, the accused was committed to trial. At the trial, the witness was not traceable but the accused was convicted.

The European Court held that, on facts, there was no violation of Art. 6 but still in certain situations, the previous statements of witnesses could be relied upon and that this case was one such. The conviction was confirmed.

6.8.5 Doorson v. The Netherlands: (26.3.96)

The case arose from Netherlands and concerned the appellant, who was alleged to be a drug-dealer. The police, on information received, showed photographs of drug dealers to certain drug-addicts (along with photographs of innocent persons) and upon identification of appellant by several drug-addicts, started investigation. Several persons who wanted to be anonymous did not turn up. However, three persons (one who disclosed his name but was not a clear witness and two other anonymous witnesses) gave statements. The named witness's evidence was not acted upon.

At the stage of appeals.- upon a finding being called for, the investigation Judge who investigated a second time (in the presence of the counsel for accused .- felt that the evidence of the two persons as to their safet.- one was earlier attacked by a drug-dealer in another cas.- was genuine and their anonymity was essential. The European Court referred to Kostovski case and held that the right to disclosure of identity was not absolute.

It pointed out that though on the earlier occasion the witnesses gave evidence when counsel for the accused was not present, the second tim.- when the appeal Court called for a fresh findin.- the witnesses were examined in the presence of the counsel for accused and he was permitted to put questions. Where the life, liberty or security of witnesses may be at stake, the rights of the accused and of the victims/witnesses have to be balanced by the Court. Finally, on facts, it was held that there was no violation of Art. 6 (Court here referred to the new statutory Rules of Netherlands, 1993).

6.8.6 Van Michelen & others v. The Netherlands: (23.4.97)

The case which again arose from Netherlands related to robbery and murder and chase by police officers and ultimate arrest of the accused. The police officers claimed anonymity on the ground of danger to their lives. This was granted and they gave evidence in the presence of the investigating Judge in a separate room from which the accused and even their counsel were excluded. The counsel for accused was thus precluded from watching the demeanour of witness and they could only hear the audio-track.

They were not able to test the reliability of witnesses. The European Court observed that it had not been explained as to why it was necessary to resort to such extreme limitations on the well-known rights of the accused to have evidence given in their presence or as to why less-far reaching measures were not employed. It was held that the Court of Appeal did not assess the reliability of the evidence as to reprisals. The evidence consisted of the statements of the anonymous police officers and nothing else. The conviction was set aside and compensation was awarded.

6.8.7 Vissier v. The Netherlands: (14.2.2002)

This was a case of an anonymous witness from Netherlands. The appellant Vissier and another Mr. D were the accused. The facts were that one Mr. A told police on 30.9.87 that he had been kidnapped on 30.9.87 and was beaten up by two unknown persons, that he suspected that they had acted on the orders of one Mr. G. He complained this was an act of revenge because of allegations of burglary that Mr. A was supposed to have made earlier against Mr. G. Thereafter, preliminary judicial investigations were made in April 1988 into the allegations. On 28.4.88, two police officers prepared a report on the kidnapping and assault of A.

The report stated that a number of witnesses had seen Mr. G and two other persons in bar-restaurants in a town on the previous night 29-30 Sept. 1987 and these witnesses had overheard that the three men were making inquiries about the whereabouts of A. A was said to know G well and to be afraid of G. Police investigations showed that Mr. G was a person who instilled fear in others. The witnesses who had seen the two accused on the previous night and on the date of the alleged commission of offence, were not willing to make written statements because of fear of G.

However, police said that four witnesses were confronted through a two-way mirror in the presence of the accused Vissier and his co-accused D but they found that the witnesses feared Vissier and D and wanted to leave the room as soon as possible. None of the four witnesses identified the two accused although one said Vissier looked similar to one of the perpetrators. Later, witnesses were interviewed separately and one of them, a lady, recognized one of the perpetrators but she wished to be anonymous. A fifth witness reported that he recognized D from photographs as being the person who, after midnight 29-30 Sept. was trying to find out the whereabouts of Mr. A, the victim who was later kidnapped and beaten up on 30th.

The police also said that one of the witnesses reportedly called the police to say that the witness wanted to withdraw the statement, because of fear. The police were satisfied about the danger to the witness.

The trial court acquitted Vissier and Mr. D of the charge of kidnapping and beating but Vissier was convicted on another charge. On appeal, by Vissier as well as State, Vissier was convicted of the charge of kidnapping and beating Mr. A and convicted. (There was no appeal by State against acquittal of Mr. D). On further appeal, the Supreme Court in Netherlands set aside the conviction of Vissier because the statement of the anonymous witness was not taken down by the Judge after being told about the identity of the witness and the reliability of the witness was not proved.

The matter was remanded to the appellate court which directed the trial judge to hear the witness (who had previously recognized A, the accused by the photographs). If need be, the witness was to be heard by taking measures to protect the anonymity of the witness.

On 13.9.93, the witness was heard by the trial judge who was aware of the identity. He directed anonymity to be maintained.

Counsel for accused attended when the complainant was interviewed by the Judge and the Judge also put questions suggested by the said counsel.

The Counsel for accused gave questions in writing, these were put by the Court to the witness. Counsel was allowed to read the replies of the witness and to suggest further questions to be put by the Judge but this later opportunity was not availed of. One of the earlier questions by Counsel related to the photographs shown by police to the witnesses for identifying the accused. The investigating judge also found witness reliable.

On 29.9.93, the appellate Court convicted the appellant. It relied upon the statement by the witness now made to investigating Judge and did not rely on the earlier statement of witness recorded by the police. It, however, did not give any finding on the need for anonymity or on the reliability of the witness.

On further appeal, the Supreme Court of Netherlands, by judgment dated 7.6.94, dismissed the appellant's appeal against his conviction.

On further appeal, the European Court allowed the accused's appeal holding that the trial was not fair. It held that the Court of Appeal did not carry out an examination into the well-foundedness of the reasons for the anonymity of the witness. The investigating Judge too did not indicate how he assessed the reasonableness of the personal fear of the witness, whom he was hearing six years after the incident. It relied upon Kok v. The Netherlands dt. 4.7.2000 (2000) Vol. 6, EHRR). It also awarded damages.

6.8.8 Fitt v. UK: (16.2.2000)

The appellant was accused of conspiring with C (driver of appellant's car) and one S, to rob the Royal Mail Van; C pleaded guilty. The trial judge directed summary of C's statement to be given to the defence.

Accused gave evidence at trial. He said the bundles of currency were given to him by one D.W from whom C was buying a car and at C's instance, appellant buried the bundles at a place in the cemetery. He claimed he had been falsely implicated. He denied knowledge of the robbery.

The trial judge gave the accused only the summary of C's statement omitting the references to all sources of information. Before passing an order, the counsel for accused was not heard. The omission of details of the confessional statement of C was by an ex parte order. Still, the trial judge convicted him. On appeal, it was stated, that C was now found to be a regular informer to the police in several case.- 88 such cases for rewar.- and the information C gave implicating the appellant was false. The conviction was maintained in the Court of Appeal. The accused moved the European Court.

On appeal, the European Court upheld the conviction holding that the trial was fair since the trial judge, who decided the question of disclosure of evidence, was aware of both the contents of the withheld evidence and the nature of the appellant's case, and was thus able to weigh the applicant's interest in disclosure against the public interest in concealment. While the trial must be fair, the "entitlement to disclosure of relevant evidence is not an absolute right.

In criminal proceedings, there may be competing interests such as national security or the need to protect witnesses at risk of reprisals or very secret police matters of investigation of crime, which must be weighed against the right of the accused (Doorson v. Netherlands: (26.3.1996). In some cases, it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individuals or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Art. 1. (Van Mechelen v. Netherlands: 23.4.97)."

When the evidence is withheld on public grounds, it is not the role of the (European) law to decide whether or not such disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence. It observed in Fitt:

"In any event, in many cases, such as the present one, where the evidence in question has never been revealed, it would not be possible for the Court to attempt to weigh the public interest in non-disclosure against that of the accused in having sight of the material."

Here the defence were told that the information given by C which was withheld related to the sources of information. In the absence of the defence, no doubt, the prosecutor explained to the Judge regarding the source of information that was not being disclosed. The material which was not disclosed formed no part of the prosecution case whatever and was never put to the jury.

"The position must be contrasted with the circumstances addressed by the 1997 Act and the 1998 Act, where impugned decisions were based on material in the hands of the executive, material which was not seen by the supervising Court at all."

The trial judge was fully versed in all the evidence and he did say on 23 rd March that he would have directed disclosure of sources if it might have helped the accused. The Court's procedure was fair. The Court made an elaborate reference to the 1992 Attorney General guidelines and to R v. Ward 1993 (1) WLR 619 and other UK cases, referred to by us in the discussion under UK law.

The appeal against conviction was dismissed.

6.8.9 Rowe and Davis v. UK: (16.2.2000)

This case arose from UK and was one relating to robbery and infliction of injuries on various persons in two incidents. The European Court referred to the same English domestic law and statutes referred to in Fitt. But unlike there, here, on facts, it held there was no fair trial since the information was withheld by the prosecution without notifying such nondisclosure to the Judge. Such a procedure, whereby the prosecution itself attempts to assess the importance of concealed information to the defence and weigh this against public interest, cannot be said to be within Art. 6 of the Convention. Same principle was applied in R v. Ward by the Court of Appeals in UK.

It is true that the prosecution counsel notified the defence that certain information had been withheld and this was in the Court of Appeal, and that Court had reviewed the undisclosed evidence in ex parte proceedings with the benefit of submissions from the Crown but in the absence of the defence and had decided in favour of nondisclosure. Before non-disclosure was decided, the trial court was not asked to scrutinize the withheld information.

The Court of Appeal had only perused transcripts of the Crown Court hearings and not the basic material. It could also have been influenced in the ex parte proceedings for non-disclosure before it, by the jury's verdict on the guilt. The prosecution's failure to lay the evidence in question before the trial judge to permit him to rule on the non-disclosure deprived the appellant of fair trial. The conviction was set aside and compensation was awarded.

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