European Court of Human Rights - case of Kostovski v. The Netherlands (1989) (excerpts)

European Court of Human Rights - case of Kostovski v. The Netherlands (1989) (excerpts)

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41.   In principle, all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument (see the above-mentioned Barberà, Messegué and Jabardo judgment, Series A no. 146, p. 34, § 78). This does not mean, however, that in order to be used as evidence statements of witnesses should always be made at a public hearing in court: to use as evidence such statements obtained at the pre-trial stage is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6 (art. 6-3-d, art. 6-1) provided the rights of the defence have been respected.

As a rule, these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings (see, mutatis mutandis, the Unterpertinger judgment of 24 November 1986, Series A no. 110, pp. 14-15, § 31).


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43.   Furthermore, each of the trial courts was precluded by the absence of the said anonymous persons from observing their demeanour under questioning and thus forming its own impression of their reliability. The courts admittedly heard evidence on the latter point (see paragraphs 17 and 19 above) and no doubt - as is required by Netherlands law (see paragraph 32 above) - they observed caution in evaluating the statements in question, but this can scarcely be regarded as a proper substitute for direct observation.

It is true that one of the anonymous persons was heard by examining magistrates. However, the Court is bound to observe that - in addition to the fact that neither the applicant nor his counsel was present at the interviews - the examining magistrates themselves were unaware of the person’s identity (see paragraphs 15-16 above), a situation which cannot have been without implications for the testing of his/her reliability. As for the other anonymous person, he was not heard by an examining magistrate at all, but only by the police (see paragraphs 11 and 17 above).

In these circumstances it cannot be said that the handicaps under which the defence laboured were counterbalanced by the procedures followed by the judicial authorities.

44.   The Government stressed the fact that case-law and practice in the Netherlands in the matter of anonymous evidence stemmed from an increase in the intimidation of witnesses and were based on a balancing of the interests of society, the accused and the witnesses. They pointed out that in the present case it had been established that the authors of the statements in question had good reason to fear reprisals (see paragraph 19 above).

As on previous occasions (see, for example, the Ciulla judgment of 22 February 1989, Series A no. 148, p. 18, § 41), the Court does not underestimate the importance of the struggle against organised crime. Yet the Government’s line of argument, whilst not without force, is not decisive.

Although the growth in organised crime doubtless demands the introduction of appropriate measures, the Government’s submissions appear to the Court to lay insufficient weight on what the applicant’s counsel described as "the interest of everybody in a civilised society in a controllable and fair judicial procedure". The right to a fair administration of justice holds so prominent a place in a democratic society (see the Delcourt judgment of 17 January 1970, Series A no. 11, p. 15, § 25) that it cannot be sacrificed to expediency. The Convention does not preclude reliance, at the investigation stage of criminal proceedings, on sources such as anonymous informants. However, the subsequent use of anonymous statements as sufficient evidence to found a conviction, as in the present case, is a different matter. It involved limitations on the rights of the defence which were irreconcilable with the guarantees contained in Article 6 (art. 6). In fact, the Government accepted that the applicant’s conviction was based "to a decisive extent" on the anonymous statements.