Information Note on the Court’s case-law 39

February 2002

Visser v. the Netherlands - 26668/95

Judgment 14.2.2002 [Section III]

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 referr ed, 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 me t. 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-a ccused 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 examin ation 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 conclusio n, 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 (unani mously).

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.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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