Information Note on the Court’s case-law 20

July 2000

Kok v. Pays-Bas (dec.) - 43149/98

Decision 4.7.2000 [Section I]

Article 6

Article 6-3-d

Examination of witnesses

Use of statements made by anonymous witness in convicting an accused: inadmissible

The applicant was arrested and placed in police custody on the charges of belonging to a criminal organisation and of possessing drugs and arms. His arrest resulte d from a search by the police of premises which he used for storing cocaine and weapons. The search was prompted by revelations made by an informant whose name was kept secret. Prior to this action, the police had also searched a car in which had been foun d, inter alia , a forged driving licence with the applicant’s photograph, an unopened letter addressed to him and keys which later turned out to correspond to the door of the searched house. Criminal proceedings were initiated against the applicant. The inv estigating judge ordered that the identity of the informant, who was to be heard as a witness, remain secret. The judge, relying on the informant’s arguments as well as on police information, considered that reprisals were highly probable should his or her identity be divulged. After questioning the informant, the judge considered him or her as being reliable. The informant took the oath before questioning, which took place in a room where neither the defence nor the prosecuting authorities were present. A large number of the questions had been submitted beforehand in writing by the defence, which was also able to submit further questions during questioning, which they followed through a sound link. The answers were repeated by the witness once it had been e nsured that his or her anonymity was not jeopardised. The applicant’s appeal against the decision to keep the witness’s anonymity was dismissed by the Regional Court after having been discussed in open court. He was convicted and sentenced to imprisonment. His appeal against sentence was unsuccessful, as was his subsequent appeal on points of law.

Inadmissible under Article 6 § 1 and § 3 (d): Using statements of an anonymous witnesses to found a conviction is not under all circumstances incompatible with th e Convention. In cases where the anonymity of witnesses is maintained, the handicaps which weigh on the defence must be counterbalanced by the procedures followed by the judicial authorities. Moreover, a conviction should not be based solely or to a decisi ve extent on anonymous statements. In the instant case, although the precise grounds of the anonymous witness’s fears were not revealed, their well-foundedness was investigated by the investigating judge, who relied on information provided by both the witn ess and the police. Her decision that the informant’s anonymity should be preserved was reviewed and upheld on appeal. Given that the applicant could reasonably be suspected of membership of a criminal association and that he was arrested armed with a pist ol, he could be perceived as a threat by people aware of his dealings, such as the informant. Thus, there were sufficient reasons for keeping secret the latter’s identity. Furthermore, other elements of evidence than the statements of the anonymous witness were taken into account, e.g. official police reports of the arrest and the searches of the car and the house. Therefore, the applicant’s conviction was not exclusively or to a decisive extent based on the anonymous witness’s evidence. As to whether the s pecific procedures of the witness’s questioning were sufficient to counterbalance the difficulties borne by the defence, the investigating judge assessed the witness’s reliability and gave a reasoned opinion, which the defence was able to question in open court. The witness’s questioning was organised in accordance with law. Not only the defence but also the prosecuting authorities were absent from the room where it took place. The defence was able to submit written questions in advance and could ask furthe r questions during the questioning which they followed through a sound link. The witness’s answers were repeated when they did not threaten his or her anonymity. Finally, the informant was under oath. Therefore, the witness’s interrogation appeared to be f air to the defence: manifestly ill-founded.

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

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