EHRM, 06-02-2024, nr. 56440/15

On 8 October 2002 at around 8.45 A.M. the police discovered on a parking lot the body of a man (‘Y.’) in the driver's seat of a van who was found to have been shot and killed shortly before. A police forensic team immediately examined the scene and found amphetamine residues in the van and, approximately 50 metres from the body, a cigarette butt which, given its state and the weather conditions at the time, must have been discarded within twelve hours before Y.'s body was found.

From a report drawn up on 28 January 2003 by an expert of the Dutch Forensic Institute it followed that the DNA profile found on the cigarette butt matched with the DNA profile found on sunglasses that had been left behind on 23 November 2001 after a theft committed with violence. The DNA profile did not appear in the DNA database. As the murder was not solved by the criminal investigation, that investigation was closed in 2003.

On 8 April 2005 the investigating judge (rechter-commissaris; ‘investigating judge E.’) at the Regional Court (rechtbank) of 's‑Hertogenbosch examined under oath a witness (‘X’) about Y.'s murder. Prior to questioning, X had stated that he or she knew who had committed Y.'s murder and that he or she would be willing to make a statement only if granted anonymity, because he or she would have reason to fear for his or her life if it became known that he or she was the source of this information. The investigating judge E. heard X in accordance with Article 190 § 2 of the Code of Criminal Procedure (Wetboek van Strafvordering; ‘the CCP’ — see paragraph 34 below), which entailed that he did not ask X to state at the beginning of the hearing his or her personal details and that he gave reasons for preventing the disclosure of that information in the official record of the examination. X stated that the applicant had told him or her that he had murdered Y. and that he had been hired to do so by someone to whom Y. owed money for a drugs deal. X provided details about the murder which the applicant had told him or her. Those details, which had not been disclosed through the media, matched with factual details at the crime scene. According to investigating judge E., X appeared credible because his or her statement was given unequivocally, spontaneously and without hesitation.

In 2008 the applicant's DNA profile — which had been entered in the DNA database earlier that year — was found to match the DNA profile on the cigarette butt that had been found near Y.'s body. After the criminal investigation into Y.'s murder was reopened, the police interviewed a number of witnesses including the applicant's ex-girlfriend on several occasions. The first witness interview with her took place on 5 November 2009. At that moment the applicant was detained in relation with other criminal acts (four armed bank robberies committed in Germany in 2005 for which he was convicted in 2006 to nine years' imprisonment). She stated that the applicant had told her that, and how, he had committed the murder on a young man in a van after the organisation run by the person who had hired him had been cheated in a drugs deal. He had also told her about another murder that he had committed to settle a debt with someone. She stated that she had been repeatedly ill-treated by the applicant and threatened by him with a gun and that she was afraid of him. They broke up in 2005. Measures were taken to contribute to her safety. In February 2010 the applicant was arrested, in prison, on suspicion of involvement in Y.'s murder.

At a preparatory hearing (pro-forma zitting) on 3 June 2010, the 's‑Hertogenbosch Regional Court granted a request by the applicant for the examination of X and referred the matter to the investigating judge.

On 20 October 2010 the public prosecutor (officier van justitie) made an application to the investigating judge that X be examined as a threatened witness (bedreigde getuige) pursuant to Article 226a of the CCP (see paragraph 35 below), claiming that it was reasonable to assume in the light of the nature of the crime, the identity of the applicant, the applicant's use or threats of violence as described in a police report of 12 October 2010, and his criminal record — including, among other things, the commission of opium offences, violent crimes and property offences, committed with the application of violence — that X's life, health or safety were at risk, and that X did not wish to make a statement because of this threat.

By a decision of 16 August 2011, the investigating judge (‘investigating judge A.’), after hearing (separately) the public prosecutor, the applicant and his counsel and X, assisted by his or her counsel, dismissed that application, noting that it was not apparent why the Public Prosecution Service (Openbaar Ministerie) had considered in 2005 that X was to be examined as a witness in accordance with Article 190 of the CCP, whereas it now believed that he or she should be examined pursuant to Article 226a of the CCP. The appeal against that decision lodged by the public prosecutor, acting on X's behalf, was upheld by a decision of 21 September 2011 of the Regional Court sitting in chambers (raadkamer). It found that the decision of investigating judge A. not to grant X the status of threatened witness had been insufficiently reasoned and directed investigating judge A. to reconsider the public prosecutor's application and make a fresh decision.

On 11 October 2011 investigating judge A. again decided against granting X the status of threatened witness, which decision was again appealed by the public prosecutor.

On 9 November 2011, a three-judge chamber of the 's‑Hertogenbosch Regional Court, after hearing X's lawyer and the public prosecutor in camera, upheld the appeal and itself granted X the status of threatened witness under Article 226a of the CCP.

In doing so, the court took into account the following factors:

Finally, the court held that a new situation had arisen once the applicant had become aware of the existence of this statement and the defence's request to examine X had been granted by the court, and that X could not reasonably have anticipated either the course of action that would be taken by the defence in the proceedings or the other results of the criminal investigation. The fact that the incriminating statement of X had become important in evaluating the overall evidence in this case was enough to make it plausible that a threat previously perceived as fairly general had now become a serious issue. It concluded that in these circumstances a witness was entitled to the protection of Article 226a of the CCP.

On 2 March 2012 X was examined by the investigating judge (‘investigating judge V.’) as a threatened witness in accordance with Articles 226c to 226f of the CCP (see paragraph 35 below). After the judge had taken note of the threat assessment regarding the safety of X, provided by the witness protection department at his request, he decided it to be necessary for ensuring that X's identity remained concealed to hear X at a secret location and that neither the applicant and his counsel, nor the public prosecutor could be present at the examination (see Article 226d §§ 1 and 2 of the CCP in paragraph 35 below). In order to safeguard the parties' interests as much as possible, the applicant and the public prosecutor were provided the opportunity to submit questions in writing to be addressed to witness X. In view of X's status of threatened witness, the substance of his or her statement in 2005 and the outcome of the threat assessment, the investigating judge considered that the interests of the safety and protection of X should take precedence over the interests of the applicant in being able to examine X directly.

Prior to the examination of X, the public prosecutor had submitted one written question — whether X wished to confirm his or her statement from 2005 (which was answered affirmatively) — and the applicant had submitted twenty-five, all of which were put to X by investigating judge V. and answered by X under oath. In the interests of protecting the identity of X, the answers to some of the applicant's questions were not, or not fully, included in the official record of the examination. Investigating judge V. sent the official record of the examination to the applicant and public prosecutor and gave them the opportunity to submit further questions to X, but neither made use of that opportunity.

According to the official record X confirmed to stand by his or her statement from 2005 (see paragraph 7 above). Further, in reply to questions, he or she answered, amongst other things, that before the applicant had told him or her about the murder, he or she had not heard about that murder in any way; that he or she was troubled by the fact that he or she had knowledge of a murder of which he or she knew who the murderer was and had gone to the police in 2005 for that reason; that he or she had received no reward for making that statement; that he or she knew the applicant as a nice person, but that in terms of criminal activities he had no conscience and heart; that he was money-hungry; that he had a narrow build, grey hair, a narrow face and was about 1.80 to 1.90 metres tall; and that he or she had never spoken about this case with the applicant's ex-girlfriend.

Investigating judge V. noted in the official record that before examining the witness he had established X's identity. He further noted that he had assessed the credibility of X by asking questions about his or her life and personal situation and that he considered that X was a reliable witness in view of his or her spontaneous manner of answering and consistency with the previous statement from 2005.

In a judgment of 9 July 2012 (ECLI:NL:RBSHE:2012:BX0827) the Regional Court convicted the applicant for the murder of Y. and sentenced him to eighteen years' imprisonment. It held that the statements of X were sufficiently credible, consistent and reliable to be used as evidence. In that connection the court considered that both in 2005 and 2012 the investigating judges had assessed X' statements as reliable, that X's statements were consistent and detailed and that they were corroborated in essential respects by both the findings of the criminal investigation and the statements of the applicant's ex-girlfriend. It noted that X had declared under oath that he or she had had no contact with the applicant's ex-girlfriend about this case. It also noted that their statements contained information about the crime which they could not have learned from the media (a notable example was that both stated that Y. was not the actual target), that the statements by X were not the sole or decisive evidence on which it relied for the guilty verdict, and that sufficient measures had been taken to compensate for the limitation of the defence's right to examine witnesses.

The applicant appealed against that judgment to the 's‑Hertogenbosch Court of Appeal. During a preparatory hearing held on 14 November 2012, the applicant's lawyer confirmed to the court that the defence had been given the opportunity by investigating judge V. to submit further questions to X (see paragraph 16 above). He added that since the answers to some of the questions had been redacted in the official record, he had not considered it useful to submit further questions to X.

By judgment of 2 April 2014 (ECLI:NL:GHSHE:2014:943), the Court of Appeal quashed the judgment of the Regional Court as it did not rely on exactly the same evidence, convicted the applicant for the murder of Y. and sentenced him to eighteen years' imprisonment. The conviction was based on twenty items of evidence, including the DNA profile found on the cigarette butt, the witness statements of the applicant's ex-girlfriend and the witness statements of X.

In its judgment it dismissed the applicant's request that investigating judge A. be examined as a witness in order (1) to assess whether the Regional Court sitting in chambers had had grounds to confer upon X the status of threatened witness (see paragraphs 13–14 above), and (2) to examine X's credibility. Regarding the granting of the status of a threatened witness to X, the appellate court referred to a judgment of the Supreme Court of 30 June 1998 (see paragraph 42 below) which held that such a decision could not be re-examined by the trial court unless the manner in which the decision had been taken or the contents of that decision had been so fundamentally defective that the use by the trial court of the results of the subsequent questioning would violate the right of the accused to a fair trial as guaranteed by Article 6 of the Convention. In that connection, the Court of Appeal considered as follows:

Regarding the second ground put forward in the request to hear investigating judge A., the appellate court considered as follows:

The Court of Appeal proceeded by examining whether the statements of X could be used in evidence:

The Court of Appeal then assessed the reliability of the statements of X. The statement of X from 2005 was quoted in full in the judgment. The appellate court noted that, according to investigating judge E., X had appeared credible during the examination in 2005 because he or she had given his or her statement unambiguously, spontaneously and without hesitation. The appellate court also noted that in 2012 investigating judge V. had found that X had appeared credible because of his or her spontaneous manner of answering questions and the consistency of his or her statements with those made in 2005. It found no indication that X had fabricated or changed parts of his or her statements and held that the statements were corroborated in multiple respects by the findings of the criminal investigation and contained information which had not appeared in the media. In particular, the court noted that when speaking of a ‘Jan Snijders’ in his or her statements, X had obviously referred to the applicant (given the details provided about the applicant's address and mobile phone number); that X had provided pertinent details about the place and time of Y.'s murder and the number of shots fired at him (which corresponded with other witnesses' statements who had been near the crime scene and had heard the shots, with temperature readings of the victim's body, and with the number of bullet casings found); and that X had stated that the applicant had used the money he had received for Y.'s murder to go on a holiday to one of the Canary Islands in late 2002 (which corresponded with the applicant's statement that he and his ex-girlfriend had made that holyday trip, with statements of other witnesses who confirmed this, and with the ex-girlfriend's cash withdrawals on that island during that period). The Court of Appeal also recognised that in a few respects X's statements did not correspond with the findings of the investigation, but it held that logical explanations could exist for these inconsistencies. In this respect, the court, inter alia, noted that X's statement that the victim had been left on the passenger's seat whereas he was found on the driver's seat and that the door of the van had been closed whereas when the police arrived the door was locked, could be explained by the fact that it followed from the forensic investigation that the body of the victim had evidently been moved after his death. The court considered that it was conceivable that the door had locked automatically or had been locked by the applicant (by reaching through the open window) after he had opened and then closed the door.

The Court of Appeal noted further that the statements of X corresponded in many essential respects with those of the applicant's ex-girlfriend, which it also considered reliable as they were highly detailed, had been made spontaneously, were corroborated by the statements of other witnesses and the applicant, and included information that had not appeared in the media. The applicant's ex-girlfriend's statement that one evening the applicant wanted them to watch the TV show ‘Opsporing Verzocht’ — a show in which the police ask the public for help solving crimes — which covered the murder of a young Moroccan man, and that the applicant told her that he had done it, was, for instance, corroborated by what the appellant had stated himself to the police on 20 May 2010, namely that when they were watching the ‘Opsporing Verzocht’ covering Y.'s murder, he had warned her to never be nasty (vervelend) to him because otherwise it would be her turn as well (anders kom jij ook aan de beurt). The Court of Appeal further took into account that the applicant's ex-girlfriend had been examined as a witness by the investigating judge in the presence of the applicant's counsel, with the applicant following the examination via video link, and that both had had the opportunity to cross-examine her directly and test her credibility. The appellate court also explicitly noted that X and the applicant's ex-girlfriend were not the same person and that there were therefore two separate witnesses, each of whom had stated independently that the applicant had confessed to killing Y.

Finally, the Court of Appeal held that the cigarette butt with the applicant's DNA proved that he had been very close to the scene of the crime within twelve hours before Y.'s body had been discovered on 8 October 2002 and that the applicant had provided no consistent or credible exonerating explanation. The court concluded that the alternative scenario submitted by the defence — according to which someone else had killed Y. and the applicant had discarded said cigarette butt after going for a run with S. that morning near the place where Y.'s body was found — was rebutted by the content of the evidence used, which the court found reliable. In that connection the court also noted, inter alia, that S., when heard as witness, had indicated that he always went running with the applicant in the afternoon.

On 21 November 2014 the applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad). The applicant, firstly, complained that contrary to Article 6 of the Convention, the Court of Appeal had based the conviction for the proven offence to a decisive extent on the statement of X and that insufficient measures had been taken to compensate for his inability, or insufficient ability, to cross-examine him or her. Secondly, the applicant complained about the dismissal of his requests for investigating judge A. to be examined.

In an advisory opinion of 7 April 2015, the Advocate General (Advocaat-Generaal) at the Supreme Court recommended that the appeal on points of law be dismissed. Regarding the complaint under Article 6 of the Convention, the Advocate General, firstly, summarised the relevant general principles set out in the Court's case-law and the assessment framework used by the Supreme Court which was modelled on that case-law and, next, applied the so-called ‘Al-Khawaja and Tahery-test’ (Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011), noting that since X had been given the status of threatened witness — which the applicant had not complained about in his grounds of appeal on points of law — there could be no doubt that there was a good reason for the non-attendance of this witness, that the finding of the Court of Appeal that X's statements were not ‘sole or decisive’ for the conviction of the applicant was not incomprehensible or inadequately reasoned, and that the question of whether sufficient compensating measures had been offered for the lack of opportunity to question the threatened witness directly did not require further considerations because, after all, that standard applied only to those cases where the conviction was based ‘solely or to a decisive extent’ on the statement of the absent witness.

By judgment of 16 June 2015 (ECLI:NL:HR:2015:1664) the Supreme Court dismissed the appeal on points of law. It dismissed the first ground of appeal on points of law because the grievance could not lead to cassation of the impugned judgment. Based on section 81 (1) of the Judiciary Act (Wet op de rechterlijke organisatie), this required no further reasoning as the grievances did not give rise to the need for a determination of legal issues in the interest of legal uniformity or legal development. As regards the second ground of appeal on points of law, the Supreme Court referred to its judgment of 30 June 1998 (see paragraph 42 below) and found that the Court of Appeal had not failed to apply the criterion formulated in that judgment and that its finding was not incomprehensible in the light of the arguments adduced by the applicant. Referring to the applicable provisions of the CCP, the Supreme Court further held that the Court of Appeal had not applied an incorrect criterion in dismissing the request to examine investigating judge A. as a witness about the reliability of the statement made by X, and that its decision had not been incomprehensible and had been adequately reasoned.

The Act of 11 November 1993, Official Gazette (Staatsblad) 1993, no. 603, has added to the CCP a number of detailed provisions relating to the ‘protection of witnesses’. It entered into force on 1 February 1994. The Explanatory Memorandum (Memorie van Toelichting) to the Bill which later became this Act notes that these provisions were introduced specifically in response to the Court's judgments in Kostovski v. the Netherlands (20 November 1989, Series A no. 166) and Windisch v. Austria (27 September 1990, Series A no. 186) and were intended to provide a procedure complying with the requirements set out by the Court (see Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 1991/92, 22 483, no. 3, p. 3).

The Explanatory Memorandum indicates that the statutory scheme aims to respect the rights of both the witness and the accused in the criminal proceedings. In the case of the witness, this concerns in particular the right to life and respect for private life, enshrined in Articles 2 and 8 of the Convention. In the case of the accused, it concerns the right to a fair trial, enshrined in Article 6 of the Convention. Effective respect for the rights of the witness may imply that his identity must be concealed during questioning, otherwise — in short — he would be in danger. However, such withholding of identity may be at odds with the right of the accused to a fair trial, because concealing the identity of a witness limits the defence's ability to cross-examine that witness. To compensate for this limitation, the legislature has created a scheme with various procedural safeguards.

The distinction between a witness with ‘limited anonymity’ (in practice used, for example, to protect personal details of police officers of arrest, observation, and undercover teams) and a threatened witness with ‘full anonymity’ is that a witness with limited anonymity may, in principle, be cross-examined during the examination by the investigating judge and at the trial hearing. If necessary to conceal that witness' identity, the judge may order measures such as visual or acoustic shielding to be put in place, or order the accused to (temporarily) leave the hearing so that the examination can be conducted solely in the presence of the defence counsel. The judge may also prevent an answer if there is good reason to believe that disclosure of information will result in the witness experiencing serious problems in the exercise of his profession. When, however, a witness feels threatened to such an extent that it must reasonably be assumed that there is legitimate reason to fear for the life, health, safety or the stability of the family life or socio-economic position of that witness, he or she may be granted the status of ‘threatened witness’. The legitimacy of such a threat must be established by the competent judicial authority. If the status of threatened witness has been granted, the investigating judge shall establish the identity of the threatened witness but shall examine that witness in such a way as to ensure that his or her identity remains fully concealed.

At the time of X's examination as a witness in 2005 (see paragraph 7 above), the relevant provision of the CCP concerning a witness with ‘limited anonymity’ read as follows:

Article 190

The statutory scheme governing the procedural position of a ‘threatened witness’ comprises two separate procedures: one in which the decision is taken on granting the status of threatened witness (Articles 226a–226b), and one concerning the examination of the threatened witness (Articles 226c-226f). The relevant provisions of the CCP — which applied at the time of the examination of X as such a witness (see paragraph 15 above) and are still in force now — state, in so far as relevant, as follows:

Article 136c

Article 226a

Article 226b

Article 226c

Article 226d

Article 226e

Article 226f

Article 226b § 5 (see paragraph 35 above) is a specific expression of the principle of internal disclosure (beginsel van interne openbaarheid), which is a fundamental principle in Dutch criminal procedural law. This principle requires that the prosecution, the defence and the trial judge or judges have the same case file, with the same content, in the context of the trial of the suspect. In other words, the trial judge or judges are not allowed to know more than the defence or the prosecution (see also paragraph 43 below). The case file includes all documents that could reasonably be important for the decisions to be taken by the trial judge or judges (Article 149a § 2 of the CCP) and which are thus relevant for the parties to prepare their positions. The principle of internal disclosure serves equality of arms and the adversarial nature of criminal proceedings.

The Explanatory Memorandum (see paragraph 31 above) contains the following passages (at p. 10):

and (ibid., p. 18):

and (ibid., p. 14):

and (ibid., p. 43):

Other relevant provisions of the CCP concerning criminal proceedings before the Regional Court are the following:

Article 344a

Article 360

By virtue of Article 415 § 1 of the CCP, the provisions cited above apply equally to proceedings before the Court of Appeal.

At the time of Y.'s murder (see paragraph 5 above), Article 289 of the Criminal Code (Wetboek van Strafrecht) provided that anyone who intentionally and with premeditation took the life of another person was guilty of murder (moord) and liable to life imprisonment or to a term of imprisonment not exceeding twenty years or to a fifth-category fine.

Pursuant to the closed system of legal remedies which governs criminal proceedings in the Netherlands, a decision or judgment taken in the course of a trial may be examined and/or quashed by a higher court only in so far as a legal remedy against the decision or judgment is provided for in law. In a judgment of 18 May 1999 (ECLI:NL:HR:1999:ZD1336) the Supreme Court agreed with the judgment of the Court of Appeal against which an appeal on points of law had been lodged that it would be contrary to this system for an investigating judge to be examined in court as a witness in relation to his or her decisions at any stage of the proceedings if as a result they could be held accountable, and that this rule could only be departed from in special cases.

In a judgment of 30 June 1998 (ECLI:NL:HR:1998:ZD1214) the Supreme Court held that it followed from the legislative history of Article 226a of the CCP (see paragraphs 35 and 37 above) that decisions on whether a witness was a threatened witness could not be re-examined by the trial court unless the manner in which such a decision under Article 226a and/or Article 226b of the CCP (see paragraph 35 above) had been taken or the contents of that decision had been so fundamentally defective that the use by the trial court of the results of the subsequent questioning would violate the right of the accused to a fair trial as guaranteed in Article 6 of the Convention (see, in the same vein, the Supreme Court judgment of 28 March 2006, ECLI:NL:HR:2006:AU5471, and the Supreme Court judgment of 24 April 2014, ECLI:NL:HR:2018:666).

In a judgment of 20 April 1999 (ECLI:NL:HR:1999:ZD5266) the Supreme Court held that it followed from the legislative history of Article 226a of the CCP that it would be incompatible with the principle of internal disclosure (see paragraphs 36 and 37 above) if the trial court were to hear a threatened witness in camera without the presence of the prosecution and the defence.

The applicant complained that he had not been afforded an opportunity to effectively challenge the evidence against him as a result of the procedure followed with regard to the questioning of anonymous witness X, whose incriminating statements had been used in his conviction for murder, contrary to Article 6 §§ 1 and 3 (d) of the Convention, which in so far as relevant reads as follows:

Regrettably, the enactment of the pertinent CCP 1993 provisions, and, therefore, the procedures followed in the present case, were not in compliance with the Court's Plenary judgment of Kostovski v. the Netherlands (20 November 1989, Series A no. 166). In that case, the Court was composed of eighteen judges and its judgment was unanimous in finding a violation of Article 6 § 3 (d) taken together with Article 6 § 1. The facts of that case and the Court's conclusion in it have been summarised appropriately by Professors Roberson and Merrills, and I find their succinct and accurate summary suitable for adoption:

The reasoning of the Court which led it in finding a breach of Article 6 § 3 (d) read together with Article 6 § 1, was the following:

It is clear from paragraph 44 of the Kostovski judgment, quoted above that the issue of granting a witness the status of threatened witness was governed by the case-law and practice in the Netherlands. It is also clear from paragraph 31 of that judgment that the CCP in force at that time contained no express provisions on statements made by anonymous witnesses.

The principles set out in paragraphs 39–41 above apply also in the present case, as well as in other similar cases.

The handicaps of the defence set out in paragraphs 42–43 above regarding anonymous witnesses were similar to those that the defence encountered in the present case.

The Court's conclusion in the present case, were it to follow the judgment in Kostovski, should have been similar to the Court's conclusion in the latter case, as set out in its paragraphs 44 (sub-paragraph 3) and 45, quoted above.

Kostovski was followed by Windisch v. Austria (27 September 1990, Series A no. 186). The latter judgment was delivered ten months after Kostovski, by a Chamber of the Court consisting of seven judges, six of whom, including its president, had also members (and the president) of the Kostovski composition. In the Austrian case, the two anonymous female witnesses had been heard only, at the investigation stage, by the police officers in charge of the case, who later gave evidence in court concerning their statements. As a result, neither the applicant nor his counsel — in spite of their repeated requests — ever had an opportunity to examine the witnesses whose evidence had been taken in their absence. According to the Government, the applicant could have put written questions to these two anonymous witnesses, had he so requested at the trial. This possibility, as the Court held (see Windisch, § 28), cannot, however, replace the right to examine prosecution witnesses directly before the trial court. In particular, the nature and scope of such written questions were, in the circumstances of the case, considerably restricted by reason of the decision to preserve the anonymity of these two persons. The Court also held that, being unaware of these witnesses' identity, the defence was confronted with an almost insurmountable handicap: it was deprived of the necessary information permitting it to test the witnesses' reliability or cast doubt on their credibility (ibid., § 28). Furthermore, as the Court argued, the trial court, which was also unaware of the two anonymous witnesses' identity, was prevented from observing their demeanour under questioning and thus forming its own impression of their reliability and the police officers' evidence on this point at the hearings cannot be regarded as a proper substitute for direct observation (ibid., § 29). As in Kostovski, the Court in Windisch noted that the Convention does not preclude reliance, at the investigation stage, on sources such as anonymous informants (ibid., § 30); however, the subsequent use of their statements by the trial court to found a conviction is another matter (ibid.). As the Court also noted, the right to a fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrifice (ibid.). The Court ultimately found a violation of Article 6 § 3 (d) taken together with Article 6 § 1.

Thus, before the enactment of the pertinent provisions of the CCP 1993 in the Netherlands, there had been two authoritative judgments by this Court, namely, Kostovski and Windisch, which should have inspired and directed the domestic authorities not to enact provisions which were incompatible with the principles enunciated in these two cases.

Not only were the pertinent provisions of the CCP 1993 enacted with procedures incompatible with the Court's preceding case-law, but the Court itself, in Doorson v. the Netherlands (26 March 1996, Reports of Judgments and Decisions 1996-II), had compromised some of the important principles laid down in the previous two cases. Although in that judgment the Court began by saying that, as it [had] held on previous occasions, the Convention does not preclude reliance, at the investigation stage, on sources such as anonymous informants (see Doorson, § 69), it proceeded to make the following statement:

Commenting on the above passage, Professor Eva Brems argues that ‘an equitable equilibrium of the conflicting rights must be sought’, compatible with ‘the principle of practical concordance: both rights must be fully protected, which requires limited exceptions of both.’[8] The Court in Doorson held that the maintenance of the anonymity of the two witnesses presented the defence with difficulties which criminal proceedings should not normally involve; however, no violation of Article 6 § 1 taken together with Article 6 § 3 (d) can be found if it is established that the handicaps under which the defence laboured were sufficiently counterbalanced by the procedures followed by the judicial authorities (see Doorson, § 72). Unlike the present case, it should be noted that in Doorson, the anonymous witnesses were questioned at the appeals stage in the presence of counsel by an investigating judge who was aware of their identity, even if the defence was not (ibid., § 73). Doorson was distinguished from Kostovski, because counsel was not only present, but was put in a position to ask the witnesses whatever questions he considered to be in the interests of the defence except in so far as they might lead to the disclosure of their identity, and these questions were all answered (ibid.). The Court went on to find that, on balance, the Amsterdam Court of Appeal had been entitled to consider that the interests of the applicant were in this respect outweighed by the need to ensure the safety of the witnesses (ibid., § 74). The Court concluded by seven votes to two that there had been no violation of Article 6 § 1 read together with Article 6 § 3 (d). The two dissenters were Judge Ryssdal and Judge de Meyer. Both of these judges were also in the composition of the Court in the Kontovski and Windisch judgments, and Judge Ryssdal was the President of the composition of the Court in all three cases. The two dissenters in Doorson agreed with the unanimous decision of the Commission, which found that there had been a breach of the applicant's defence rights and argued that it was not permissible to resolve such problems by departing from such a fundamental principle as the one that witness evidence challenged by the accused cannot be admitted against him if he has not had an opportunity to examine or have examined, in his presence, the witness in question. The applicant did not have such an opportunity in relation to the one witness who ‘disappeared’, or to the other two witnesses who were heard only in the presence of his lawyer. Moreover, these two witnesses were anonymous witnesses, whose identity was only known to the investigating judge but not to the applicant and his lawyer, nor to the Regional Court and the Court of Appeal. In conclusion, while Doorson can somehow be distinguished from Kostovki, it is still, to the extent that the two dissenters disagreed with it, a deviation of or departure from Kostovski.

The last judgment we shall discuss here is Van Mechelen and Others v. the Netherlands (23 April 1997, Reports of Judgments and Decisions 1997-III),[9] where the Court followed the principles laid down in Kostovski. In that case, anonymous police officers were with the investigating judge in a separate room, from which the accused and even their counsel were excluded. All communication was via a sound link. The defence was thus not only unaware of the identity of the police witnesses but was also prevented from observing their demeanour under direct questioning, and thus from testing their reliability. The Court observed that, having regard to the place that the right to a fair administration of trial justice holds in a democratic society, any measures restricting the accused's person rights should be strictly necessary, and that, if a less restrictive measure can suffice, then that measure should be applied (see Van Mechelen, § 58). It had not been explained to the Court's satisfaction why it was necessary to resort to such extreme limitations on the right of the accused to have the evidence against them given in their presence, or why less far-reaching measures were not considered (ibid., § 60). The Court also expressed the view that, in the absence of any further information, it could not find that the operational needs of the police provided sufficient justification. It also noted that the explanatory memorandum of the bill which became the Act of 11 November 1993 referred in this connection to the possibilities of using make-up or disguise and the prevention of eye contact (ibid.) In fact, the anonymous police officers were questioned before an investigating judge, who had himself ascertained their identity and had, in a very detailed official report of his findings, stated his opinion on their reliability and credibility as well as their reasons for remaining anonymous (ibid., § 61). However, as the Court held, these measures could not be considered a proper substitute for the possibility of the defence to question the witnesses in their presence and make their own judgment as to their demeanour and reliability (ibid., § 62). It thus could not be said that the handicaps under which the defence laboured were counterbalanced by the above procedures. The Court ultimately held by six votes to three that there had been a violation of Article 6 § 1 taken together with Article 6 § 3 (d). Three of the judges of the majority were also judges of the Court's composition in Kostovski.