Kostovski v The Netherlands: ECHR 20 Nov 1989

No Anonymity for Witnessses in Criminal Trial

K was convicted of armed robbery on the basis of statements of anonymous witnesses. He was unable to question those witnesses at any stage. Being unaware of the identity of the witnesses deprived K of the very particulars which would have enabled him to demonstrate the witnesses unreliability.
Held: There had been a violation of article 6(3)(d) where the court treated the statements of anonymous witnesses, who had been examined in the absence of the accused and his representatives, as sufficient proof of guilt of armed robbery. The Court explained its approach: ‘In principle, all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument. 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, 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.’ and ‘The right to a fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrificed to expediency. The Convention does not preclude reliance at the investigation stage of criminal proceedings on sources such 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 right of the defence which were irreconcilable with the guarantees contained in Article 6.’

[1990] ECHR 8, [1989] ECHR 20, 11454/85, (1989) 12 EHRR 434, [1989] ECHR 20
Worldlii, Worldlii, Bailii, Bailii
European Convention on Human Rights 6(3)(d)
Human Rights
CitedDoorson v The Netherlands ECHR 26-Mar-1996
Evidence was given in criminal trials by anonymous witnesses and evidence was also read as a result of a witness having appeared at the trial but then absconded. The defendant was convicted of drug trafficking. As regards the anonymous witnesses, . .

Cited by:
CitedD (A Minor), Regina (on the Application of) v Camberwell Green Youth Court HL 27-Jan-2005
The defendant challenged the obligatory requirement that evidence given by a person under 17 in sex or violent offence cases must normally be given by video link.
Held: The purpose of the section was to improve the quality of the evidence . .
CitedSellick and Sellick, Regina v CACD 14-Mar-2005
The defendants appealed convictions for murder saying that the court had had read to it the statements of four witnesses who refused to attend for fear, having been intimidated. Other witnesses had been unco-operative and had been treated by the . .
IllustrativeClingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
CitedRoberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
CitedAG for the Sovereign Base Areas of Akrotiri and Dhekelia v Steinhoff PC 19-Jul-2005
(Akrotiri and Dhekelia) The defendant had appealed convictions for rape and attempted rape. He had criticised the arrangements for protecting the complainant when giving evidence, which had not complied with the 1999 Act. His appeal succeeded in . .
CitedAl-Khawaja v Regina CACD 3-Nov-2005
The defendant had been tried for indecent assaults. The complainant having died before the trial, the judge had ruled that her written statements were admissible. The defendant said he had not had a fair trial.
Held: The appeal failed. The . .
CitedGrant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .
CitedRegina v Davis (Iain); Regina v Ellis, Regina v Gregory, Regina v Simms, Regina v Martin CACD 19-May-2006
The several defendants complained at the use at their trials of evidence given anonymously. The perceived need for anonymity arose because, from intimidation, the witnesses would not be willing to give their evidence without it.
Held: The . .
CitedSecretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
CitedRegina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
CitedAl-Khawaja v The United Kingdom; Tahery v The United Kingdom ECHR 20-Jan-2009
Each complainant said that in allowing hearsay evidence to be used against them at their trials, their article 6 human rights had been infringed. In the first case the complainant had died before trial but her statement was admitted.
Held: In . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Leading Case

Updated: 10 November 2021; Ref: scu.165041