Bas de Wilde1

A fundamental review of the ECtHR right to examine witnesses in

criminal cases

This article has been submitted to the International Journal of Evidence and Proof on 28 June
2012

Summary
The European Court of Human Rights (‘ECtHR’) recently changed its position on the right to examine witnesses.
This right was diminished in two ways. Firstly, in the Al-Khawaja and Tahery judgment, the ECtHR abandoned
the rule that it must be possible at all times to question a decisive witness and so created the possibility to test
the reliability of a decisive witness statement in other ways. Secondly, the ECtHR’s decision in Ellis, Simms &
Martin opened the possibility to base a conviction solely, or to a decisive extent, on anonymous witness
statements, which was previously not allowed. As a result, anonymous witness statements can now play a far
larger part in the ruling on the evidence than previously possible.

Keywords
fair trial
right to examine witnesses
sole or decisive rule
counterbalancing factors
anonymous witnesses

1 Introduction

Since the 1986 Unterpertinger judgment, the development of the right to examine witnesses
(Article 6(3)(d) European Convention on Human Rights) has been evolutiveonary in nature.2
New cases were reviewed on the basis of previous case-law criteria and principles. An
important rule was the ‘sole or decisive rule’: if the defence could not examine a witness
whose statement was the sole or decisive evidence of the charges, the ECtHR consistently
found there to have been a breach of the right to examine witnesses. In the Grand
Chamber’s judgment in Al-Khawaja and Tahery, however, the ECtHR – for the first time in
the history of its case law – fundamentally changed its course on the right to examine
witnesses.3 The sole or decisive rule is now no longer strictly applied. The ECtHR qualifies
this rule to mean that although a breach will in many cases continue to be established if the
defence has been unable to examine a decisive witness, counterbalancing factors may serve
to prevent a breach. In Ellis, Simms & Martin, the ECtHR extended the approach established

1
Bas de Wilde is a lecturer and researcher in criminal law at VU University Amsterdam.
2
Unterpertinger v. Austria, appl. no. 9120/80, judgment of 24 April 1986.
3
Al-Khawaja & Tahery v. United Kingdom, appl. nos. 26766/05 & 22228/06, judgment of 15 December 2011.
This is the first Grand Chamber judgment containing substantive considerations about the right to examine
witnesses. The Grand Chamber previously commented on the right to examine defence witnesses (Perna v.
Italy, appl. no. 48898/99, judgment of 6 May 2003), but this case was not examined on its merits as the request
to hear witnesses was insufficiently substantiated.

Electronic copy available at: http://ssrn.com/abstract=2095538

in Al-Khawaja and Tahery to anonymous witnesses.4 This article examines the most
important changes brought about by recent case law, how they relate to previous case law,
and the impact of this new case law.

2 Cases of Al-Khawaja and Tahery

2.1 Facts

The complaints of Al-Khawaja and Tahery were filed separately. Since both cases dealt with
the question whether the right to examine witnesses was sufficiently counterbalanced and
both were brought against the United Kingdom, they were dealt with jointly.

Al-Khawaja was a British consultant physician in rehabilitative medicine, while ST, the victim,
was one of his patients. In a statement to the police she claimed that Al-Khawaja indecently
assaulted her while she was under hypnosis. She did not report the assault until some
months afterwards. Another woman, VU, told the police a similar story, claiming to have
been assaulted by the physician one week later. The case in Strasbourg dealt with the first
charge, in which ST was the victim. ST committed suicide before the trial, but prior to her
death had told two friends what had happened. These friends were questioned during the
trial. ST’s general practitioner wrote a letter to a hospital in which he described the
allegation against Al-Khawaja and he, too, was questioned during the trial. As the victim was
dead, she obviously could not be questioned. Since an exception to the prohibition on
hearsay evidence applied here, the judge decided to read her statement to the jury, but
directed the jury to accord less weight to this statement as it was impossible to cross-
examine the victim. Al-Khawaja was convicted, and his subsequent appeal failed as the Court
of Appeal found the conviction not to violate Article 6 of the European Convention on
Human Rights (‘the Convention’).

The other applicant, Tahery, got into a fight with another man, referred to in the judgment
as ‘S’. During the fight, S was stabbed in the back with a knife, but did not see who did it. A
witness, T, told the police that he had seen Tahery stab S. This claim was only in T’s
statement. Tahery was prosecuted for the stabbing, but T was unwilling to testify in court,
fearing he might be harmed afterwards. The judge decided not to have T cross-examined,
believing this fear to be justified. In this case, too, the jury was instructed about the danger
of using statements of which the reliability had not been tested. Tahery was convicted.

2.2 Chamber’s judgment

The ECtHR Chamber’s ruling in Al-Khawaja & Tahery established a violation of the right to
examine witnesses in both cases. It observed that the victims’ statements in both cases were
the sole or decisive evidence, while the witnesses could not be examined. In such cases, the
Chamber doubted whether any counterbalancing factors would be sufficient to justify the

4
Ellis, Simms & Martin v. United Kingdom, appl. nos. 46099/06 & 46699/06, decision of 10 April 2012.

Electronic copy available at: http://ssrn.com/abstract=2095538

use in evidence of the witness statements.5 This rule is referred to as the ‘sole or decisive
rule’. The Chamber investigated whether the factors in these cases could be regarded as
sufficiently counterbalancing, but concluded this not to be the case.6

2.3 Stance of the UK Government

The United Kingdom requested the ECtHR’s Grand Chamber to re-assess the case.
Meanwhile the Horncastle case had been brought before the UK Supreme Court, and the
Panel assessing whether the Grand Chamber would deal with the substance of the case
decided to await the Supreme Court’s decision.7 The Supreme Court delivered its judgment
denying the appeal in late 2009, giving very detailed reasons. In essence, the Supreme Court
rejected the sole or decisive rule primarily because it was not deemed necessary for a fair
trial. The reasoning was that common law rules, which were developed long before the
Convention became effective, provide sufficient guarantee of a fair trial for defendants.
ECtHR case law has developed mainly as a result of complaints about unfairness in the
continental system. It was furthermore argued that the meaning of the sole or decisive rule
was not clear, thus making proper application of the rule difficult. In addition, no debate
appeared to have taken place on the intention behind the rule and on whether this rule also
applied in a common law country. Application of the rule was also not deemed necessary
because, in almost all cases, the same result would be achieved as with the application of UK
rules. Finally, it was pointed out that application of the rule would give rise to practical
difficulties if it had to be applied in the UK procedure. Specific reference was made to the
separate preliminary procedure regarding the admissibility of evidence. It would be
problematic to have to assess the importance of a witness statement in this preliminary
procedure, while the other evidence would not be presented until the trial. The final
conclusion stated that ‘Al-Khawaja does not establish that it is necessary to apply the sole or
decisive rule in this jurisdiction’.8 The Supreme Court decided, therefore, not to apply ECtHR
case law. This is allowed under UK law as, pursuant to Article 2(1) of the Human Rights Act
1998, the court has to ‘take account of’ ECtHR decisions, but those decisions have no direct
effect in the United Kingdom.

The Supreme Court’s arguments were also put before the ECtHR’s Grand Chamber. If the
ECtHR were to believe that the sole or decisive rule also applied in the United Kingdom, it
was additionally put forward as an important argument that the sole or decisive rule was not
to be regarded as an absolute rule, but that particular aspects of a case had to be
appreciated when applying the rule.9

5
Al-Khawaja & Tahery v. United Kingdom, appl. nos. 26766/05 & 22228/06, judgment of 20 January 2009, at §
37.
6
Al-Khawaja & Tahery v. United Kingdom, appl. nos. 26766/05 & 22228/06, judgment of 20 January 2009, at §§
41-48.
7
R v. Horncastle [2009] UKSC 14 at § 9.
8
The Supreme Court’s arguments are summarized in § 14 of the judgment. For a critical view on this judgment,
see M. Requa, ‘Absent witnesses and the UK Supreme Court: judicial deference as judicial dialogue?’ (2010) 14
E&P 208. See also W.E. O’Brian, ‘Confrontation: the defiance of the English Courts’ (2011) 15 E&P 93; I. Jones,
‘A political judgment? Reconciling hearsay and the right to challenge’ (2010) 14 E&P 332; A. Webster,
‘Horncastle v R: Statements from witnesses absent at trial’ (2009) 13 E&P 324.
9
See §§ 94-105 and 129-146.

3
2.4 Grand Chamber’s judgment in a nutshell

The Grand Chamber showed sensitivity to the UK argument that the sole or decisive rule was
insufficiently flexible. According to the Grand Chamber, counterbalancing factors can
prevent a violation of the right to examine witnesses in a case where a witness statement is
of decisive importance. In Al-Khawaja and Tahery, the Grand Chamber considered the
contested witness statements to be of decisive importance. While sufficient
counterbalancing measures had been taken in the Al-Khawaja case, this was not so in the
Tahery case.10

Three aspects are central to the Grand Chamber’s judgment, each of which I discuss
separately below:
1. Is the sole or decisive rule an absolute rule? (§ 3)
2. Can counterbalancing factors prevent a violation of the right to examine witnesses if the
witness statement is of decisive importance? (§ 4)
3. What is the role of the question as to whether there was a good reason for the non-
attendence of a witness? (§ 5)

3 Sole or decisive rule

3.1 Rule in perspective

One of the UK government’s major objections to ECtHR case law with respect to the sole or
decisive rule was the absolute nature of that rule. If the statement of a witness not
examined by the defence was of decisive importance, a violation of the right to examine
witnesses should not automatically be assumed. In the Lucà judgment, which has often been
cited in later judgments, the rule was assumed to be absolute:

Where a conviction is based solely or to a decisive degree on depositions that have

been made by a person whom the accused has had no opportunity to examine or to
have examined, whether during the investigation or at the trial, the rights of the
defence are restricted to an extent that is incompatible with the guarantees provided
by Article 611 (italics added by BW).

In § 119 of the Al-Khawaja and Tahery judgment, the Grand Chamber considered, ‘having
regard to the Court’s case-law’ that:

When a conviction is based solely or to a decisive degree on depositions that have

been made by a person whom the accused has had no opportunity to examine or to
have examined, whether during the investigation or at the trial, the rights of the

10
Al-Khawaja & Tahery v. United Kingdom, appl. nos. 26766/05 & 22228/06, judgment of 15 December 2011.
11
Lucà v. Italy, appl. no. 33354/96, judgment of 27 February 2001, at § 40.

4
 defence may be restricted to an extent that is incompatible with the guarantees
provided by Article 6.12 (italics added by BW)

The Grand Chamber presented the rule as if it has long been used in Strasbourg case law in
this wording. This, however, is not the case. Careful reading shows the word ‘are’ from the
Lucà judgment to have been replaced here by the words ‘may be’. As will be shown below,
this is a rather fundamental change.13 However, the new criterion is not presented as such at
this point. Instead, conversely, the impression is created that the criterion referred to
appears from older case law. In §§ 146-147, too, it is stated that:

It would not be correct, when reviewing questions of fairness, to apply this rule in an
inflexible manner. Nor would it be correct for the Court to ignore entirely the
specificities of the particular legal system concerned and, in particular its rules of
evidence, notwithstanding judicial dicta that may have suggested otherwise (see, for
instance, Lucà, cited above, at § 40). (...) The Court therefore concludes that, where a
hearsay statement is the sole or decisive evidence against a defendant, its admission
as evidence will not automatically result in a breach of Article 6 § 1.

At this point the Grand Chamber referred to § 40 of the Lucà judgment which ‘may have
suggested’ that the sole or decisive rule was absolute and that counterbalancing measures
could no longer prevent a violation if a conviction was based to a decisive extent on the
statement of a non-examined witness. This was implied not only by the consideration in the
Lucà judgment, but also by many other judgments in which a sufficient counterbalance was
never assumed if no opportunity to examine a decisive witness was offered. It seems that
the Grand Chamber tried to keep up the appearance of continuing the direction of previous
case law. The separate opinion of the judges Sajó and Karakaş shows, however, that the
ECtHR has indeed changed its position: ‘Today the Court has departed from its previous
position according to which, where a witness cannot be cross-examined and the conviction is
based on hearsay as the sole or decisive evidence, the rights protected under Article 6 will
be violated’.

3.2 Meaning of the rule

The arguments raised by the UK government in the Strasbourg proceedings included the
claim that it was difficult to apply the sole or decisive rule as its meaning was unclear. The
ECtHR provided some explanation in § 131 by stating that ‘decisive’ meant more than just
that the witness statement was probative. A witness statement was also not directly
‘decisive’ if, without it, the changes of an acquittal would increase. Otherwise, almost all
witness statements would be of decisive importance. The ECtHR subsequently indicated how
to determine whether a witness statement was of decisive importance:
12
Similar terminology is used in the French-language version of the judgment: ‘les droits de la défense peuvent
se trouver restreints d’une manière incompatible avec les garanties de l’article 6’. Hence, the choice of words
does not appear to be a mistake.
13
A criterion containing the words ‘may be’ can never, for that matter, entail an absolute rule. It would have
been better, therefore, if the Grand Chamber had mentioned the criterion of the Lucà judgment here. It is not
established until §§ 146-147 that the criterion must be met with flexibility. I believe it would have been better
to introduce the new criterion at this point.

5
 Instead, the word ‘decisive’ should be narrowly understood as indicating evidence of
such significance or importance as is likely to be determinative of the outcome of the
case. Where the untested evidence of a witness is supported by other corroborative
evidence, the assessment of whether it is decisive will depend on the strength of the
supportive evidence; the stronger the corroborative evidence, the less likely that the
evidence of the absent witness will be treated as decisive.

Although the ECtHR intended to provide clarity as to the meaning of the sole or decisive rule,
it did not really succeed in this objective. At the same time it must be acknowledged that not
much more could be added than what the ECtHR said. Whether a witness statement is of
decisive importance ultimately has to be established on a case by case basis. In Al-Khawaja,
the ECtHR found that the victim’s witness statement was of decisive importance. This
assessment was based on a single statement made by the UK trial judge: ‘no statement, no
count one’. The ECtHR believed that the trial judge was in a better position to evaluate the
significance of the witness statement than the ECtHR and, therefore, felt compelled to
follow that opinion.

4 Counterbalancing factors

4.1 Counterbalance in decisive witness statements

The principle in Strasbourg is that violations of the rights of the defence must be
counterbalanced.14 In the context of the right to examine witnesses, counterbalancing
factors are methods for establishing the reliability of a witness statement other than by
direct questioning. Counterbalancing factors can prevent a violation of the right to examine
witnesses. A new factor in the Grand Chamber’s judgment is that this can even be the case if
the witness statement is of decisive importance and questioning of the witness was not
possible.

The Chamber had a different view: unless exceptional circumstances applied, the Chamber
doubted whether any counterbalancing factors could be sufficient to justify using the
statement of a non-examined witness as evidence if this constituted the sole or decisive
basis of the conviction.15 Prior to the Grand Chamber judgment in Al-Khawaja and Tahery,
there was no occasion on which the ECtHR had assumed sufficient compensation in a
‘normal’ case in which a witness statement untested for reliability was of decisive
importance. Sufficient counterbalance was assumed by the ECtHR in S.N., but this case was
atypical in that the defence had not used the opportunity to examine the witness, while the
defence counsel had gone through the topics of the examination with the interrogating

14
See, for example Doorson v. Netherlands, appl. no. 20524/92, judgment of 26 March 1996, at § 72.
15
Al-Khawaja & Tahery v. United Kingdom, appl. nos. 26766/05 & 22228/06, judgment of 20 January 2009, at §
37.

6
official.16 In assessing other cases, in which that particular situation did not arise but
potentially counterbalancing measures had been applied, the ECtHR often did not test
whether sufficient compensation had taken place.17 This confirms that, in such a case,
compensation was highly unlikely.

4.2 Counterbalancing factors in the Al-Khawaja case

In the Al-Khawaja case, the Grand Chamber considered the victim’s statement to be of
decisive importance. Subsequently, it examined in §§ 155-158 whether sufficient
counterbalancing factors were present in this case. It answered this question in the
affirmative, specifically mentioning the following factors:
1. The victim’s statement was recorded by the police in the proper form.
2. The reliability of her statement was supported by the fact that the victim had
complained to two friends promptly after the alleged event. Although there were
inconsistencies between her statement and those of her friends, these were only minor.
The friends had given evidence at the trial.
3. Most importantly, according to the Grand Chamber, there were strong similarities
between the victim’s statement and the statement made by another victim of the same
physician, while there were no indications that they had influenced each other’s
statements.
4. The jury was directed to accord less weight to the victim’s statement because of the
impossibility of cross-examining her. Based on this and on the supportive evidence, the
ECtHR believed the jury was sufficiently able to conduct a fair and proper assessment of
the reliability of the victim’s statements.

One consideration with respect to the first three factors is noteworthy: in a case of indecent
assault as found proved here, ‘it would be difficult to conceive of stronger corroborative
evidence, especially when each of the other witnesses was called to give evidence at trial
and their reliability was tested by cross-examination’. This suggests that, with respect to
offences that are difficult to prove, sufficient compensation will be more readily assumed.
This would be a dubious principle as especially in vice cases false reports are often filed.

It is striking that the assessment did not include factors pointing to unreliability. Although
the ECtHR referred to ‘minor inconsistencies’ between the victim’s statement and the
statements of her friends, it disregarded two other – not unimportant – factors. Firstly, the
witness statement was not made until months after the incident and the passage of time
may have affected memory. Secondly, the assault, according to the victim, took place while
she was under hypnosis. Would this not affect the reliability of the witness statement?18

4.3 From counterbalancing procedure to counterbalancing factors

16
S.N. v. Sweden, appl. no. 34209/96, judgment of 2 July 2002. On the atypical nature of this judgment, see also
Al-Khawaja & Tahery v. United Kingdom, appl. nos. 26766/05 & 22228/06, judgment of 20 January 2009, at §
38.
17
See, for example, W. v. Finland, appl. no. 14151/02, judgment of 24 April 2007.
18
An expert witness testified to this at the trial (§§ 13-14 and 21), but the ECtHR judgment does not mention
the expert witness’s findings.

7
Prior to the Al-Khawaja and Tahery judgment, the ECtHR emphasized the counterbalancing
measures taken by national authorities with respect to the procedure. In the Demski case it
held that ‘Any difficulties caused to the defence by a limitation on its rights must be
sufficiently counterbalanced by the procedures followed by the judicial authorities’.19 A
‘counterbalancing procedure’ could thus mean the authorities had taken measures to
compensate for the lack of an adequate opportunity to examine the witness. The broader
term ‘counterbalancing factors’ was introduced in the Chamber’s judgment (§ 37) and
adopted by the Grand Chamber (§ 147). According to the Grand Chamber, the term includes
more than strong procedural safeguards. A different kind of factor, too, can provide
counterbalance: the available evidence.

It is not clear how that evidence then relates to the question of whether the witness
statement is of decisive importance since the Grand Chamber discussed the other evidence
explicitly in the context of corroborative evidence when assessing whether sufficient
counterbalancing factors are present (§ 156). Apparently, the other evidence was not
sufficient as corroborative evidence for establishing the weight to be attributed to the
witness statement, but, conversely, it was admissible as a counterbalancing factor. In
previous case law, the evidence referred to was not sufficient as supportive evidence for the
sole or decisive test. In Bocos-Cuesta, for example, similar fact evidence was not sufficient as
supportive evidence, even in combination with statements of third parties to whom the
victims had told their stories.20 Against that background, it would not have been surprising if
the similar fact evidence and third-party statements in Al-Khawaja were to have been
deemed insufficient as supportive evidence for the sole or decisive test. At the same time, it
is surprising that the exact same evidence was considered a counterbalancing factor. The
fact that the relevant witnesses could be examined at the trial was probably of crucial
importance here as it allowed for the reliability of the supportive evidence to be examined.

5 Good reason for not providing an opportunity to examine the witness

5.1 General

In §§ 119-120, the ECtHR explained that, when assessing a complaint about violation of the
right to examine a witness, it was crucial to establish whether there was a good reason for
the non-attendance of a witness and for using the witness’s earlier made statement as
evidence despite the non-attendance. Earlier case law had already shown that this was a
relevant assessment factor.21 In § 120, however, the Grand Chamber took this a step further
by stating that:

19
Demski v. Poland, appl. no. 22695/03, judgment of 4 November 2008, at § 39.
20
Bocos-Cuesta v. Netherlands, appl. no. 54789/00, judgment of 10 November 2005, at § 70. In
Scheper v. Netherlands, appl. no. 39209/02, decision of 5 April 2005, similar fact evidence was in fact involved
in the sole or decisive test, but in this case there was also other evidence pointing to coercion in rape, which
coercion the defendant disputed.
21
P.S. v. Germany, appl. no. 33900/96, judgment of 20 December 2001, at § 23: ‘only such measures restricting
the rights of the defence which are strictly necessary are permissible under Article 6’.

8
 The requirement that there be a good reason for admitting the evidence of an absent
witness is a preliminary question which must be examined before any consideration
is given as to whether that evidence was sole or decisive. Even where the evidence of
an absent witness has not been sole or decisive, the Court has still found a violation
of Article 6 §§ 1 and 3(d) when no good reason has been shown for the failure to
have the witness examined (see, for example, in Lüdi v. Switzerland, 15 June 1992,
Series A no. 238, Mild and Virtanen v. Finland, no. 39481/98 and 40227/98, 26 July
2005; Bonev v. Bulgaria, no. 60018/00, 8 June 2006; and Pello v. Estonia, no.
11423/03, 12 April 2007).

This shows that the absence of a good reason for not providing an opportunity to examine a
witness already in itself supports the establishment of a violation.

5.2 A new rule?

The ECtHR presents this rule as if it were clearly inferable from its own case law. The
question, however, is whether this is correct. The terminology used is obviously new. The
question of whether there was a good reason for limiting the right to examine a witness was
previously mentioned only in judgments involving anonymous witnesses. For keeping secret
the identity of such witnesses a ‘relevant reason’ is required, which, in addition, can also be
considered a ‘sufficient reason’.22 The good reason referred to by the ECtHR often pertains
to the action to be taken by national authorities with respect to tracing desired witnesses
and ensuring they are present for questioning. In this approach, deciding whether there was
a good reason often, therefore, means assessing whether the authorities have exerted
themselves sufficiently. In the cases considered by the Grand Chamber, the ‘good reasons’
consisted of the death of one witness, and another witness’s fear of testifying.

Closer examination of the case law referred to by the ECtHR – the cases Lüdi, Mild &
Virtanen, Bonev, and Pello – demonstrates that the rule could not be clearly inferred from
this case law. In none of the four judgments the ECtHR explicitly established that the
relevant witness statements were of decisive importance. The statements in the first three
of the above cases were clearly, however, of major importance in convicting the defendant.
In Bonev, the ECtHR even held that ‘Mr Z.T.’s and Mr L.A.’s statements appear to have been
therefore decisive for the applicant’s conviction’.23

Then again, other case law mentioned by the Grand Chamber points towards a new rule.
One important aspect is the emphasis that the Grand Chamber used to place on the sole or
decisive rule. In the Mirilashvili case it even explicitly held that ‘There will be no violation if a
witness not questioned in adversarial proceedings was not a “key” witness, that is, if ‘the
conviction was not based solely or to a decisive degree’ on his statements’.24 The lack of a
good reason for not making the witness available to the defence indeed seemed not to
constitute an independent ground for assuming a violation. That was only the case if the

22
Haas v. Germany, appl. no. 73047/01, decision of 17 November 2005, at p. 15: ‘The national authorities must
have adduced relevant and sufficient reasons to keep secret the identity of certain witnesses’.
23
Bonev v. Bulgaria, appl. no. 60018/00, judgment of 8 June 2006, at § 44.
24
Mirilashvili v. Russia, appl. no. 6293/04, judgment of 11 December 2008, at § 164.

9
witness statement was of major importance. In cases in which the witness statement was
considered of decisive importance, the existence of a good reason for the lack of an
opportunity to question the witness was sometimes also no longer examined.25 This seemed
to confirm that this reason had no independent influence on the final decision.

5.3 Impact of the rule

More important than the question of whether this rule is new is the question as to how it
should actually be applied. If a witness statement has not been decisive, a violation can be
assumed if there was no good reason for not providing an opportunity to examine the
witness. But does this mean that the importance of the witness statement is irrelevant here?
Suppose a witness statement was used as evidence, but was irrelevant in the ruling on the
evidence because a conviction would still have been possible without that statement. If, for
instance, a witness testifies that the defendant used a specific term to insult someone, while
ten other proven terms are testified to in other witness statements. Does the Grand
Chamber’s judgment mean that the trial judge must summon that one witness for
examination by the defence? And, if applicable, should attempts be made to have the
witness traced abroad and, if possible, brought to the state in which the case is tried by
means of a request for assistance? Could the maximum penalty risked maybe make a
difference?26 The Grand Chamber’s judgment does not provide clarity in this respect. It
seems to me that the right to a fair trial cannot extend so far that a government must do
everything necessary to ensure the presence of even irrelevant witnesses in order for them
to be questioned successfully.

A complicating factor is that case law from before Al-Khawaja and Tahery shows that the
ECtHR repeatedly answered the question as to the judicial authorities’ culpability in relation
to the importance of the witness statement. The two are highly correlated: the more
important the witness statement, the more effort the government is expected to make.
Conversely, considerably less effort is expected if the witness statement is of minor
importance.27 I believe this to be a reasonable point of departure. In the Grand Chamber’s
consideration, however, the two assessment factors are strictly separated from each other.

An indication of the fact that the weight of a witness statement is still a factor in the
assessment of judicial authorities’ culpability can be found in the Karpenko judgment, which
was delivered after the Al-Khawaja and Tahery judgment. In the Karpenko case, the ECtHR
held that, with respect to two non-examined witnesses, no violation of the right to examine
witnesses had been established because the evidential value of their statements was
25
See, for example, Caka v. Albania, appl. no. 44023/02, judgment of 8 December 2009, at §§ 105-106, and
Carta v. Italy, appl. no. 4548/02, judgment of 20 April 2006.
26
In, for example, Bonev v. Bulgaria, appl. no. 60018/00, judgment of 8 June 2006, at § 44, the penalty was a
relevant factor in assessing whether the authorities had undertaken sufficient efforts to ensure the presence of
a witness for questioning.
27
See, for example, Babkin v. Russia, appl. no. 14899/04, decision of 8 January 2009, at p. 9: ‘However, taking
into account the fact that Mr I. was seriously ill and was advised by the doctors against making his appearance
in court and, in particular, that his testimony was not decisive for the applicant's conviction, the domestic
court's decision to eschew a cross-examination does not appear arbitrary or unreasonable and did not restrict
the applicant's defence rights to an extent that is incompatible with the guarantees provided by Article 6
§§ 1 and 3 (d) of the Convention’.

10
marginal. Their statements pertained only to the fact that a robbery had taken place and not
to the defendant’s involvement in that robbery. Furthermore, the facts to which they
testified were corroborated by other evidence. In this judgment, the ECtHR remained silent
on whether there had been a good reason not to summon the witnesses.28 In the Gabrielyan
judgment, on the other hand, the new rule of Al-Khawaja and Tahery seems in fact to have
been applied. The ECtHR found that ‘Thus, the applicant’s conviction was based, inter alia,
on the statements of witnesses O.V. and S.K’ and subsequently found there to have been a
violation of the right to examine witnesses because the authorities made insufficient efforts
to ensure the availability of the witnesses for examination.29 While the witness statements in
this case were more important than in the Karpenko case, they apparently were not decisive.

6 Decision-making model

In § 152, the Grand Chamber presented a decision-making model for assessing a situation in
which no opportunity to examine the witness existed. This requires the following questions
to be answered in the sequence set out below:
1. Was there a good reason to deny the defence the opportunity to examine the witness?
2. Was the evidence that was not tested for reliability – by means of examination of the
witness – the sole or decisive basis for the conviction?
3. Were there sufficient counterbalancing factors, including strong procedural safeguards,
to ensure that the trial, judged as a whole, was fair?

Although the Grand Chamber does not indicate here in so many words that this sequence is
mandatory, such can be inferred from §§ 120, 146 and 147 of the judgment. In the later Ellis,
Simms & Martin decision, the ECtHR opted for more binding wording.30 The fact that the
ECtHR nonetheless does not consider the sequence to be of great importance appears from
various judgments that were delivered after the Al-Khawaja judgment and in which a
different sequence was used.31

7 Overall fairness as a guiding principle

The sole or decisive rule is no longer considered an absolute rule, but instead a factor to be
considered in relation to counterbalancing factors. How can this U-turn by the Grand

28
Karpenko v. Russia, appl. no. 5605/04, judgment of 13 March 2012.
29
Gabrielyan v. Armenia, appl. no. 8088/05, judgment of 10 April 2012, at §§ 80-84.
30
Ellis, Simms & Martin v. United Kingdom, appl. nos. 46099/06 & 46699/06, decision of 10 April 2012: ‘the
Court must examine, first, whether there are good reasons to keep secret the identity of the witness (...).
Second, the Court must consider whether the evidence of the anonymous witness was the sole or decisive
basis of the conviction’.
31
In Sibgatullin v. Russia, appl. no. 1413/05, judgment of 24 April 2012, at §§ 54-56 and Sarkizov et al v.
Bulgaria, appl. nos. 37981/06 et al, judgment of 17 April 2012, at §§ 57-58, the ECtHR first examined the weight
of the witness statement and only then whether a good reason for the non-attendance of the witnesses
existed. In Nechto v. Russia, appl. no. 24893/05, judgment of 24 January 2012, at §§ 119-128, the ECtHR found
a violation because, with respect to decisive witnesses, no opportunity to examine the witness had been
offered. As to any good reasons for the failure to offer an opportunity to examine witnesses and
counterbalancing factors, the judgment remained silent.

11
Chamber be explained? The defence rights in Article 6(3) of the Convention are rights
flowing from the right to a fair trial provided for in Article 6(1) of the Convention. The ECtHR
routinely, therefore, reviews complaints about violations of the right to examine witnesses
against the background of that principal right. Hence, the question is always whether,
considering all factors of the case as a whole, there has been a fair trial.32 The Grand
Chamber emphasizes this basic principle and refers to previous judgments in which the
ECtHR carried out that ‘overall examination of the fairness’ (§§ 143-145). Thus although
‘overall fairness’ is not a new principle in Strasbourg case law, the sole or decisive rule has
limited the assessment of that fairness in the past. Regardless of the particular
circumstances of a case, a conviction based to a decisive extent on statements of witnesses
not examined by the defence was considered incompatible with the right to a fair trial.33 In
Al-Khawaja and Tahery, the Grand Chamber deemed a flexible application of the sole or
decisive rule necessary. Applying this rule as an absolute rule:

would transform the rule into a blunt and indiscriminate instrument that runs
counter to the traditional way in which the Court approaches the issue of the overall
fairness of the proceedings, namely to weigh in the balance the competing interests
of the defence, the victim, and witnesses, and the public interest in the effective
administration of justice. (§ 146)

The cases referred to by the Grand Chamber, in which the overall fairness was assessed, did
not pertain to the right to examine witnesses. In this regard the Grand Chamber could have
referred to the Mirilashvili judgment, in which no violation of the right to examine witnesses
could be established based on the separate assessment factors, whereas all factors taken as
a whole did lead to the conclusion that the defendant did not have a fair trial.34 It cannot be
argued, therefore, that the ECtHR’s new direction arose in a vacuum. An important
difference can be distinguished, however, between the approach in Mirilashvili and the
approach in Al-Khawaja and Tahery. In the Mirilashvili case the witness statements were not
considered to be of decisive importance, but a violation was nevertheless assumed on the
basis of the sum total of the assessment factors. The opposite occurred in the Al-Khawaja
case: the witness statements were considered to be of decisive importance, yet no violation
was assumed. This constitutes a novelty in ECtHR case law on the right to examine
witnesses.

The idea of overall fairness is conveyed in a number of ways in the judgment. Compensation
is deemed possible if it was impossible to examine a decisive witness. The judge has to weigh
all factors of the case, with the weight of the witness statement seen as ‘a very important
factor to be placed in the balance alongside the procedural safeguards (...) and other
counterbalancing factors present in the case’ (§ 155). In addition, the judge must ‘weigh in
the balance the competing interests of the defence, the victim, and witnesses, and the

32
Mirilashvili v. Russia, appl. no. 6293/04, judgment of 11 December 2008, at §§ 164-166.
33
On this see also the partly dissenting and partly concurring opinion of the judges Sajó and Karakaş annexed
to the judgment. They considered the sole or decisive rule to be the essence of the right to examine witnesses
and argued that although overall fairness was a relevant factor, it did not mean that a fundamental right could
be deprived of its essence.
34
Mirilashvili v. Russia, appl. no. 6293/04, judgment of 11 December 2008, at §§ 228-229.

12
public interest in the effective administration of justice’ (§ 146).35 At the same time, the
Grand Chamber presents the absence of a good reason for the lack of an opportunity for
examination of a witness as a factor capable by itself of justifying the establishment of a
violation (§ 120). This is not in keeping with the approach of overall fairness as strict
application of that rule implies establishing a violation of the right to examine witnesses also
in the event of an insignificant witness statement. As argued above, I believe the mere
absence of a good reason does not affect the fairness of the process to such an extent that it
constitutes a violation.

8 Application of the sole or decisive test in cases involving anonymous witnesses

8.1 Established ECtHR case law on anonymous witnesses

Unfamiliarity with the identity of a witness restricts the defence’s opportunities to

demonstrate the witness’s lack of credibility. The right to examine witnesses is, therefore,
also important in cases involving anonymous witnesses. These cases are usually not about
the impossibility of examining the anonymous witness, but about the restrictions the
defence experiences during such examination. These restrictions frequently involve more
than just keeping the witness’s identity secret. After all, if no other measures are taken, the
defendant may conceivably recognize the anonymous witness during the examination. For
this reason, a disguise or a voice changer rendering the witness unrecognizable are
permitted, while the witness may also be allowed to be in a different room from the defence
during the examination.36 The rules in this respect obviously vary from one Member State to
another.

ECtHR rules on the right to examine non-anonymous witnesses have always also applied to
cases involving anonymous witnesses.37 With respect to this category of witnesses, however,
the ECtHR used a more stringent approach by defining two assessment factors differently.
Firstly, a conviction could not be based either solely or to a decisive extent on anonymous
witness statements, regardless of whether the defence had the opportunity to examine
these witnesses. Secondly, the principle applied that – even if the statements of the
anonymous witnesses were not of decisive importance – the handicaps under which the
defence laboured had to be sufficiently counterbalanced.38 Compensation for the failure to
provide an opportunity to examine the witness was not the primary issue here as
anonymous witnesses often can be examined. Instead, the issue concerned compensation
for not knowing the identity of the witness. The types of counterbalancing measures with
respect to anonymous witnesses were, therefore, different in nature from those regarding
non-anonymous witnesses. It should be pointed out that the extent to which compensation

35
In a vice case, for instance, this can mean society’s interest in punishing the offender, the victim’s interest in
not having to testify and the defendant’s interest in the opportunity to test the reliability of a witness
statement.
36
Accepted in Kok v. Netherlands, appl. no. 43149/98, decision of 4 July 2000.
37
In Lüdi v. Switzerland, appl. no. 12433/86, judgment of 15 June 1992, for instance, a violation of the right to
examine witnesses was established because the conviction was to a decisive extent based on the statement of
an anonymous, non-examined witness.
38
Doorson v. Netherlands, appl. no. 20524/92, judgment of 26 March 1996, at §§ 75-76.

13
was required depended on the importance of the witness statement for the conviction.39 In
the event of marginal importance, a low degree of compensation would suffice. In the Haas
case, for instance, the fact that the defence was able to question the investigating officers
who had examined the anonymous witness was considered sufficient.40

8.2 Case of Ellis, Simms & Martin

In its decision in Ellis, Simms & Martin41 the ECtHR in part abandoned the more stringent
rules with respect to anonymous witnesses. It considered:

As the Grand Chamber indicated in Al-Khawaja and Tahery, the problems posed by
absent witnesses, at issue in that case, and anonymous witnesses, as in the present
case, were not different in principle. (...) As to how the sole and decisive test should
be applied to the oral evidence of anonymous witnesses, the Court considers that the
guidance given by the Grand Chamber in Al-Khawaja and Tahery is equally applicable
here. (§ 75)

The ECtHR subsequently explained which questions needed to be answered in order to

establish whether the right to examine witnesses had been violated:

In assessing the fairness of a trial involving anonymous witnesses called to give oral
evidence before the court, this Court must examine, first, whether there are good
reasons to keep secret the identity of the witness. (...) Second, the Court must
consider whether the evidence of the anonymous witness was the sole or decisive
basis of the conviction. (...). Third, where a conviction is based solely or decisively on
the evidence of anonymous witnesses, the Court must subject the proceedings to the
most searching scrutiny. It must be satisfied that there are sufficient
counterbalancing factors, including the existence of strong procedural safeguards, to
permit a fair and proper assessment of the reliability of that evidence to take place.
(§§ 76-78)

Important aspects of the sole or decisive test from Al-Khawaja and Tahery are applied here
to cases involving anonymous witnesses.42 The ECtHR’s considerations, and in particular the
phrasing of the third question, show in unmistakable terms that the mere fact that the
anonymous witness statement is of decisive importance does not automatically constitute a
violation. After all, counterbalancing factors may still prevent a violation. This is a
fundamental change vis-à-vis consistent ECtHR case law on anonymous witnesses. Whereas
previously the anonymous witness statement was allowed only a minor role and
compensation was required, the situation now seems to be reversed: an anonymous witness
statement can be of decisive importance, but only if the position of the defence has been
sufficiently safeguarded by means of counterbalancing factors. Moreover, this decision does

39
Visser v. Netherlands, appl. no. 26668/95, judgment of 14 February 2002, at § 46.
40
Haas v. Germany, appl. no. 73047/01, decision of 17 November 2005, at p. 17.
41
Ellis, Simms & Martin v. United Kingdom, appl. nos. 46099/06 & 46699/06, decision of 10 April 2012.
42
The sole or decisive rule as formulated in Al-Khawaja & Tahery could not be followed literally and fully with
respect to anonymous witnesses because the principle of that rule is that witnesses have not been examined,
while, conversely, anonymous witnesses usually can be examined.

14
not exclude the possibility of a conviction being based solely on anonymous witness
statements. In that case, however, the counterbalancing measures will have to be
considerable. In Ellis, Simms & Martin, the ECtHR held that the anonymous witness
statements may have been of decisive importance and subsequently listed the following
counterbalancing factors:
• The judge, the jury, the defence and the prosecution could all see and hear the
anonymous witness give evidence in court and were therefore able to observe his
demeanour during the examination (§ 82).
• The trial judge handed down three rulings about the anonymity. He carefully considered
the support for the evidence, the extent of the disclosure of information about the
witness and the need to protect the defendant’s right to a fair trial. In addition, the trial
judge refused to permit evidence from another anonymous witness, which is an
indication of the judge’s careful consideration (§ 83).
• The need for a careful review of the evidence also manifested itself in the direction given
to the jury (§§ 84-85).
• Information about the anonymous witness was disclosed, in particular with respect to his
gang background and possible motives for lying, which increased the possibility of a
successful cross-examination (§§ 86-87).

These factors were deemed sufficient by the ECtHR. The ECtHR Chamber ruling on the case
was unanimous. It is remarkable in this respect that the ECtHR did not hold there not to have
been a violation of the right to examine witnesses in the applicants’ cases, but instead
declared the complaint inadmissible because it was manifestly unfounded. Given the
fundamental change of course, it would in my opinion have been more appropriate to
deliver a judgment. But maybe the ECtHR meant to give a signal: should a similar complaint
be filed in the future, it will be declared manifestly unfounded and probably in an
unsubstantiated decision.

8.3 Basis for the new rules

Why has the ECtHR decided to ease the rules with respect to the use of anonymous witness
statements and in effect to treat anonymous witnesses in practically the same way as non-
examined, non-anonymous witnesses? The reason is not clear from the grounds of the
decision, although the ECtHR does explain that the defence’s handicap is different in nature
if the witness is anonymous rather than simply cannot be examined:

Absent witnesses present the particular problem that their accounts cannot be
subjected to searching examination by defence counsel. However, their identities are
known to the defence, which is therefore able to identify or investigate any motives
they may have for lying. Anonymous witnesses, on the other hand, are confronted in
person by defence counsel, who is able to press them, at times vigorously, on any
inconsistencies in their account. The judge, the jury and counsel are able to observe
the witnesses’ demeanour under questioning and, by doing so, to form a view as to
their truthfulness and reliability. In the case of a fully anonymous witness, where no
details whatsoever are known as to the witness’ identity or background, the defence
faces the difficulty of being unable to put to the witness, and ultimately to the jury,
any reasons which the witness may have for lying. (§ 74)

15
From the fact that more stringent rules with respect to anonymous witnesses applied under
old case law it can be concluded that the ECtHR felt that the defence was restricted more by
the use of anonymous witness statements as evidence than by the impossibility of examining
a non-anonymous witness. However, the ECtHR has never explained the reason for the more
stringent rules with respect to anonymous witnesses. Similarly, the reasons for the easing of
the rules in Ellis, Simms & Martin can also only be guessed. It is possible the ECtHR found the
rules with respect to anonymous witnesses to be too severe because these rules did not take
account of the various situations that may arise in respect of anonymous witnesses. From
the principle of overall fairness, which is the basis of the new rules established in Al-Khawaja
and Tahery, this may well be conceivable. The ECtHR gives a reason for this idea by referring
to the practice of – UK – criminal law: ‘However, in practice, some disclosure takes place
which provides material for cross-examination. The extent of the disclosure has an impact on
the extent of the handicap under which the defence is labouring’ (§ 74). If not all information
about the witness is revealed, but certain information is disclosed, the defence’s position is
thus affected to a lesser extent.43 The use of the witness statements as decisive evidence is
then less onerous, assuming that it was possible for the defence to examine the witness. An
absolute prohibition of that use would, therefore, go too far. The overall fairness does not
require it.

8.4 Unanswered questions

The decision in Ellis, Simms & Martin is clearly worded and in principle suitable for
application in future cases. Nonetheless, it also leaves certain questions unanswered, in
particular concerning the scope of the decision.

Firstly, the significance of the decision for Member States other than the United Kingdom is
unclear. Even grounds presented by the ECtHR as general principles seem entirely based on
UK law.44 In the proceedings on which the ECtHR bases its grounds, a jury is responsible for
the final decision on the defendant’s guilt, and the anonymous witness is questioned at the
trial in the form of a cross-examination. This emphasis on particular aspects of UK criminal
proceedings raises the question as to what the significance of this decision is for Member
States with a different legal system. I will illustrate the relevance of this question by looking
at one aspect. The ECtHR’s general considerations in Ellis, Simms & Martin relate to ‘a trial
involving anonymous witnesses called to give oral evidence before the court’ (§ 76). The case
thus involves anonymous witnesses who made their statements at the trial and who could
actually be examined by the defence at that time. However, not all ECtHR Member States
stipulate that a witness must in principle testify at the trial. In the Netherlands, for example,
it is standard practice for an anonymous witness to testify during the preliminary inquiry,
while exercising the right to examine witnesses usually means the defence is entitled to
question the witness during the preliminary inquiry in the presence of an examining judge.
The witness’s answers are recorded, and the trial judge who decides whether the defendant

43
Although self-evident, this idea did not appear clearly from Strasbourg case law. It can only be inferred from
an old decision: X v. Austria, appl. no. 4428/70, EComHR decision of 1 June 1972, at p. 8.
44
Under UK law, an anonymous witness statement can be of decisive importance. With regard to the
relationship with ECtHR case law in this regard, see J.M. Swergold, ‘Taking ‘Blind Shots at a Hidden Target’:
Witness Anonymity in the United Kingdom’, (2009) 32 B.C. Int'l & Comp. L. Rev. 471.

16
should be convicted assesses the reliability of the anonymous witness statement on the
basis of that record, without having heard the witness giving the answers and without having
been able to observe the anonymous witness’s demeanour.45 The ECtHR has accepted this
practice with respect to anonymous witnesses in the past.46 Would the ECtHR also deem the
rules formulated in Ellis, Simms & Martin to be applicable to cases in which the anonymous
witness was not examined at the trial? Or does it want to be more stringent with respect to
decisive witnesses, and does it consider examination at the trial to be of essential
importance as only then can the trial judge optimally form an opinion on the reliability of the
witness?

Secondly, the question arises as to the significance of the disclosure of certain information
about the anonymous witness. The ECtHR has considered that in practice (in the United
Kingdom) some information is often provided about the character of the witness, as was the
case in Ellis, Simms & Martin. It cannot be said with certainty, however, whether the ECtHR
would also apply its decision-making model in situations involving anonymous witnesses
about whom no information at all was disclosed.47 If that were the case, the ECtHR would
allow a conviction to be based to a decisive extent and even solely on those witnesses’
statements, providing sufficient compensation was offered. Depending on the extent to
which the ECtHR accepted counterbalancing measures, this could mean a considerable
weakening of the defence’s position.

Thirdly, it is not clear how the ECtHR, after Ellis, Simms & Martin, views the use of non-
decisive anonymous witness statements. According to the rules on non-anonymous
witnesses, the right to examine witnesses is not violated if the witness statement is not of
decisive importance.48 Counterbalancing measures are in that case no longer necessary to
prevent a violation of Article 6 of the Convention, although the general principle that
restrictions on the movement of the defence must be sufficiently counterbalanced continues
to apply.49 The decision-making model used in Al-Khawaja and Tahery also embodies this
principle. In Ellis, Simms & Martin, the ECtHR explicitly linked the requirement for
counterbalancing factors to the situation in which the anonymous witness statement is of
decisive importance. Can it be inferred from this that counterbalancing measures are no
longer required if the conviction is not to a decisive extent based on anonymous witness
statements? Based on the Sarkizov judgment, this question appears to have to be answered
in the negative. In this case, the ECtHR seems to apply the old decision-making model by first
establishing that sufficient compensation was offered for the anonymity (§ 57) and then
establishing that the witness statements were not of decisive importance (§ 58).50 It

45
See the provisions with respect to threatened witnesses in Articles 226a-226f of the Dutch Code of Criminal
Procedure.
46
Doorson v. Netherlands, appl. no. 20524/92, judgment of 26 March 1996; Kok v. Netherlands, appl. no.
43149/98, decision of 4 July 2000.
47
§ 74 shows that the ECtHR was indeed aware of that possibility: ‘In the case of a fully anonymous witness,
where no details whatsoever are known as to the witness’ identity or background, the defence faces the
difficulty of being unable to put to the witness, and ultimately to the jury, any reasons which the witness may
have for lying’.
48
Mirilashvili v. Russia, appl. no. 6293/04, judgment of 11 December 2008, at § 164.
49
Demski v. Poland, appl. no. 22695/03, judgment of 4 November 2008, at § 39. The right to a fair trial was
affected, but not to the extent that it was violated.
50
Sarkizov et al v. Bulgaria, appl. nos. 37981/06 et al, judgment of 17 April 2012.

17
therefore seems that counterbalancing measures are still required if the anonymous witness
statement is not of decisive importance.

Fourthly, the question arises as to how the ECtHR will deal with anonymous witnesses who
have not been examined, given that its considerations in Ellis, Simms & Martin were based
on the fact that it was possible to examine the anonymous witness. The ECtHR previously
considered the possibility of examining the anonymous witness to be an important
counterbalancing measure.51 Although the ECtHR has in some cases accepted
counterbalancing measures other than the examination of anonymous witnesses, the
witness statements in those cases were of marginal importance only.52 I therefore suspect
that the ECtHR will not often accept anonymous statements of non-examined witnesses and
that, in addition, such statements will not be allowed to be of decisive importance. This is
also reasonable since the defence would be doubly handicapped if an anonymous witness
were unable to be examined.

8.5 Possible consequences of the new rules

In the Kostovski case, the Dutch government argued that the use of anonymous witness
statements was necessary for effectively combating organized crime. Witnesses to such
crimes were often unwilling to testify non-anonymously. The ECtHR was sympathetic to the
government’s difficult task of combating organized crime, but it allowed another interest to
prevail. This interest was described by the applicant’s counsel as ‘the interest of everybody
in a civilised society in a controllable and fair judicial procedure’. The ECtHR added that ‘The
right to a fair administration of justice holds so prominent a place in a democratic society (...)
that it cannot be sacrificed to expediency’.53 The ECtHR subsequently found it incompatible
with Article 6 of the Convention for the applicant’s conviction to have been based to a
decisive extent on anonymous witness statements.

Based on the decision in Ellis, Simms & Martin, a conviction deriving to a decisive extent
from anonymous witness statements is acceptable. Whether the rights of the defence have
been respected must then be established on the basis of counterbalancing factors. This
creates opportunities for using anonymous informants on a far larger scale than has been
acceptable to the ECtHR until now. The Public Prosecution Service can now successfully bring
cases that until recently were considered hard to prove from an evidential point of view,
while witnesses persuaded with great difficulty to testify non-anonymously can now make
statements without having their identity known, so long as they have good reasons for
wishing to stay anonymous. Or is this a too optimistic view? The answer to this question will
depend both on future ECtHR case law and on the choices made by national authorities. In
some Member States, basing a conviction solely or to a decisive extent on anonymous

51
Al-Khawaja & Tahery v. United Kingdom, appl. nos. 26766/05 & 22228/06, judgment of 20 January 2009, at §
37: ‘While it is true that the Court has often examined whether the procedures followed in the domestic courts
were such as to counterbalance the difficulties caused to the defence, this has been principally in cases of
anonymous witnesses whose evidence has not been regarded as decisive and who have been subjected to an
examination in some form or other’.
52
Haas v. Germany, appl. no. 73047/01, decision of 17 November 2005, at p. 17; Dzelili v. Germany, appl. no.
15065/05, decision of 29 September 2009, at p. 14.
53
Kostovski v. Netherlands, appl. no. 11454/85, judgment of 20 November 1989, § 44.

18
evidence is prohibited by law.54 Although these statutory provisions may have intended to
codify ECtHR case law, a decision to take a different direction in case law does not
automatically mean that national law no longer applies. Furthermore, the right to examine
witnesses is not the only relevant reason for restricting the use of anonymous statements.
After all, it is not just for the defence, but also the judge or jury deciding on a defendant’s
guilt for whom the information provided by the witness has only limited verifiability. The
danger of using anonymous witness statements lies in the fact that they may lead to unsafe
convictions.

9 Diminished right to examine witnesses

The case law discussed in this article demonstrates that the ECtHR has changed its course
with respect to the right to examine witnesses. The right to examine witnesses has been
diminished in two ways. Firstly, in Al-Khawaja and Tahery, the ECtHR abandoned the rule
that it must be possible at all times to examine a decisive witness. It created the opportunity
to test the reliability of a decisive witness statement in ways other than by examining the
witness. It may already be sufficient if other evidence is used to demonstrate reliability –
even if that evidence is insufficient to be allowed as supportive evidence – and if the
procedure includes sufficient procedural safeguards. Secondly, in Ellis, Simms & Martin, the
ECtHR created the possibility to base a conviction solely or to a decisive extent on
anonymous witness statements, something which was previously not allowed. This way,
anonymous witness statements can play a far larger role in the ruling on the evidence than
previously accepted.

As a result of the ECtHR’s decision-making model, cases in which a violation was established
prior to Al-Khawaja and Tahery would now pass the Strasbourg test. The right of the defence
to examine witnesses has, therefore, been diminished. The question, however, is to what
extent. In Al-Khawaja, a counterbalancing factor was present that will not often be seen in
vice cases: statements of witnesses that they, too, had been abused by Al-Khawaja. It
remains to be seen what counterbalancing factors the ECtHR will deem sufficient in future
cases. It is not inconceivable that, a few years from now, the Al-Khawaja case will turn out to
be an exceptional case and that sufficient compensation will therefore be assumed only in
highly exceptional cases.

The impact of the new rules on the right to examine witnesses in other Convention Member
States is difficult to predict. Both cases central to this article were tried under UK law in the
national procedure, a fact which the ECtHR deemed important in Al-Khawaja and Tahery.
The Grand Chamber found that it would be incorrect to ignore the specificities of a particular
legal system (§§ 130 and 146). The rules of evidence in UK law are very specific. A basic
principle is that witnesses give evidence and can be examined at the trial. Hearsay evidence
is admissible only in exceptional situations and under certain conditions. This is in stark
contrast to the Netherlands, where witnesses are rarely examined at the trial and
defendants are often convicted on the basis of hearsay statements, which can be used as

54
Article 344a(1) Dutch Criminal Code: Proof that the defendant has committed the offence with which he has
been charged cannot be based by the court solely or to a decisive extent on written documents containing
statements of persons whose identity has not been disclosed.

19
evidence to a practically unlimited degree.55 It is conceivable that future ECtHR case reviews
will assign a more prominent role to features of national legal systems. At the same time,
the Grand Chamber pointed out that the ECtHR ‘ultimately must apply the same standard of
review under article 6 §§ 1 and 3(d), irrespective of the legal system from which a case
emanates’ (§ 130).

I am not advocating abandoning the absolute nature of the sole or decisive rule. The
problem with witness statements is that they are potentially unreliable. This problem is even
more pronounced when hearsay statements are involved, as in almost all cases in which the
right to examine witnesses is invoked.56 Whereas the right to examine witnesses previously
required it to be possible to examine crucial witnesses, this right now seems to have been
reduced to a right to test the reliability of witnesses. Examination is no longer seen as the
core of the right to question witnesses. The objection against this is that the defence will not
be able to test the witness’s reliability on the points it deems relevant. Although the chances
of reliability will increase if counterbalancing factors are present, the defence will still be
deprived of the opportunity to demonstrate the witness’s unreliability on points that may
have remained underexposed in the proceedings.

I am also less than enthusiastic about the increased opportunities to base a conviction on
anonymous evidence. Although it will generally be possible to examine anonymous
witnesses, the handicaps faced by the defence should not be underestimated. For this
reason, anonymous witness statements should, in my opinion, be assigned only marginal
significance.

55
Although the Dutch Supreme has held that ‘the utmost caution’ must be exercised (HR 20 December 1926,
NJ 1927, 85), this requirement has little significance in practice.
56
Cf. Thomas v. United Kingdom, appl. no. 19354/02, decision of 10 May 2005, at p. 13: ‘The difficulty of
assessing the credibility of an account from a written transcript is the rationale of the rule against hearsay
evidence’.

20