Rechtsprechung
| EGMR, 06.02.2024 - 56440/15 |
Volltextveröffentlichung
- Europäischer Gerichtshof für Menschenrechte
SNIJDERS v. THE NETHERLANDS
No violation of Article 6 - Right to a fair trial (Article 6-1 - Fair hearing;Article 6-3-d - Examination of witnesses) (englisch)
Sonstiges
- Europäischer Gerichtshof für Menschenrechte (Verfahrensmitteilung)
SNIJDERS v. THE NETHERLANDS
Wird zitiert von ... (0) Neu Zitiert selbst (16)
- EGMR, 06.12.2012 - 25088/07
PESUKIC v. SWITZERLAND
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In view of this, the Court 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 (see Süleyman, cited above, §§ 63-66; Al-Khawaja and Tahery, cited above, § 147; and Pesukic v. Switzerland, no. 25088/07, § 45, 6 December 2012).Furthermore, the trial court had access only to the redacted record of the questioning, which omitted the witness's answers to several questions that might have been important in assessing his or her credibility and/or having the fullest possible view of the case (compare Pesukic v. Switzerland, no. 25088/07, § 50, 6 March 2013, where the identity of the anonymous witness was known to the presiding judge, the witness was questioned before the entire court, and disclosures were made about the witness's criminal record and other aspects).
And the present judgment (see paragraph 67) concludes on this point, by making it clear that, as in cases where the statement of an absent witness was considered the sole or decisive evidence or where such evidence carried significant weight, the Court must subject the proceedings in which a statement of anonymous witness is used in evidence to the most searching scrutiny, adding that, in view of this, 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 (see Süleyman, cited above, §§ 63-66; Al-Khawaja and Tahery, cited above, § 147; and Pesukic v. Switzerland, no. 25088/07, § 45, 6 December 2012).
In view of this, the Court 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 (see Al-Khawaja and Tahery, cited above, § 147, and Pesukic v. Switzerland, no. 25088/07, § 45, 6 December 2012).
- EGMR, 04.07.2000 - 43149/98
KOK c. PAYS-BAS
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To the contrary, based on the material before it the Court finds that the decision of the Regional Court sitting in chambers to grant X the status of threatened witness on account of his or her fear of reprisals was based on objective grounds and supported by evidence and thus cannot be considered arbitrary or manifestly unreasonable (see also Doorson v. the Netherlands, 26 March 1996, § 71, Reports 1996 II; Kok v. the Netherlands (dec.), no. 43149/98, ECHR 2000-VI; Pesukic v. Switzerland, cited above, § 46; and Breijer v. the Netherlands (dec.), no. 41596/13, § 33, 3 July 2018).That procedure, as applied in Kok v. the Netherlands ((dec.), no. 43149/98, ECHR 2000-VI), was held to respect sufficiently the rights of the defence in that case.
[9] Compare Kok v. the Netherlands, no. 43149/98, 28 August 1998, not a judgment but a de plano Chamber decision of inadmissibility, which again represented a setback to the Court's correct approach regarding the testimony of anonymous witnesses, since the Court concluded therein that the procedure followed approximated, as closely as was possible in the circumstances, the hearing of a witness in open court and that, therefore, the rights of the defence were sufficiently respected.
- EGMR, 20.11.1989 - 11454/85
KOSTOVSKI v. THE NETHERLANDS
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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).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).
Testimony or other declarations inculpating an accused may well be designedly untruthful or simply erroneous and the defence will scarcely be able to bring this to light if it lacks the information permitting it to test the author's reliability or cast doubt on his credibility (see Kostovski v. the Netherlands, 20 November 1989, § 42, Series A no. 166).
- EGMR, 27.02.2001 - 33354/96
Recht auf Konfrontation und Befragung von Mitangeklagten als Zeugen im Sinne der …
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Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings (see Lucà v. Italy, no. 33354/96, § 39, ECHR 2001-II, and Al-Khawaja and Tahery, cited above, § 118).Exceptions to this principle are possible, but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings (see paragraph 57 of the present judgment and, inter alia, Lucà v. Italy, no. 33354/96, § 39, 27 February 2001, and Al-Khawaja and Tahery v. the United Kingdom [GC], cited above, § 118).
- EGMR, 10.04.2012 - 46099/06
ELLIS AND SIMMS v. THE UNITED KINGDOM AND MARTIN v. THE UNITED KINGDOM
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We note, in this regard, that comparative practice on the questioning of protected witnesses in other European jurisdictions shows that it is possible, in principle, to provide significantly greater levels of disclosure to the defence, while still safeguarding their identity and safety (see, for example, Ellis and Simms v. the United Kingdom (dec., nos. 46099/06 and 46699/06, 10 April 2012), where the level of threat to the protected witnesses or the dangerousness of the defendants appears to have been no less substantial than in the present case).46099/06 and 46699/06, § 41, 10 April 2012 (dec.), where the judge, the jury, counsel and solicitors could all see and hear the anonymous witness give evidence.
- EGMR, 19.01.2021 - 2205/16
KESKIN v. THE NETHERLANDS
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They can be viewed, therefore, as specific aspects of the concept of a fair trial in criminal proceedings in Article 6 § 1 (see, for example, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 251, 13 September 2016; Gäfgen v. Germany [GC], no. 22978/05, § 169, ECHR 2010; Schatschaschwili, cited above, § 100; and Keskin v. the Netherlands, no. 2205/16, § 38, 19 January 2021).They can be viewed, therefore, as specific aspects of the concept of a fair trial in criminal proceedings in Article 6 § 1 (see paragraph 55 of the present judgment and, inter alia, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 251, 13 September 2016; Gäfgen v. Germany [GC], no. 22978/05, § 169, ECHR 2010; Schatschaschwili v. Germany [GC], no. 9154/10, § 100, ECHR 2015; and Keskin v. the Netherlands, no. 2205/16, § 38, 19 January 2021).
- EGMR, 17.11.2020 - 59453/10
SÜLEYMAN v. TURKEY
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As regards the counterbalancing factors which permit a fair and proper assessment of the reliability of the untested witness evidence, the Court found the following elements of relevance in the assessment of the adequacy of counterbalancing factors: the trial court's approach to the untested evidence; the availability and strength of corroborative evidence supporting the untested witness statements; and the procedural measures taken to compensate for the lack of opportunity to directly cross-examine the witness at the trial (see Schatschaschwili, cited above, §§ 125-31 and 151; Süleyman v. Turkey, no. 59453/10, § 85, 17 November 2020; and Keskin, cited above, § 65).In particular, in paragraph 65, it observes that while the judgments in the cases of Al-Khawaja and Tahery and Schatschaschwili (both cited above) concerned absent rather than anonymous witnesses, the Court has held that the problems raised by the two types of witnesses are not different in principle, since each results in a potential disadvantage for the defendant due to the inability to test the probity and credibility of the witnesses and to test the truthfulness and reliability of their evidence (see Al-Khawaja and Tahery, cited above, § 127, and Süleyman v. Turkey, no. 59453/10, § 62, 17 November 2020, and the references cited therein).
- EGMR, 01.02.2018 - 27962/10
ASANI v.
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The Court reiterates that in the case of a fully anonymous witness, where no details whatsoever as to the witness' identity or background are known, the defence faces the difficulty of being unable to put to the witness any reasons which the witness may have for lying (see Asani v. the former Yugoslav Republic of Macedonia, no. 27962/10, § 36, 1 February 2018).It also reiterates, and rightly so, that in the case of a fully anonymous witness, where no details whatsoever as to the witness' identity or background are known, the defence faces the difficulty of being unable to put to the witness any reasons which the witness may have for lying (see Asani v. the former Yugoslav Republic of Macedonia, no. 27962/10, § 36, 1 February 2018).
- EGMR, 27.09.1990 - 12489/86
Windisch ./. Österreich
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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).Kostovski was followed by Windisch v. Austria (27 September 1990, Series A no. 186).
- EGMR, 14.12.2023 - 59433/18
EGMR zu den Rechten von Beamten: Lehrer dürften nicht streiken
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59433/18 and three others, §§ 11, 15, 24, 35, 39, 41, 14 December 2023). - EGMR, 18.12.2014 - 14212/10
SCHOLER v. GERMANY
- EGMR, 26.09.2023 - 15669/20
YÜKSEL YALÇINKAYA v. TÜRKIYE
- EGMR, 10.06.2021 - 45487/17
NORWEGIAN CONFEDERATION OF TRADE UNIONS (LO) AND NORWEGIAN TRANSPORT WORKERS' …
- EGMR, 23.05.2017 - 67496/10
VAN WESENBEECK c. BELGIQUE
- EGMR, 25.10.2022 - 68725/16
XENOFONTOS AND OTHERS v. CYPRUS
- EGMR, 03.07.2018 - 41596/13
BREIJER v. THE NETHERLANDS