Anonymous Witness Evidence Before the European Court of Human Rights: Is It Still Possible to Speak of "Fair Trial"?

European Criminal Law Review 1/2018

29 Pages Posted: 23 Sep 2019

See all articles by Simone Lonati

Simone Lonati

Bocconi University - Department of Law

Date Written: May 26, 2018

Abstract

The purpose of this paper is to encourage a reflection on the use of anonymous witness evidence by the European Court of Human Rights. An analysis of the leading cases solved by the Strasbourg judges will provide an overview of the European case law developments on such a delicate topic, considering how the accused’s right of defence is seriously impaired when anonymous depositions are admitted in proceedings. The Court’s most recent decisions on this topic do create some concern. They represent a considerable step backward in the guaranteed right to confrontation, which, especially when dealing with anonymity, does not seem acceptable. While there is no question on the need to protect persons other than the accused in criminal proceedings and on the urgency to safeguard the safety of witnesses, when in danger, and preserve the source of evidence, on the other hand, it is hard to imagine what “counterbalancing procedures” could compensate for all that the accused is denied when the identity of the person making incriminating statements against him/her is concealed. It is, therefore, a matter of making a civilised choice, and of asking ourselves whether in a trial that still aspires to be defined as “fair”, anonymous incriminations may be tolerated.

Keywords: European Court of Human Rights, Human Rights, Criminal Law, Criminal Procedure, Fair Trial, Anonymous Witness

JEL Classification: K14

Suggested Citation

Lonati, Simone, Anonymous Witness Evidence Before the European Court of Human Rights: Is It Still Possible to Speak of "Fair Trial"? (May 26, 2018). European Criminal Law Review 1/2018. Available at SSRN: https://ssrn.com/abstract=3451436

Simone Lonati (Contact Author)

Bocconi University - Department of Law ( email )

Via Roentgen, 1
Milan, 20136
Italy

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