ABSTRACT
The admissibility of evidence was primarily a matter for regulation by national law. As a general rule, it was for the national courts to assess the evidence before them. The Court’s task was to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair. In principle, all the evidence had to be produced in the presence of the accused at a public hearing with a view to adversarial argument. That did 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 was not in itself inconsistent with A 6(3)(d) and 6(1) provided the rights of the defence had been respected. As a rule, those rights required 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. The applicant was not afforded such an opportunity. At no stage could they be questioned directly by him or on his behalf. The applicant was able to question the police officer and examining magistrates who had taken the statements and was able to submit written questions to one of the witnesses through the examining magistrate, but the nature and scope of the questions was restricted by the decision that the anonymity of the witnesses be preserved. This compounded the applicant’s difficulty; if the applicant was unaware of the witness’s identity, he could be deprived of testing hostility, unreliability, prejudice and credibility. The handicaps under which the defence laboured were not counterbalanced by the procedures followed by the judicial authorities. The importance of the struggle against organised crime could not be underestimated and demanded the introduction of appropriate measures to protect against, for example, witness intimidation. However, the right to a fair administration of justice held so prominent a place in a democratic society that it could not be sacrificed to expediency. The Convention did not preclude reliance, at the investigation stage of criminal proceedings, on sources such as anonymous informants. However, the subsequent use of anonymous statements as sufficient evidence to found a conviction, as in the present case, was a different matter. It involved limitations on the rights of the defence which were irreconcilable with the guarantees contained in A 6. In the circumstances of the case, the constraints affecting the rights of the defence were such that the applicant could not be said to have received a fair trial.
