THIRD SECTION
CASE OF SNIJDERS v. THE NETHERLANDS
(Application no. 56440/15)
 
 
JUDGMENT
Art 6 § 1 (criminal) and Art 6 § 3 (d) • Fair hearing • Examination of witnesses • Inability to directly cross-examine anonymous witness whose statements were used in evidence against the applicant • Good reasons justifying the protection of the witness’s identity • Statements, albeit not of insignificant weight, not sole or decisive basis for applicant’s conviction • Difficulties encountered by the defence in connection with the witness’s anonymity sufficiently counterbalanced by procedures applied by the judicial authorities • Criminal proceedings, considered, as whole, not rendered unfair by admission in evidence of statements
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
6 February 2024
 
FINAL
 
06/05/2024
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Snijders v. the Netherlands,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Pere Pastor Vilanova, President,
 Jolien Schukking,
 Georgios A. Serghides,
 Darian Pavli,
 Peeter Roosma,
 Andreas Zünd,
 Oddný Mjöll Arnardóttir, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 56440/15) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Dutch national, Mr Johan Snijders (“the applicant”), on 6 November 2015;
the decision to give notice to the Government of the Kingdom of the Netherlands (“the Government”) of the complaints concerning Article 6 §§ 1 and 3 (d) of the Convention;
the parties’ observations;
Having deliberated in private on 12 December 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the alleged unfairness of criminal proceedings against the applicant owing to his inability to directly cross-examine an anonymous witness whose statements were used in evidence against him. The applicant relied on Article 6 §§ 1 and 3 (d) of the Convention. THE FACTS
2. The applicant was born in 1961. At the time of the introduction of the application he was detained in Heerhugowaard. He was represented by Mr W. Ausma, a lawyer practising in Utrecht. 3. The Government were represented by their Agent, Ms B. Koopman, of the Ministry of Foreign Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. MURDER, STATEMENT BY A WITNESS AND REOPENING OF THE CRIMINAL INVESTIGATION
5. On 8 October 2002 at around 8.45 A.M. the police discovered on a parking lot the body of a man (“Y.”) in the driver’s seat of a van who was found to have been shot and killed shortly before. A police forensic team immediately examined the scene and found amphetamine residues in the van and, approximately 50 metres from the body, a cigarette butt which, given its state and the weather conditions at the time, must have been discarded within twelve hours before Y.’s body was found. 6. From a report drawn up on 28 January 2003 by an expert of the Dutch Forensic Institute it followed that the DNA profile found on the cigarette butt matched with the DNA profile found on sunglasses that had been left behind on 23 November 2001 after a theft committed with violence. The DNA profile did not appear in the DNA database. As the murder was not solved by the criminal investigation, that investigation was closed in 2003. 7. On 8 April 2005 the investigating judge (rechter-commissaris; “investigating judge E.”) at the Regional Court (rechtbank) of ‘s‑Hertogenbosch examined under oath a witness (“X”) about Y.’s murder. Prior to questioning, X had stated that he or she knew who had committed Y.’s murder and that he or she would be willing to make a statement only if granted anonymity, because he or she would have reason to fear for his or her life if it became known that he or she was the source of this information. The investigating judge E. heard X in accordance with Article 190 § 2 of the Code of Criminal Procedure (Wetboek van Strafvordering; “the CCP” – see paragraph 34 below), which entailed that he did not ask X to state at the beginning of the hearing his or her personal details and that he gave reasons for preventing the disclosure of that information in the official record of the examination. X stated that the applicant had told him or her that he had murdered Y. and that he had been hired to do so by someone to whom Y. owed money for a drugs deal. X provided details about the murder which the applicant had told him or her. Those details, which had not been disclosed through the media, matched with factual details at the crime scene. According to investigating judge E., X appeared credible because his or her statement was given unequivocally, spontaneously and without hesitation. 8. In 2008 the applicant’s DNA profile – which had been entered in the DNA database earlier that year – was found to match the DNA profile on the cigarette butt that had been found near Y.’s body. After the criminal investigation into Y.’s murder was reopened, the police interviewed a number of witnesses including the applicant’s ex-girlfriend on several occasions. The first witness interview with her took place on 5 November 2009. At that moment the applicant was detained in relation with other criminal acts (four armed bank robberies committed in Germany in 2005 for which he was convicted in 2006 to nine years’ imprisonment). She stated that the applicant had told her that, and how, he had committed the murder on a young man in a van after the organisation run by the person who had hired him had been cheated in a drugs deal. He had also told her about another murder that he had committed to settle a debt with someone. She stated that she had been repeatedly ill-treated by the applicant and threatened by him with a gun and that she was afraid of him. They broke up in 2005. Measures were taken to contribute to her safety. In February 2010 the applicant was arrested, in prison, on suspicion of involvement in Y.’s murder. PROCEEDINGS AT FIRST INSTANCE AND GRANTING OF THREATENED WITNESS STATUS
9. At a preparatory hearing (pro-forma zitting) on 3 June 2010, the ‘s‑Hertogenbosch Regional Court granted a request by the applicant for the examination of X and referred the matter to the investigating judge. 10. On 20 October 2010 the public prosecutor (officier van justitie) made an application to the investigating judge that X be examined as a threatened witness (bedreigde getuige) pursuant to Article 226a of the CCP (see paragraph 35 below), claiming that it was reasonable to assume in the light of the nature of the crime, the identity of the applicant, the applicant’s use or threats of violence as described in a police report of 12 October 2010, and his criminal record – including, among other things, the commission of opium offences, violent crimes and property offences, committed with the application of violence – that X’s life, health or safety were at risk, and that X did not wish to make a statement because of this threat. 11. By a decision of 16 August 2011, the investigating judge (“investigating judge A.”), after hearing (separately) the public prosecutor, the applicant and his counsel and X, assisted by his or her counsel, dismissed that application, noting that it was not apparent why the Public Prosecution Service (Openbaar Ministerie) had considered in 2005 that X was to be examined as a witness in accordance with Article 190 of the CCP, whereas it now believed that he or she should be examined pursuant to Article 226a of the CCP. The appeal against that decision lodged by the public prosecutor, acting on X’s behalf, was upheld by a decision of 21 September 2011 of the Regional Court sitting in chambers (raadkamer). It found that the decision of investigating judge A. not to grant X the status of threatened witness had been insufficiently reasoned and directed investigating judge A. to reconsider the public prosecutor’s application and make a fresh decision. 12. On 11 October 2011 investigating judge A. again decided against granting X the status of threatened witness, which decision was again appealed by the public prosecutor. 13. On 9 November 2011, a three-judge chamber of the ‘s-Hertogenbosch Regional Court, after hearing X’s lawyer and the public prosecutor in camera, upheld the appeal and itself granted X the status of threatened witness under Article 226a of the CCP. 14. In doing so, the court took into account the following factors: (1) the applicant was suspected of murder and already had many previous convictions for which he had been sentenced to non-suspended terms of imprisonment; (2) it was apparent from the substance of the statement of X that he or she was aware of this; (3) the lawyer of X had stated that the latter had always wished to have full anonymity because he or she feared for his or her life, health and safety if his or her identity were to become known; (4) X had indicated that he or she would not testify if he or she were not granted the status of threatened witness for the witness examination in this criminal case; and (5) X, who had not been represented by a lawyer when making the statement in 2005, had made that statement after his or her request to grant anonymity had been accepted and X had probably been unaware of the differences between Articles 190 and 226a of the CCP and could not be expected to understand the legal details of the status accorded by both provisions, especially when, at the time the statement was made, the end result of the application of Article 190 amounted to full anonymity. Finally, the court held that a new situation had arisen once the applicant had become aware of the existence of this statement and the defence’s request to examine X had been granted by the court, and that X could not reasonably have anticipated either the course of action that would be taken by the defence in the proceedings or the other results of the criminal investigation. The fact that the incriminating statement of X had become important in evaluating the overall evidence in this case was enough to make it plausible that a threat previously perceived as fairly general had now become a serious issue. It concluded that in these circumstances a witness was entitled to the protection of Article 226a of the CCP. 15. On 2 March 2012 X was examined by the investigating judge (“investigating judge V.”) as a threatened witness in accordance with Articles 226c to 226f of the CCP (see paragraph 35 below). After the judge had taken note of the threat assessment regarding the safety of X, provided by the witness protection department at his request, he decided it to be necessary for ensuring that X’s identity remained concealed to hear X at a secret location and that neither the applicant and his counsel, nor the public prosecutor could be present at the examination (see Article 226d §§ 1 and 2 of the CCP in paragraph 35 below). In order to safeguard the parties’ interests as much as possible, the applicant and the public prosecutor were provided the opportunity to submit questions in writing to be addressed to witness X. In view of X’s status of threatened witness, the substance of his or her statement in 2005 and the outcome of the threat assessment, the investigating judge considered that the interests of the safety and protection of X should take precedence over the interests of the applicant in being able to examine X directly. 16. Prior to the examination of X, the public prosecutor had submitted one written question – whether X wished to confirm his or her statement from 2005 (which was answered affirmatively) – and the applicant had submitted twenty‑five, all of which were put to X by investigating judge V. and answered by X under oath. In the interests of protecting the identity of X, the answers to some of the applicant’s questions were not, or not fully, included in the official record of the examination. Investigating judge V. sent the official record of the examination to the applicant and public prosecutor and gave them the opportunity to submit further questions to X, but neither made use of that opportunity. 17. According to the official record X confirmed to stand by his or her statement from 2005 (see paragraph 7 above). Further, in reply to questions, he or she answered, amongst other things, that before the applicant had told him or her about the murder, he or she had not heard about that murder in any way; that he or she was troubled by the fact that he or she had knowledge of a murder of which he or she knew who the murderer was and had gone to the police in 2005 for that reason; that he or she had received no reward for making that statement; that he or she knew the applicant as a nice person, but that in terms of criminal activities he had no conscience and heart; that he was money-hungry; that he had a narrow build, grey hair, a narrow face and was about 1.80 to 1.90 metres tall; and that he or she had never spoken about this case with the applicant’s ex-girlfriend. 18. Investigating judge V. noted in the official record that before examining the witness he had established X’s identity. He further noted that he had assessed the credibility of X by asking questions about his or her life and personal situation and that he considered that X was a reliable witness in view of his or her spontaneous manner of answering and consistency with the previous statement from 2005. 19. In a judgment of 9 July 2012 (ECLI:NL:RBSHE:2012:BX0827) the Regional Court convicted the applicant for the murder of Y. and sentenced him to eighteen years’ imprisonment. It held that the statements of X were sufficiently credible, consistent and reliable to be used as evidence. In that connection the court considered that both in 2005 and 2012 the investigating judges had assessed X’ statements as reliable, that X’s statements were consistent and detailed and that they were corroborated in essential respects by both the findings of the criminal investigation and the statements of the applicant’s ex-girlfriend. It noted that X had declared under oath that he or she had had no contact with the applicant’s ex-girlfriend about this case. It also noted that their statements contained information about the crime which they could not have learned from the media (a notable example was that both stated that Y. was not the actual target), that the statements by X were not the sole or decisive evidence on which it relied for the guilty verdict, and that sufficient measures had been taken to compensate for the limitation of the defence’s right to examine witnesses. PROCEEDINGS BEFORE THE COURT OF APPEAL
20. The applicant appealed against that judgment to the ‘s-Hertogenbosch Court of Appeal. During a preparatory hearing held on 14 November 2012, the applicant’s lawyer confirmed to the court that the defence had been given the opportunity by investigating judge V. to submit further questions to X (see paragraph 16 above). He added that since the answers to some of the questions had been redacted in the official record, he had not considered it useful to submit further questions to X. 21. By judgment of 2 April 2014 (ECLI:NL:GHSHE:2014:943), the Court of Appeal quashed the judgment of the Regional Court as it did not rely on exactly the same evidence, convicted the applicant for the murder of Y. and sentenced him to eighteen years’ imprisonment. The conviction was based on twenty items of evidence, including the DNA profile found on the cigarette butt, the witness statements of the applicant’s ex-girlfriend and the witness statements of X. 22. In its judgment it dismissed the applicant’s request that investigating judge A. be examined as a witness in order (1) to assess whether the Regional Court sitting in chambers had had grounds to confer upon X the status of threatened witness (see paragraphs 13-14 above), and (2) to examine X’s credibility. Regarding the granting of the status of a threatened witness to X, the appellate court referred to a judgment of the Supreme Court of 30 June 1998 (see paragraph 42 below) which held that such a decision could not be re-examined by the trial court unless the manner in which the decision had been taken or the contents of that decision had been so fundamentally defective that the use by the trial court of the results of the subsequent questioning would violate the right of the accused to a fair trial as guaranteed by Article 6 of the Convention. In that connection, the Court of Appeal considered as follows:
“The decision of the [Regional] Court sitting in chambers was based in part on the facts that the case involves a murder accusation, that it is apparent from the case file that the suspect has received many previous non-suspended custodial sentences and that it follows from the substance of the statement made by [X] that he or she is evidently familiar with these facts and circumstances. The Court of Appeal notes that the previous convictions taken into account by the [Regional] Court sitting in chambers were set out in an extract from the suspect’s criminal record ... which includes the following custodial sentences: (i) six months for threats of serious assault and robbery (1996); (ii) three years for offences including robbery (1997); (iii) four months for offences including attempted robbery (1997); (iv) 36 months (of which eight suspended) for extortion (2001); (v) five months for offences including issuing a threat against a person’s life, and assault (2003); and (vi) nine years for serious predatory extortion (Schwere räuberische Erpressung) in four cases (2006; a conviction in Germany which ... concerned armed robberies).
[T]he [Regional] Court sitting in chambers ... was able to base its decision in part on the submissions made by the Public Prosecution Service and [X] about the fears/threat. Investigating judge [V.] then asked the witness protection department to provide a threat assessment. Partly on the basis of this assessment, investigating judge [V.] ruled that the interests of security and of protection of the threatened witness should prevail over the interests of the defence in being able to question the witness directly. This threat assessment thus provides further grounds – albeit retrospectively – for the decision of the Regional Court sitting in chambers to grant the anonymous witness the status of threatened witness. On the basis of the foregoing, it is the Court of Appeal’s view that neither the substance of the decision to grant the anonymous witness the status of threatened witness, nor the way in which the [Regional] Court sitting in chambers reached that decision, involved any violation of fundamental principles as referred to above.”
23. Regarding the second ground put forward in the request to hear investigating judge A., the appellate court considered as follows:
“Pursuant to Article 226e of the CCP, the investigating judge assesses the credibility of the threatened witness during the examination and accounts for his or her findings in the official record. In the present case, this examination and its justification were – in accordance with the statutory regulations – the responsibility of investigating judge [V.]. Assessing the credibility of the witness, as prescribed in Article 226e of the Code of Criminal Procedure, was thus not a matter for investigating judge [A.]. In addition, in determining whether [X’s] statement(s) may be used in evidence, it is up to the Court of Appeal, as an independent trial court, to form an opinion on the reliability of the statement(s). The Court of Appeal does not consider it necessary to examine [investigating judge A.] on that point or to receive a more detailed written explanation from him. In this connection the Court of Appeal has taken account of the fact that, as will be considered below, the case file contains sufficient information against which the court can assess the reliability of the anonymous witness’s statements.”
24. The Court of Appeal proceeded by examining whether the statements of X could be used in evidence:
“Article 226d of the CCP gives the investigating judge the power, if such is required to conceal the identity of the threatened witness, to determine that the suspect and/or his or her counsel may not be present when the threatened witness is examined. In such a case, the public prosecutor is not allowed to be present either. To answer the question of whether, in a specific case, the use of this power constitutes an infringement of a suspect’s right to a fair trial, the first significant factors are the manner in which the examination is performed and the measures taken to minimise the handicap created for the defence with regard to the exercise of the right to examine a witness. Another significant factor, however, is whether the results of the examination provide compelling (in overwegende mate) evidence of the suspect’s direct involvement in the offence with which he or she is charged ... In the Court of Appeal’s opinion, the suspect’s right to a fair trial, as guaranteed by Article 6 of the [Convention], was not violated by the manner in which the examination had taken place. In this connection the court has taken into account that:
• the principle of equality of arms was observed as the public prosecutor had also been barred from attending the examination and had also been permitted only to submit written questions;
• investigating judge [V.] conducted the examination of [X] in part on the basis of a list of questions submitted in advance by the defence;
• investigating judge [V.] sent the official record of the examination to the defence, which had made no use of the opportunity to submit further questions to [X] ...;
• all questions submitted to investigating judge [V.] were put to and were answered by [X];
• [X]’s answers to the majority of the questions submitted by the defence (18 out of 25) were included in the official record of the examination, and the answers to the remaining questions were not or partly included only to preserve his or her anonymity;
• during the examination, investigating judge [V.] assessed the reliability of [X] and accounted for his findings in the official record, and also checked and recorded that at the time of the examination [in 2012] no statement in the name of [X] was on file ...;
• the case file contains information obtained both from another witness ([the applicant’s ex-girlfriend]) and from the technical forensic investigation, against which the reliability of the statements by [X] could be assessed;
• in view of the statements of [the applicant’s ex-girlfriend] and the findings of the technical forensic investigation, the results of the examination of [X] did not constitute decisive or compelling (in beslissende of overwegende mate) evidence of the applicant’s direct involvement in the crime with which he had been charged. The statements given by [X] can therefore in themselves be used in evidence.”
25. The Court of Appeal then assessed the reliability of the statements of X. The statement of X from 2005 was quoted in full in the judgment. The appellate court noted that, according to investigating judge E., X had appeared credible during the examination in 2005 because he or she had given his or her statement unambiguously, spontaneously and without hesitation. The appellate court also noted that in 2012 investigating judge V. had found that X had appeared credible because of his or her spontaneous manner of answering questions and the consistency of his or her statements with those made in 2005. It found no indication that X had fabricated or changed parts of his or her statements and held that the statements were corroborated in multiple respects by the findings of the criminal investigation and contained information which had not appeared in the media. In particular, the court noted that when speaking of a “Jan Snijders” in his or her statements, X had obviously referred to the applicant (given the details provided about the applicant’s address and mobile phone number); that X had provided pertinent details about the place and time of Y.’s murder and the number of shots fired at him (which corresponded with other witnesses’ statements who had been near the crime scene and had heard the shots, with temperature readings of the victim’s body, and with the number of bullet casings found); and that X had stated that the applicant had used the money he had received for Y.’s murder to go on a holiday to one of the Canary Islands in late 2002 (which corresponded with the applicant’s statement that he and his ex‑girlfriend had made that holyday trip, with statements of other witnesses who confirmed this, and with the ex-girlfriend’s cash withdrawals on that island during that period). The Court of Appeal also recognised that in a few respects X’s statements did not correspond with the findings of the investigation, but it held that logical explanations could exist for these inconsistencies. In this respect, the court, inter alia, noted that X’s statement that the victim had been left on the passenger’s seat whereas he was found on the driver’s seat and that the door of the van had been closed whereas when the police arrived the door was locked, could be explained by the fact that it followed from the forensic investigation that the body of the victim had evidently been moved after his death. The court considered that it was conceivable that the door had locked automatically or had been locked by the applicant (by reaching through the open window) after he had opened and then closed the door. 26. The Court of Appeal noted further that the statements of X corresponded in many essential respects with those of the applicant’s ex‑girlfriend, which it also considered reliable as they were highly detailed, had been made spontaneously, were corroborated by the statements of other witnesses and the applicant, and included information that had not appeared in the media. The applicant’s ex-girlfriend’s statement that one evening the applicant wanted them to watch the TV show “Opsporing Verzocht” – a show in which the police ask the public for help solving crimes – which covered the murder of a young Moroccan man, and that the applicant told her that he had done it, was, for instance, corroborated by what the appellant had stated himself to the police on 20 May 2010, namely that when they were watching the “Opsporing Verzocht” covering Y.’s murder, he had warned her to never be nasty (vervelend) to him because otherwise it would be her turn as well (anders kom jij ook aan de beurt). The Court of Appeal further took into account that the applicant’s ex-girlfriend had been examined as a witness by the investigating judge in the presence of the applicant’s counsel, with the applicant following the examination via video link, and that both had had the opportunity to cross‑examine her directly and test her credibility. The appellate court also explicitly noted that X and the applicant’s ex-girlfriend were not the same person and that there were therefore two separate witnesses, each of whom had stated independently that the applicant had confessed to killing Y. 27. Finally, the Court of Appeal held that the cigarette butt with the applicant’s DNA proved that he had been very close to the scene of the crime within twelve hours before Y.’s body had been discovered on 8 October 2002 and that the applicant had provided no consistent or credible exonerating explanation. The court concluded that the alternative scenario submitted by the defence – according to which someone else had killed Y. and the applicant had discarded said cigarette butt after going for a run with S. that morning near the place where Y.’s body was found – was rebutted by the content of the evidence used, which the court found reliable. In that connection the court also noted, inter alia, that S., when heard as witness, had indicated that he always went running with the applicant in the afternoon. PROCEEDINGS BEFORE THE SUPREME COURT
28. On 21 November 2014 the applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad). The applicant, firstly, complained that contrary to Article 6 of the Convention, the Court of Appeal had based the conviction for the proven offence to a decisive extent on the statement of X and that insufficient measures had been taken to compensate for his inability, or insufficient ability, to cross-examine him or her. Secondly, the applicant complained about the dismissal of his requests for investigating judge A. to be examined. 29. In an advisory opinion of 7 April 2015, the Advocate General (Advocaat-Generaal) at the Supreme Court recommended that the appeal on points of law be dismissed. Regarding the complaint under Article 6 of the Convention, the Advocate General, firstly, summarised the relevant general principles set out in the Court’s case-law and the assessment framework used by the Supreme Court which was modelled on that case-law and, next, applied the so-called “Al‑Khawaja and Tahery-test” (Al‑Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011), noting that since X had been given the status of threatened witness – which the applicant had not complained about in his grounds of appeal on points of law – there could be no doubt that there was a good reason for the non-attendance of this witness, that the finding of the Court of Appeal that X’s statements were not “sole or decisive” for the conviction of the applicant was not incomprehensible or inadequately reasoned, and that the question of whether sufficient compensating measures had been offered for the lack of opportunity to question the threatened witness directly did not require further considerations because, after all, that standard applied only to those cases where the conviction was based “solely or to a decisive extent” on the statement of the absent witness. 30. By judgment of 16 June 2015 (ECLI:NL:HR:2015:1664) the Supreme Court dismissed the appeal on points of law. It dismissed the first ground of appeal on points of law because the grievance could not lead to cassation of the impugned judgment. Based on section 81 (1) of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie), this required no further reasoning as the grievances did not give rise to the need for a determination of legal issues in the interest of legal uniformity or legal development. As regards the second ground of appeal on points of law, the Supreme Court referred to its judgment of 30 June 1998 (see paragraph 42 below) and found that the Court of Appeal had not failed to apply the criterion formulated in that judgment and that its finding was not incomprehensible in the light of the arguments adduced by the applicant. Referring to the applicable provisions of the CCP, the Supreme Court further held that the Court of Appeal had not applied an incorrect criterion in dismissing the request to examine investigating judge A. as a witness about the reliability of the statement made by X, and that its decision had not been incomprehensible and had been adequately reasoned. RELEVANT LEGAL FRAMEWORK AND PRACTICE         THE CODE OF CRIMINAL PROCEDURE

31. The Act of 11 November 1993, Official Gazette (Staatsblad) 1993, no. 603, has added to the CCP a number of detailed provisions relating to the “protection of witnesses”. It entered into force on 1 February 1994. 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). 32. The Explanatory Memorandum indicates that the statutory scheme aims to respect the rights of both the witness and the accused in the criminal proceedings. In the case of the witness, this concerns in particular the right to life and respect for private life, enshrined in Articles 2 and 8 of the Convention. In the case of the accused, it concerns the right to a fair trial, enshrined in Article 6 of the Convention. Effective respect for the rights of the witness may imply that his identity must be concealed during questioning, otherwise – in short – he would be in danger. However, such withholding of identity may be at odds with the right of the accused to a fair trial, because concealing the identity of a witness limits the defence’s ability to cross‑examine that witness. To compensate for this limitation, the legislature has created a scheme with various procedural safeguards. 33. The distinction between a witness with “limited anonymity” (in practice used, for example, to protect personal details of police officers of arrest, observation, and undercover teams) and a threatened witness with “full anonymity” is that a witness with limited anonymity may, in principle, be cross-examined during the examination by the investigating judge and at the trial hearing. If necessary to conceal that witness’ identity, the judge may order measures such as visual or acoustic shielding to be put in place, or order the accused to (temporarily) leave the hearing so that the examination can be conducted solely in the presence of the defence counsel. The judge may also prevent an answer if there is good reason to believe that disclosure of information will result in the witness experiencing serious problems in the exercise of his profession. When, however, a witness feels threatened to such an extent that it must reasonably be assumed that there is legitimate reason to fear for the life, health, safety or the stability of the family life or socio‑economic position of that witness, he or she may be granted the status of “threatened witness”. The legitimacy of such a threat must be established by the competent judicial authority. If the status of threatened witness has been granted, the investigating judge shall establish the identity of the threatened witness but shall examine that witness in such a way as to ensure that his or her identity remains fully concealed. 34. At the time of X’s examination as a witness in 2005 (see paragraph 7 above), the relevant provision of the CCP concerning a witness with “limited anonymity” read as follows:
Article 190
“1. The investigating judge shall ask ... witnesses ... to state their surnames and forenames, age, profession and place of residence or abode ... If the suspect is known, the investigating judge shall ask witnesses ... whether they are his relatives by blood or marriage, and if in the affirmative, in what degree of kinship. 2. The investigating judge may, of his own motion or on an application (vordering) by the public prosecutor or at the request of the suspect or the witness, determine that a question concerning the information referred to in the first paragraph will not be put if there is a well-founded reason to suspect that, in connection with the making of his statement, the witness will be inconvenienced or will be hindered in the exercise of his profession. The investigating judge shall take the measures which are reasonably necessary to prevent disclosure of this information. 3. The investigating judge shall state the reasons for which the provisions of the second paragraph have been applied in his official record. 4. In the case of an examination of a threatened witness, the first paragraph shall not apply.”
35. The statutory scheme governing the procedural position of a “threatened witness” comprises two separate procedures: one in which the decision is taken on granting the status of threatened witness (Articles 226a‑226b), and one concerning the examination of the threatened witness (Articles 226c-226f). The relevant provisions of the CCP – which applied at the time of the examination of X as such a witness (see paragraph 15 above) and are still in force now – state, in so far as relevant, as follows:
Article 136c
“‘Threatened witness’ shall be understood to mean a witness whose identity will not be disclosed when he is examined by order of the court under Article 226a [of the CCP].”
Article 226a
“1. The investigating judge shall order, of his own motion or on an application by the public prosecutor or at the request of the suspect or of the witness, that the identity of that witness shall be concealed while he is being examined, if:
(a)  the witness or another person, with regard to the statement to be made by the witness, feels threatened to such an extent that it must reasonably be assumed that there is legitimate reason to fear for the life, health, safety or the stability of the family life or socio-economic position of that witness or that other person; and
(b)  the witness has indicated that he does not wish to make a statement on account of this threat. If these requirements are not met, he shall reject the application or the request. 2. The public prosecutor, the suspect and the witness shall be given the opportunity to be heard on this matter. ...”
Article 226b
“1. The decision given by the investigating judge under Article 226a, first paragraph, shall be reasoned, dated and signed and shall be promptly notified in writing to the public prosecutor and served on the suspect and the witness, setting out the time-limit and the manner in which an appeal against the decision must be brought. 2. An appeal against the decision may be lodged by the public prosecutor ... and by the suspect and the witness ... with the trial court (gerecht in feitelijke aanleg) in which the case is being prosecuted. 3. The court shall decide as soon as possible. ... 4. The decision of the court shall not be open to appeal on points of law. 5. If it has been irrevocably decided on appeal that the witness is a threatened witness, the members of the court [who decided on that appeal] shall not take part in the court hearing (onderzoek ter terechtzitting) of the [criminal] case, and if they do take part then the proceedings shall be nullified. ...”
Article 226c
“1. Before examining a threatened witness, the investigating judge shall establish the witness’s identity and indicate that he has done so in the official record. 2. The witness shall be put under oath or admonished to tell the truth in accordance with the provisions of Article 216. 3. The investigating judge shall examine the threatened witness in such a way as to ensure that his identity remains concealed.”
Article 226d
“1. If required in the interest of keeping the identity of the threatened witness concealed, the investigating judge may determine that the examination of the threatened witness cannot be attended by the suspect or his counsel or both of them. In the latter case the public prosecutor shall not be allowed to attend either. 2. The investigating judge shall as soon as possible notify the public prosecutor, the suspect or, if he has not attended the questioning of the witness, his counsel of the contents of the statement made by the witness and give him the opportunity to submit, either by means of telecommunication or, if the interest in keeping the identity of the threatened witness concealed does not admit of that, in writing, the questions he would like to be put to the witness. Questions may be submitted before the start of the examination unless the interests of the investigation do not permit the examination to be delayed. 3. If the investigating judge prevents the public prosecutor, the suspect or his counsel from learning of an answer given by the threatened witness, the investigating judge shall have entered in the official record that the question put was answered by the threatened witness.”
Article 226e
“During the questioning the investigating judge shall investigate the credibility of the threatened witness and give account of his findings on that matter in the official record.”
Article 226f
“1. The investigating judge, where possible in consultation with the public prosecutor, shall take whatever measures are reasonably necessary to ensure that the identity of the threatened witness and of any witness in respect of whom a request or an application as referred to in Article 226a, first paragraph, has been submitted is concealed as long as no final decision in the matter has been taken. 2. To that end, he shall be authorised to omit information regarding the identity of the witness from the case documents or to anonymise case documents.
3.  ...”
36. Article 226b § 5 (see paragraph 35 above) is a specific expression of the principle of internal disclosure (beginsel van interne openbaarheid), which is a fundamental principle in Dutch criminal procedural law. This principle requires that the prosecution, the defence and the trial judge or judges have the same case file, with the same content, in the context of the trial of the suspect. In other words, the trial judge or judges are not allowed to know more than the defence or the prosecution (see also paragraph 43 below). The case file includes all documents that could reasonably be important for the decisions to be taken by the trial judge or judges (Article 149a § 2 of the CCP) and which are thus relevant for the parties to prepare their positions. The principle of internal disclosure serves equality of arms and the adversarial nature of criminal proceedings. 37. The Explanatory Memorandum (see paragraph 31 above) contains the following passages (at p. 10):
“From the Kostovsky judgment, the following safeguards can be inferred:
a. the investigating judge must inform himself of the identity of the witness and record in the minutes that he has done so (see art. 226c, first paragraph);
b. the investigating judge must properly verify the credibility and reliance of the anonymous witness and to account for that investigation (see art. 226e);
c. the right of cross-examination by the defence must be respected as much as the guarantee of anonymity allows (see art. 226d, paragraphs 1 and 2).”
and (ibid., p. 18):
“A threatened witness within the meaning of [the proposed Article 226a of the CCP] is only a witness who has been recognised as such by the competent judicial authority in accordance with the legal provisions. ... Once the competent judicial authority has decided that the identity of that witness must be kept concealed, this question should be left aside in the further course of the proceedings. The witness in respect of whom such an order has been given should therefore be considered to be a threatened witness in the further course of the criminal proceedings.”
and (ibid., p. 14):
“ If the anonymity were to apply only vis-à-vis counsel, the trial court will know more than counsel. I [the Minister of Justice] consider such a state of affairs to be contrary to the principle of internal disclosure which applies in our criminal procedural law.”
and (ibid., p. 43):
“The proposed Article 226b § 5 of the CCP provides that, if it has been irrevocably decided on appeal that the witness is a threatened witness, the members of the court sitting in chambers are not allowed to participate in the trial, and if they do take part then the proceedings shall be nullified. The principle of internal disclosure which applies in our criminal procedural law stands in the way of this. ... If the members of the court sitting in chambers, who had decided that the witness in question is a threatened witness, were allowed to participate in the trial, they would know more than the defence, especially in so far as the identity of the witness is concerned.”
38. Other relevant provisions of the CCP concerning criminal proceedings before the Regional Court are the following:
Article 344a
“1. The court may not base a finding that there is evidence that the suspect committed the offence as charged in the indictment solely or to a decisive extent (uitsluitend of in beslissende mate) on written materials containing statements of persons whose identity is not apparent. 2. An official record of examination conducted before the investigating judge containing a statement by a person who is deemed to be a threatened witness ... may be used as evidence that the suspect has committed the offence as charged in the indictment only if at least the following conditions have been met:
(a)  the witness is a threatened witness ... and has been examined as such by the investigating judge; and
(b)  the offence as charged in the indictment, to the extent proven, concerns a crime as defined in Article 67, first paragraph [of the CCP; that is, an offence in respect of which a suspect may be remanded in detention], and in view of its nature, the organised context in which it was committed, or the connection with other crimes committed by the suspect, constitutes a serious breach of the legal order.
3.  ...”
Article 360
“ 1. If a statement of ... a threatened witness ... [is] used as evidence, the judgment shall give specific reasons.
2. ... 4. All on pain of nullity.”
39. By virtue of Article 415 § 1 of the CCP, the provisions cited above apply equally to proceedings before the Court of Appeal. THE CRIMINAL CODE
40. At the time of Y.’s murder (see paragraph 5 above), Article 289 of the Criminal Code (Wetboek van Strafrecht) provided that anyone who intentionally and with premeditation took the life of another person was guilty of murder (moord) and liable to life imprisonment or to a term of imprisonment not exceeding twenty years or to a fifth-category fine. RELEVANT CASE-LAW OF THE SUPREME COURT
41. Pursuant to the closed system of legal remedies which governs criminal proceedings in the Netherlands, a decision or judgment taken in the course of a trial may be examined and/or quashed by a higher court only in so far as a legal remedy against the decision or judgment is provided for in law. In a judgment of 18 May 1999 (ECLI:NL:HR:1999:ZD1336) the Supreme Court agreed with the judgment of the Court of Appeal against which an appeal on points of law had been lodged that it would be contrary to this system for an investigating judge to be examined in court as a witness in relation to his or her decisions at any stage of the proceedings if as a result they could be held accountable, and that this rule could only be departed from in special cases. 42. In a judgment of 30 June 1998 (ECLI:NL:HR:1998:ZD1214) the Supreme Court held that it followed from the legislative history of Article 226a of the CCP (see paragraphs 35 and 37 above) that decisions on whether a witness was a threatened witness could not be re‑examined by the trial court unless the manner in which such a decision under Article 226a and/or Article 226b of the CCP (see paragraph 35 above) had been taken or the contents of that decision had been so fundamentally defective that the use by the trial court of the results of the subsequent questioning would violate the right of the accused to a fair trial as guaranteed in Article 6 of the Convention (see, in the same vein, the Supreme Court judgment of 28 March 2006, ECLI:NL:HR:2006:AU5471, and the Supreme Court judgment of 24 April 2014, ECLI:NL:HR:2018:666). 43. In a judgment of 20 April 1999 (ECLI:NL:HR:1999:ZD5266) the Supreme Court held that it followed from the legislative history of Article 226a of the CCP that it would be incompatible with the principle of internal disclosure (see paragraphs 36 and 37 above) if the trial court were to hear a threatened witness in camera without the presence of the prosecution and the defence. THE LAW
ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION
44. The applicant complained that he had not been afforded an opportunity to effectively challenge the evidence against him as a result of the procedure followed with regard to the questioning of anonymous witness X, whose incriminating statements had been used in his conviction for murder, contrary to Article 6 §§ 1 and 3 (d) of the Convention, which in so far as relevant reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
... 3. Everyone charged with a criminal offence has the following minimum rights:
... (d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
...”
   Admissibility
45. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. Merits     The parties’ submissions   The applicant

46. The applicant submitted that his right to examine witness X was wrongly restricted, arguing that there had been no good reason to grant X the status of threatened witness. In that connection the applicant submitted that the Regional Court sitting in chambers had decided on the appeal against the decision not to grant the witness that status without having consulted investigating judge A., who had spoken in person to X and was, the applicant argued, thus the only one to have formed an adequate judgment about whether the granting of the status of threatened witness was necessary. 47. With regard to the evidentiary weight of the statements of X, the applicant submitted that they had been decisive or significant in his conviction since the remainder of the evidence on which his conviction had been based consisted merely of a discarded cigarette butt with the applicant’s DNA on it and witness statements by his ex-girlfriend. 48. As to the presence of counterbalancing factors, the applicant argued that although the defence had been somewhat compensated by the opportunity to submit written questions to the anonymous witness, it had been unable to judge his or her credibility. Multiple requests for investigating judge A. to be heard had been dismissed. The fact that the Regional Court sitting in chambers and the trial courts had formed their own opinion about X’s credibility had been insufficient compensation. The Government
49. The Government submitted that there had been good reasons for concealing the identity of X and that the domestic courts had had objective grounds supported by evidence for doing so. They noted that the question whether the anonymous witness X should be granted the status of threatened witness was extensively assessed in the criminal proceedings and that before deciding on the appeal and concluding that X was entitled to the protection afforded by Article 226a of the CCP, the Regional Court sitting in chambers had heard the public prosecutor and X’s lawyer. The witness had felt the existence of a threat to his or her life, health and safety, had specifically feared the applicant, and had indicated that he or she had always wanted full anonymity as a condition for making a statement. The case had involved a murder suspect who had received previous non-suspended custodial sentences, the case was linked to a notorious drug‑trafficking organisation, X was familiar with these facts and circumstances, and the applicant had become aware of the existence of his or statement made in 2005. The Government also noted that the threat assessment requested by investigating judge V. had provided further grounds, albeit retrospectively, for the decision to grant X the status of threatened witness. 50. The Government submitted that the statements of X had been neither the sole nor the decisive basis for the applicant’s conviction, noting that his conviction was based on twenty items of evidence and that the domestic courts had explicitly established that due to the existence of other corroborative and incriminating evidence – in particular the statements of the applicant’s ex-girlfriend and the findings of the technical forensic investigation – X’s statements had not been determinative for the outcome of the case. Relying on the Court’s case-law, the Government considered that the assessment by the domestic courts of the weight attributable to X’s statement was neither unclear, nor unacceptable, nor arbitrary. 51. The Government further submitted that in so far as X’s statements had to be considered as carrying “significant weight”, sufficient counterbalancing factors had been present. In the light of the elements indicated by the Court in Schatschaschwili v. Germany ([GC], no. 9154/10, § 145, ECHR 2015), they firstly observed that the domestic courts had made it clear in their reasoned judgments that the statements of the anonymous witness must be treated with caution, and that investigating judge V. and the domestic courts had made a careful assessment of the credibility and reliability of X. 52. The Government subsequently noted that the domestic courts had assessed the availability and strength of further incriminating evidence and had determined that the findings of the criminal investigation and the statements of the applicant’s ex-girlfriend who had been cross-examined during the proceedings at first instance, constituted substantial corroboration of X’s statements. This had reduced the weight accorded to the statements of X and increased the likelihood that he or she had been reliable. 53. Thirdly, as regards procedural measures to compensate for the inability to directly cross-examine the witness, the Government noted that the applicant had been invited to submit written questions to X (the answers to some of which had been left out of the official record only in so far as necessary to ensure anonymity) and to submit further written questions (of which he had not made use), that he had been heard on the prosecutor’s application to grant threatened witness status to X, that he had been in a position to give his own version of the events, and that equality of arms with the public prosecutor had been respected. Questioning investigating judge A., as requested by the applicant, would not have been a counterbalancing factor for the assessment of the reliability of the witness X since pursuant to national law it is the investigating judge examining the threatened witness (which was investigating judge V.) who is entrusted with that assessment. 54. Finally, the Government noted that a further procedural safeguard laid in the fact that the domestic courts had assessed and convincingly explained that no fundamental defects existed in the order granting X the status of threatened witness and that the use of the results of the subsequent examination of that witness had not violated the applicant’s rights under Article 6 of the Convention. The Court’s assessment   Relevant principles

55. The Court’s primary concern under Article 6 § 1 of the Convention is to evaluate the overall fairness of the criminal proceedings (see, among many other authorities, Taxquet v. Belgium [GC], no. 926/05, § 84, ECHR 2010, and Schatschaschwili, cited above, § 101). Compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident. In evaluating the overall fairness of the proceedings, the Court will take into account, if appropriate, the minimum rights listed in Article 6 § 3, which exemplify the requirements of a fair trial in respect of typical procedural situations which arise in criminal cases. 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). 56. The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law, and as a general rule it is for the national courts to assess the evidence before them. As regards statements made by witnesses, the Court’s task under the Convention is not to give a ruling as to whether those statements were properly admitted as evidence, but rather – as already set out in paragraph 55 above – to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among many other authorities, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 50, Reports of Judgments and Decisions 1997‑III, and Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003‑V). 57. Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. 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). Principles on the admission of untested evidence of prosecution witnesses absent from trial
58. In Al-Khawaja and Tahery (cited above, § 119) the Grand Chamber of the Court summarised and refined the principles to be applied in cases where a prosecution witness did not attend the trial and statements previously made by him or her were admitted as evidence. The compatibility of such proceedings with Article 6 §§ 1 and 3 (d) of the Convention must be examined in three steps: (i) whether there was a good reason for the non-attendance of the witness and, consequently, for the admission of the absent witness’s untested statement as evidence (ibid., §§ 119-25); (ii) whether the evidence of the absent witness was the sole or decisive basis for the defendant’s conviction (ibid., §§ 119 and 126-47); and (iii) whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps faced by the defence as a result of the admission of the untested evidence and to ensure that the trial, judged as a whole, was fair (ibid., § 147). 59. Where absence is the result of fear, a distinction can be drawn between fear attributable to threats or other actions of the defendant or those acting on his behalf and fear attributable to a more general fear of what will happen if the witness gives evidence at trial. In the former case, it is appropriate to allow a statement of that witness to be introduced at trial even if it is the sole or decisive evidence against the defendant, because to allow the defendant to benefit from the fear he has engendered in witnesses would be incompatible with the rights of victims and witnesses. As to the latter, there is no requirement that a witness’s fear be attributable directly to threats made by the defendant in order for that witness to be excused from giving evidence at trial. This does not mean, however, that any subjective fear of the witness will suffice. The trial court must conduct appropriate enquiries to determine, first, whether or not there are objective grounds for that fear, and, second, whether those objective grounds are supported by evidence (ibid., §§ 122-124). 60. Those principles have been further clarified in Schatschaschwili (cited above, §§ 111-31). The Grand Chamber of the Court explained that “good reason for the absence of a witness” must exist from the trial court’s perspective, that is, the court must have had good factual or legal grounds not to secure the witness’s attendance at the trial. If there was a good reason for the witness’s non‑attendance in that sense, it followed that there was a good reason, or justification, for the trial court to admit the untested statements of the absent witness as evidence (see Schatschaschwili, cited above, § 119). While the absence of a good reason for the non‑attendance of the witness could not of itself be conclusive of the unfairness of the applicant’s trial, it was a very important factor to be weighed in the balance when assessing the overall fairness of a trial, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d) of the Convention (ibid., § 113). 61. As regards the question whether the evidence of the absent witness whose statements were admitted in evidence was the sole or decisive basis for the defendant’s conviction (the second criterion of the Al-Khawaja and Tahery test), the Court reiterated that “sole” evidence is to be understood as the only evidence against the accused and that “decisive” should be narrowly interpreted 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 supporting evidence; the stronger the corroborative evidence, the less likely that the evidence of the absent witness will be treated as decisive (see Schatschaschwili, cited above, § 123). 62. The Court further held that it is not for it to act as a court of fourth instance, its starting-point for deciding whether an applicant’s conviction was based solely or to a decisive extent on the depositions of an absent witness being the judgments of the domestic courts. The Court must review the domestic courts’ evaluation in the light of the meaning it has given to “sole” and “decisive” evidence and ascertain for itself whether the domestic courts’ evaluation of the weight of the evidence was unacceptable or arbitrary. It must further make its own assessment of the weight of the evidence given by an absent witness if the domestic courts did not indicate their position on that issue or if their position is not clear (ibid., § 124). 63. 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). 64. Furthermore, given that its concern is to ascertain whether the proceedings as a whole were fair, the Court should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence (see Schatschaschwili, cited above, § 116). Similarities and differences between anonymous and absent witnesses
65. 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, § 127, and Süleyman, § 62 and the references cited therein, both cited above). The Court therefore takes a similar approach to the admission in evidence of statements of an absent witness and of statements of a witness whose identity is concealed. 66. The Court has, however, also recognised that the precise limitations on the defence’s ability to challenge an anonymous witness differ from those in respect of an absent witness whose identity, after all, is known. 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). Accordingly, the use in evidence of a fully anonymous witness statement and the inability to question that witness at trial may exacerbate the extent of the handicap under which the defence is labouring. 67. Like 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. 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). Application of these principles to the present case      Whether there were good reasons justifying the protection of the identity of the witness

68. Although it is true that the precise source of X’s fears was never made known to the defence or the public, the seriousness and well-foundedness of his or her apprehensions were examined by the Regional Court sitting in chambers. The Court observes that when it granted him or her the status of threatened witness, the Regional Court provided detailed reasoning in respect of the danger associated with the applicant and the impact of that danger on X, and it established that X would fear for his or her life, health and safety if his or her identify would become known (see paragraph 14 above). That court did not rely solely on the information provided by X but also on objective facts which could be reasonably considered to have contributed to fear on the part of X. In particular, the applicant was suspected of having been hired by someone to whom the victim, Y., owed money for a drugs deal (see paragraphs 7 and 8 above) and X knew that the applicant had already received many previous non-suspended custodial sentences, including for violent crimes (see paragraph 22 above). 69. The main reason why investigating judge A. refused to grant that status was that X had already made a statement in 2005 as a witness with limited anonymity. In this connection, it is noted however that when X had been examined by the investigation judge in 2005, there was no murder suspect who could have asked to cross-examine him or her. The Regional Court sitting in chambers also drew attention, among other things, to the fact that X, who had not been represented by counsel when making the statement in 2005, had probably been unaware of the differences between Articles 190 and 226a of the CCP, and that an average witness could not be expected to understand the legal details of the status accorded by those provisions. The fact that the applicant, who in 2010 had been arrested and charged with involvement in Y.’s murder, had become acquainted with the incriminating witness statement against him and had asked for X to be heard at the trial presented, according to the court, a change of circumstances that led it to grant X a more protective status. 70. In the light of the explicit and case-specific findings on this point, it cannot be said that the court’s decision to grant X the status of threatened witness was unclear or insufficiently substantiated (contrast Visser v. the Netherlands, no. 26668/95, §§ 47-48, 14 February 2002; Krasniki v. the Czech Republic, no. 51277/99, §§ 81-83, 28 February 2006; and Süleyman, cited above, §§ 70-71 and 74-75), or that the reasons put forward for doing so were speculative (contrast Bocos-Cuesta v. the Netherlands, no. 54789/00, § 72, 10 November 2005) or based exclusively on the seriousness of the crimes committed (contrast Van Mechelen and Others, cited above, § 61). 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). 71. In the light of the above, the Court is prepared to accept that there was a good reason justifying the protection of X’s identity. Whether the evidence of the witness X was the sole or decisive basis for the applicant’s conviction
72. The Court observes that the statements of X were not the sole basis for the applicant’s conviction, nor was this alleged by him. The Court further notes that the Regional Court and the Court of Appeal explicitly held that the statements of X did not form the decisive evidence for their guilty verdicts. The Court of Appeal elaborated on that finding by holding that the statements of X corresponded in many essential respects with those of the applicant’s ex-girlfriend which were corroborated by the statements of other witnesses and the applicant (see paragraph 26 above), and the discarded cigarette butt with the applicant’s DNA on it, with the latter providing a compelling temporal and geographical connection between the applicant and the murder of Y. – a connection for which the applicant had failed to give a consistent and convincing alternative explanation (see paragraphs 24, 26 and 27 above). 73. The above finding of the appellate court is neither arbitrary nor manifestly unreasonable. Considering that it is not its role to act as a court of fourth instance, the Court sees no reason to substitute its own assessment of the weight of the statements in question for that of the Court of Appeal (see Schatschaschwili, §§ 124 and 141-44, and Keskin v. the Netherlands, §§ 50 and 64, both cited above). 74. In view of the above, the Court accepts the Court of Appeal’s finding that the applicant’s conviction was not based solely or decisively on the statements of X. Nevertheless, noting that the statements of X were not of insignificant weight in that they were used to corroborate those of the applicant’s ex-girlfriend and assess her reliability and credibility (see paragraphs 19 and 26 above), and given the need under Article 6 to assess the fairness of the proceedings taken as a whole, the Court will now determine whether there were sufficient factors counterbalancing any handicaps that the admission of that evidence might have entailed for the defence. Whether there were sufficient counterbalancing factors
75. 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 paragraph 63 above). 76. In this connection, the Court has held that the question whether there were sufficient counterbalancing factors is closely related to the evidentiary weight of the statements of an untested witness, which is, in turn, inversely related to the evidentiary weight of other items of evidence. In other words, the more important the remaining evidence, the less evidentiary weight is attributed to the statements of an untested witness and, in turn, the less weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair (see, mutatis mutandis, Al‑Khawaja and Tahery, §§ 131 and 139; Schatschaschwili, §§ 116 and 123; and, more recently, Asani, §§ 34 under item (vi) and 35, all cited above). 77. With respect to the domestic courts’ approach to the untested evidence and the presence of further incriminating evidence, the Court observes that the Court of Appeal examined the weight, coherence and consistency of X’s statements and cross-referenced them with other available evidence and satisfied itself in a careful manner with detailed reasoning (see paragraphs 25-27 above) that the statements of X were reliable. In this connection, the appellate court considered both the findings on that point by two investigating judges (E. and V.) and the corroborating evidence, principally the strongly similar statements of the applicant’s ex-girlfriend (whose reliability had been tested by cross-examination and who was not suspected of collusion), and the applicant’s DNA being found on the cigarette butt, in addition to other findings of the criminal investigation (see paragraph 25 above). This reasoning, moreover, withstood scrutiny by the Supreme Court, which dismissed the applicant’s first ground of appeal on points of law and confirmed the judgment of the Court of Appeal (see paragraph 30 above) (see, mutatis mutandis, Breijer, cited above, § 35). 78. With respect to the procedural measures taken to compensate for the lack of opportunity to directly cross-examine the witness at trial, the Court observes the following. While noting that the principle of immediacy would have been better served if the trial judges had been able to assess X’s credibility by knowing his or her identity and questioning the anonymous witness themselves – or, at the very least, by receiving the full transcript (thus without answers redacted) of the questioning by the investigating judge –, the Court notes, however, that the procedure prescribed by Articles 226a to 226f of the CCP, which is specifically intended to provide compensatory procedural safeguards, was followed (see paragraphs 13-18, 22-27 and 31-37 above). That procedure, as applied in Kok (cited above), was held to sufficiently respect the rights of the defence in that case. The Court also notes that Article 360 §§ 1 and 4 of the CCP (see paragraph 38 above) provides an additional procedural safeguard: if a statement by a threatened witness is used as evidence, the trial court is required to give specific reasons as to the reliability of that statement (see paragraph 25 above). 79. Turning to the case at hand the Court notes that the investigating judge V., who had established X’s identity, decided to examine him or her on a secret location which decision was based on a safety assessment provided by the witness protection department on his request. He deemed this measure necessary in order to secure X’s safety (see paragraph 15 above). Not only the defence but also the public prosecutor was absent (see paragraph 15 above). The witness was put on oath before the interrogation. The questions asked included a large number submitted in writing beforehand by the defence; in addition, after receiving the (partly redacted) answers, the defence was offered an opportunity to put further questions in writing to X (see paragraphs 16 and 24 above) and, by doing so, to cast doubt on the credibility of his or her testimony (see Scholer v. Germany, no. 14212/10, §§ 21 and 60, 18 December 2014). 80. The Court has recognised that the nature and scope of questions put to an anonymous witness are considerably restricted by reason of that anonymity (see Asani, cited above, § 42) and that the right to put written questions to such a witness cannot, in particular in the absence of good reasons (the first criterion of the Al-Khawaja and Tahery test), be seen as a substitute for the fundamental right to examine witnesses (see, mutatis mutandis, Süleyman, cited above, §§ 95 and 98). On the other hand, the Court is equally mindful that in the present case the defence refrained from making use of the opportunity to put additional questions. By this course of action the defence may be considered to have waived the right to challenge the credibility of X’s statements as regards any incoherence in his or her statements or inconsistencies between his or her statements and those of other witnesses. The defence should have been aware that the testimony thus obtained could be used as evidence at trial (see, mutatis mutandis, Sarkizov and Others v. Bulgaria, nos. 37981/06 and 3 others, § 57, 17 April 2012, concerning the applicant’s waiver of the right to put questions to an anonymous witness during the pre-trial stage). 81. Moreover, the Court notes that the reliability and credibility of X had been assessed positively by investigating judge E. in 2005 and investigating judge V. in 2012, whose independence and impartiality provided an important procedural safeguard for the fairness of the proceedings (see, mutatis mutandis, Van Wesenbeeck v. Belgium, nos. 67496/10 and 52936/12, § 107, 23 May 2017). The Court notes that while the applicant could have submitted a request to question investigating judges E. and V. at trial on this point (see also Kok, cited above), he did not avail himself of that opportunity. In this connection, the Court further notes that questioning investigating judge A. on the reliability of witness X, as requested by the applicant, could not have served as an additional counterbalancing factor because, as explained in the Court of Appeal’s judgment, pursuant to the applicable national law it is the investigating judge examining the threatened witness (investigating judge V.; see paragraph 15 above) who is entrusted with that assessment. Lastly, the Court notes that it also follows from the appellate court’s judgment that, with a view to safeguarding the applicant’s right to a fair trial, it examined whether the decision to grant X the status of threatened witness and the way in which the Regional Court sitting in chambers had reached that decision, had involved any violations of fundamental principles (see paragraph 22 above). 82. In the light of the foregoing and considering that X’s statements were not the sole or decisive evidence for the applicant’s conviction, the Court finds the difficulties encountered by the defence in connection with the anonymity granted to X were sufficiently counterbalanced by the procedures applied by the judicial authorities. Conclusion
83. Taking into account the particular facts and circumstances of the case, the Court finds that it cannot be said that the criminal proceedings against the applicant, when considered as a whole, were rendered unfair by the admission in evidence of the statements of X. 84.

Outcome for Article 6: no_violation