Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement Recourse to anonymous witnesses was to the fore in the case of Kostovski examined under article 6(1) and (3)(d) of the European Convention on Human Rights, where two such witnesses had been heard by the police and, in one case, also by the examining magistrate, but were not heard at the applicant’s trials. Not only were the witnesses “not heard at the trials but also their declarations were taken ... in the absence of Mr Kostovski and his counsel” and, therefore, “at no stage could they be questioned by him or on his behalf”.165 The defence had, inter alia, the possibility of submitting written questions “indirectly through the examining magistrate”, but “the nature and scope of the questions it could put ... were considerably restricted by reason of the decision that the anonymity of the authors of the statements should be preserved”.166 This fact “compounded the difficulties facing the applicant”, because, “if the defence is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable”. In the view of the European Court, “the dangers inherent in such a situation are obvious”.167 Another aspect was that “each of the trial courts was precluded by the absence of the said anonymous persons from observing their demeanour under questioning and thus forming its own impression of their reliability”.168 The applicant, who had a long criminal record, was convicted of holding up a bank, and the Government defended the use of anonymous witnesses by citing the need to balance the interests of society, the accused and the witnesses themselves, in view of the increasing frequency of intimidation of witnesses in the Netherlands. In this particular case, the authors of the statements on which the applicant’s conviction was based “had good reason to fear reprisals”.169 Although the Court admitted that the Government���s line of argument was “not without force”, it was “not decisive”, and it went on to make the following statement, which merits quoting in extenso: “Although the growth in organized crime doubtless demands the introduction of appropriate measures, the Government’s submissions appear to the Court to lay insufficient weight on what the applicant’s counsel described as ‘the interest of everybody in a civilised society in a controllable and fair judicial procedure’. The right to a fair administration of justice holds so prominent a place in a democratic society ... that it cannot be sacrificed to expediency. The Convention does 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, is a different matter. It involved limitations on the rights of the defence which were irreconcilable with the guarantees contained in Article 6. In fact, the Government accepted that the applicant’s conviction was based ‘to a decisive extent’ on the anonymous statements.”170 165 Eur. Court HR, Kostovski Case v. the Netherlands, judgment of 20 November 1989, Series A, No. 166, p. 20, para. 42. 166 Ibid., loc. cit. 167 Ibid. 168 Ibid., para. 43. 169 Ibid., p. 21, para. 44. 170 Ibid., loc. cit. 290 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers