Witness Evidence, Article 6 of the European Convention on Human Rights and the Principle of Open Justice
ANNEMARIEKE BEIJER, CATHY COBLEY, AND ANDRE KLIP
In any democratic society the principle that criminal procedures are carried out in public is considered to be of vital importance. Article 6 of the European Convention on Human Rights provides that 'in the determination . . . of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law . . .' and that 'everyone charged with a criminal offence has the following minimum rights: . . . 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.' Article 6 aims to protect litigants against the administration of justice in secret with no public scrutiny:
By Tendering the administration of justice visible, publicity contributes to the aim of Article 6--namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention.1
But publicity is only one aspect of the principle of open justice. A second element is that all the evidence is to be presented in open court, in the presence of the defendant and the judge, where it is subject to challenge. This means a witness is generally required to give his evidence orally in open court where he can be examined.
However, a public trial is often traumatic for all involved and may even endanger the safety, not only of the suspect but also the witnesses, who play a central role in any criminal trial--as Bentham commented 'witnesses are the eyes and ears of justice'. It has long been recognized that, without the co-operation of witnesses, legal systems would simply cease to function. However, some witnesses are more vulnerable than others. For example, a witness who has been frightened by the defendant or his associates will____________________