CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 6 février 2024

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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 admo