Problems Using the Anonymous Witness

Matanat Pasha Asgarova

Abstract

The article examines the procedural issues of using anonymous witnesses in national legislation and international Law. The study aims to improve the scientific and practical foundations for using anonymous witnesses. The countries' legislation allows exceptions from the direct examination of evidence in court, and anonymous witnesses should also be attributed to these exceptions, fulfilling specific requirements defined in the case law of the ECHR.

The term “pseudonym” should be enshrined in the CPC governing the participation of an anonymous witness in criminal proceedings. A pseudonym must meet the requirements of anonymisation and exclusion of identification and be distinguished by reliability. There may be cases when a pseudonym is chosen by a witness who, when selecting, cannot subconsciously choose a surname and letters that he often used, which increases the risk of recognising the witness.

During the trial, anonymous witnesses are usually located in a particular room for witnesses under a pseudonym. They remain invisible to the participants in the process but also to the court. This circumstance deprives the court of verifying the voluntariness of testimony and the absence of pressure on the witness. Various ways induce a witness to perjury and give the necessary testimony. Anonymising a witness may also arise after they have given evidence in the usual manner. Laws that allow anonymous witnesses do not consider the court's right to verify the testimony's circumstances, the voluntariness of the testimony and the absence of pressure on the witness. Classifying witnesses is regulated mainly by subordinate acts for official use. The method of classifying witnesses should be held by a particular law or supplemented by the CCP governing the use of anonymous witnesses. The court should have the right to check the voluntariness of testimony and the absence of pressure on a witness to give false testimony.



Keywords


anonymous witnesses; pseudonym; testimony; classifying of witness; security; pressures

Full Text:

PDF


References


Alan Ward, G. (2012). The evidence of anonymous witnesses in criminal courts: now and into the future. The Denning Law Journal, 21(1), 67–92. doi: 10.5750/dlj.v21i1.342

Case of Al-Khawaja and Tahery v. the United Kingdom [GC] (Council of Europe), 15.12.2011. URL: Retrieved October 20, 2022 from https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22002-262%22]}

Case of Visser v. the Netherlands (Council of Europe), 14.02.2002. Retrieved October 20, 2022 from https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-60112%22]}

Case of Birutis and others v. Lithuania (Council of Europe), 28.03.2002. Retrieved October 20, 2022 from https://jurinfo.jep.gov.co/normograma/compilacion/docs/pdf/CASE%20OF%20BIRUTIS%20AND%20OTHERS%20v.%20LITHUANIA.pdf

Case of Kostovski v. the Netherlands (Council of Europe), 20.11.1989. Retrieved October 20, 2022 from https://hudoc.echr.coe.int/app/conversion/docx/?library=ECHR&id=001-57615&filename=CASE%20OF%20KOSTOVSKI%20v.%20THE%20NETHERLANDS.docx&logEvent=False

Ceza Muhakemesi Kanunu [Criminal Procedure Code] (Turkey), 17.12.2004, No 25673. Retrieved October 20, 2022 from https://www.mevzuat.gov.tr/mevzuatmetin/1.5.5271.pdf (in Turkish).

Cesare Bonesana di Beccaria, & Voltaire (1764). An Essay on Crimes and Punishments. Retrieved from http://files.libertyfund.org/files/2193/Beccaria_1476_EBk_v6.0.pdf

Declaration on freedom of communication on the Internet (Council of Europe), 28.05.2003. Retrieved October 20, 2022 from https://rm.coe.int/16805dfbd5

Criminal Evidence (Witness Anonymity) (UK), 2008. Retrieved October 20, 2022 from https://www.legislation.gov.uk/ukpga/2008/15/contents

Case of Doorson v. the Netherlands (Council of Europe), 26.03.1996. Retrieved October 20, 2022 from https://www.hr-dp.org/files/2013/09/08/CASE_OF_DOORSON_v._THE_NETHERLANDS_.pdf

Tatar, E. (2013). Gizli Tanık [Secret Witness]. Ankara Barosu Dergisi, 4, 284-296 (in Turkish).

Rules of Curt (ECHR), 03.10.2022. Retrieved October 20, 2022 from https://www.echr.coe.int/documents/rules_court_eng.pdf

Rome Statute of the International Criminal Court (International), 01.07.2002. Retrieved October 1, 2022 from https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf

The Code of Criminal Procedure of the Azerbaijan Republic (Azerbaijan). Retrieved October 1, 2022 from https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/64892/92594/F1457735324/AZE64892.pdf

The Criminal Procedure Code of the Republic of Kazakhstan (Kazakhstan), 04.07.2014, No 231. Retrieved October 1, 2022 from https://adilet.zan.kz/eng/docs/K1400000231

The Criminal Procedural Code of the Republic of Moldova (Moldova), 14.03.2003, No 122-XV. Retrieved October 1, 2022 from https://cjad.nottingham.ac.uk/documents/implementations/pdf/criminal_procedure_code_moldova_en_2003_tb040712.pdf

The Criminal Procedure Code of Ukraine (Ukraine), 13.04.2012, No 4651-VI. Retrieved October 1, 2022 from https://zakon.rada.gov.ua/laws/show/4651-17?lang=en#Text

Van Mechelen and Others v. The Netherlands (Council of Europe: European Court of Human Rights), 23 April 1997, No 55/1996/674/861-864. Retrieved October 1, 2022, from https://www.refworld.org/cases,ECHR,3ae6b6778.html


Article Metrics

Metrics Loading ...

Metrics powered by PLOS ALM

Refbacks

  • There are currently no refbacks.




Copyright (c) 2022 Matanat Pasha Asgarova

Creative Commons License
This work is licensed under a Creative Commons Attribution 4.0 International License.