WITNESSES AT TRIAL. Case: Doorson v Netherlands. ECHR Article: Article 6 The Right to a Fair Trial Project group: University of Glasgow

Transcription

1 Case: Doorson v Netherlands WITNESSES AT TRIAL ECHR Article: Article 6 The Right to a Fair Trial Project group: University of Glasgow A LANDMARK DECISION A.0 RATIONALE: WHY THIS ARTICLE? WHY THIS JUDGMENT? Article 6 outlines the right to a fair trial. This is a significant case given that it demonstrates the importance of having a judicial system in place which ensures an individual's right to a fair trial. This case looks at one particular aspect of the right to a fair trial, Article 6(3)(d), which ensures that everyone has the right to examine or have examined witnesses used in the conviction of a crime. Doorson is an important judgement as it allowed the Court to provide guidance about how criminal justice systems can ensure compliance with this provision. A.1 BACKGROUND AND FACTS A.1.1 APPLICANTS The applicant was Mr Doorson who was arrested in 1988 on suspicion of drug trafficking, on the basis of statements provided to the police by eight drug addicts. A.1.2 CASE SUMMARY The applicant was identified as a drug dealer by a number of witnesses who were known to be drug-users. He was placed on trial. Six of the witnesses who identified the applicant remained anonymous as they feared a reprisal from Mr Doorson the identities of a further two were disclosed. Mr Doorson s lawyer asked the court to summon these anonymous witnesses but was refused. Of the two identified witnesses, only one appeared at trial and that witness withdrew his statement. The evidence of the second identified but absent witness was therefore read out in court. The applicant was convicted as charged. On appeal, the need for the witnesses to remain totally anonymous was brought into doubt, and they were subsequently questioned extensively by the judge and Mr

2 Doorson s lawyer (though not in the presence of Mr Doorson). The Court of Appeal and later the Supreme Court upheld his conviction based on three separate elements: (1) the oral evidence of the witness who was questioned at trial but withdrew his statement to the police; (2) two anonymous witnesses who were questioned orally and cross-examined by Mr Doorson s lawyer; and (3) one witness who made a statement to the police and then disappeared. A.1.3 KEY QUESTIONS BEFORE THE COURT The facts of this case show the balance that must be struck between the need for fair procedures in trial and the need for results in the public interest. Mr Doorson complained that there had been an infringement of Article 6(1) and Article 6(3)(d) on the grounds that he had been convicted on the evidence of witnesses who had not been heard in his presence. The Government argued that the need to protect the identity of the witnesses made it necessary to exclude Mr Doorson from their questioning. Further, the Government argued that it had counterbalancing measures in place for example, allowing Mr Doorson s lawyer to cross-examine the witnesses to make sure that despite not hearing the witnesses, Mr Doorson still received a fair trial. A.2 COURT RESPONSE TO THE QUESTIONS ASKED The Court concluded that the conviction of the applicant was fair. The court recognised that the Dutch criminal justice system had sufficient counterbalancing measures in place to ensure that convictions were still safe under Article 6. The court emphasised, however, that even where there are counterbalancing measures in place, a conviction should not be based either solely or decisively on anonymous witness statements. Extreme care should be taken when anonymous witnesses are involved. The Court decided that the defence had had ample opportunity to examine the witnesses against the applicant in this case. The Dutch criminal justice system struck a fair balance between the interests of the criminal and the public interest to prosecute crimes. A.3 COURT CONCLUSIONS

3 The Court decided that there was not a violation of Article 6. The particular counterbalancing measures in the Dutch criminal justice system satisfied the Court that the conviction was safe under Article 6. A.4 CONCURRENT OPINIONS AND DISSENTS, IF RELEVANT There were two dissenting opinions in this case concerning the fact that the applicant s conviction was based mainly on untested evidence. Two of the cooperating witnesses were anonymous and one disappeared from the court premises, never to be found again. Thus, it was impossible for this witness to be tested. A.5 COMMENTARY (MAIN PRINCIPLES) This case is significant as it provides some guidance as to the fundamental features a criminal justice system must possess in order to be compliant with Article 6. Despite the Court deciding a non-violation, the main principle to be taken from the judgment is that a conviction should not be based solely or decisively on untested, anonymous witness statements. Where there are anonymous witnesses involved, the state must take extreme care and have other measures in place to balance the fairness of the trial. The Court has stressed this message in other cases, for example, in A and others v UK where anonymous evidence was held to be a violation of the Convention, and in Al- Khawaja v UK where the anonymous evidence was not a violation of Article 6 on the basis of the balancing measures in the UK justice system. A.6 EXECUTION OF JUDGMENT: SPECIFIC AND GENERAL MEASURES This case was a non-violation as it was deemed that the measures brought in by the Dutch authorities in the previous case of Kostovski v the Netherlands (11454/85) were sufficient. A number of modifications relating to the entitlement of witnesses to remain anonymous were introduced to the Dutch Code of Criminal Procedure in B EDUCATIONAL ACTIVITIES B.1 ACTIVITY PLAN Introduction: In this lesson pupils will be guided through the case of Doorson v. the Netherlands in order to learn the importance of the right to a fair trial. Through class

4 and group discussion the pupils will gain an understanding of the scope of Article 6 of the Convention. Concept/Topic: The pupils will learn about the human rights principles in the case of Doorson v. the Netherlands. Learning Objectives: - Knowledge and Understanding o The pupil will be able to understand the scope of Article 6 (right to a fair trial) and, specifically, Article 6(3)(d), which deals with the examination of witnesses in criminal trials of the Convention. o The pupil will be able to understand how Article 6(3)(d) is interpreted by the Court. o The pupil will be able to understand the concept of a fair trial and its importance. o The pupil will be able to understand the role of Article 6 within the criminal justice system. - Skills o The pupil will be able to identify arguments of both sides from a set of facts. o The pupil will be able to effectively communicate an argument. o The pupil will be able to listen to another s point of view. o The pupil will be able to recognise violations of Article 6. - Attitude o To appreciate the importance of Article 6 of the Convention. - Time Learning activity: Aims / content Method Teacher activities students activities Assignment category Material Part 1 Class Discussion Project or write the words 'Fair Trial' for the class to see. Ask the students: 1. What do they think of when they see the

5 words fair trial? 2. What things do they think would make a trial unfair? 3. Why do they think the right to a fair trial might be important in a democratic society? Divide the board into two sides one side headed 'Fair' and the other 'Unfair'. List the students' ideas. Project Article 6 for the class to see. Discuss the parts in bold and see how many of these situations arose in discussion. Handout 1 Ask the students in groups of two or three: 1. Imagine they have been arrested or detained. 2. Come up with a list of rights that they would want if they found themselves in this position. 3. Consider whether they think that a lawyer should be present during police questioning. 4. Should a lawyer be present if the accused is questioned at the scene of the alleged crime? Handout 2 Draw attention to section 6(3)(c) regarding the examination of witnesses. 1. Consider why witnesses are an important part of a fair trial. 2. Why might you want to question witnesses yourself in court? Split the students into four groups and assign each group with one of the following cards. Give them some time to discuss and then choose on student to report back to the class. Handouts 3 & 4

6 Part 2 Give the students Handout 5 which contains the description of Doorson v. the Netherlands. Place the students in groups of four or five to discuss the questions. One student per groups presents the results of the discussion to the class. Handout 5 Discuss the outcome of the case with the class and see how many students agreed with the decision. In the same groups consider Handout 6. A different student presents the results to the rest of the class. Handout 6 Didactical approach Each education system, school or group has a certain way of organising a learning activity. In order to achieve a certain consistency in all the learning activities, please try to use this frame (being aware of the fact at the same time that the way of preparing a learning activity is culture sensitive.) B.2 MATERIAL Handout 1: (Teacher Guideline) Text of Article 6 Handout 2: (Teacher Guideline) Questions of Detention Handout 3: Card A Handout 4: Card B Handout 5: Class questions Handout 6: Discussion

7 B.2 MATERIAL: PROJECTION/ HANDOUT 1: THE TEXT OF ARTICLE 6 Article 6 The Right to a Fair Trial 1. In the determination of his civil rights and obligations or 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. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and the facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (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; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

8 HANDOUT 2: (TEACHER GUIDELINE) QUESTIONS ON DETENTION Some Guidance on Detention HANDOUT 3: CARD A CARD A Two teenagers are arrested on suspicion of committing arson. The only witness is a convicted criminal. The police refuse to allow the teenagers to have their choice of lawyer present and tell them that they may only have the duty lawyer present for reasons of expediency. The teenagers choose not to have the duty lawyer present at the interview. The interview is not recorded. Questions: What issues arise in relation to the right to a fair trial? Would it make any difference if the witness was not a convicted criminal? Do you think that, in the circumstances, the teenagers will still receive a fair trial?

9 HANDOUT 4: CARD B CARD B A student is arrested on suspicion of robbery. He is held on remand pending the hearing. He is from a small island, where his lawyer resides, but he has been imprisoned 200 miles away. Questions: What issues might arise in relation to the right to a fair trial? Would it make any difference if he could contact his lawyer whenever he wished by telephone? What if the lawyer lives 50 miles away but has no car? Hint: Look again at Articles 6(3)(b) and 6(3)(c).

10 HANDOUT 5: CLASS QUESTIONS Doorson v the Netherlands Facts: Mr Doorson was identified as a drug dealer by a number of witnesses who were known to be drug-users. He was placed on trial. Six of the witnesses remained anonymous as they feared a reprisal from Mr Doorson. The identities of a further two were disclosed. Mr Doorson s lawyer asked the court to summon these anonymous witnesses but was refused. Of the two identified witnesses, only one appeared at trial and that witness withdrew his statement. The evidence of the second identified but absent witness was therefore read out in court. The applicant was convicted on the basis of this evidence. Answer the following questions and then choose one student to report your findings back to the class: 1. Do you think Mr Doorson received a fair trial? 2. Do you think the court made the right decision? Give reasons. Discuss the outcome of the case with the class and see how many students agreed with the decision.

11 HANDOUT 6: DISCUSSION In cases relating to Article 6, and indeed other articles, it is often people who have been accused of crimes and convicted criminals that are seeking to enforce their rights. Do you agree with this? Should, for example, a paedophile have the same rights as everybody else? Should he retain some rights but not others? Discuss in groups and then as a class.