In certain criminal cases, it is possible for witnesses to remain anonymous to protect them against possible retaliatory actions. However, this can limit the defendant's rights to defend themselves.
When is anonymity permitted?
A witness may remain anonymous under the following circumstances:
- There is a real threat to the safety of the witness.
- The witness does not feel free to testify without anonymity.
- It concerns serious criminal offences.
Types of anonymity
Partially anonymous witness
The identity of the witness is unknown to the defendant, but known to the judge. The defence has the opportunity to submit written questions.
Fully anonymous witness (article 226a CCP)
The witness is examined by the examining judge, with voice and appearance possibly distorted. The defendant only hears the content of the statement, without knowing who the witness is.
Extra protected witness
In cases related to terrorism or organised crime, special protective measures may apply, for example for sources of the AIVD.
Evidential value
A conviction may not be based entirely or primarily on statements from anonymous witnesses. There must always be additional evidence present.
Compensatory measures for the defence
Because the defendant cannot directly confront the witness, the following compensations are provided:
- The defence may submit written questions.
- The examining judge assesses the reliability of the witness.
- The judicial reasoning must be particularly thorough.
Frequently asked questions about anonymous witnesses
When can a witness remain anonymous?
A witness can remain anonymous if their safety is at risk, if the witness otherwise does not feel free to testify, or in cases of serious crimes. The judge determines whether anonymity is necessary.
What distinguishes a partially anonymous witness from a fully anonymous witness?
With a partially anonymous witness, the judge knows the identity, but the defendant does not, and the defence can pose written questions. With a fully anonymous witness (article 226a CCP), the witness is examined in shielded manner by the examining judge, with distorted voice or face, and no one except the examining judge knows the identity.
Can a conviction be based solely on an anonymous statement?
No, a conviction may not rely solely or primarily on anonymous statements. There must be supporting evidence, such as other evidence or statements.
How can the defence question an anonymous witness?
The defence can pose written questions, which are put forward by the examining judge. The judge also safeguards the reliability of the statement.
What does an extra protected witness entail?
An extra protected witness, often in cases of terrorism or serious crime, enjoys maximum shielding. This applies, for example, to AIVD sources, where the identity may even be concealed from the judge.