The European right to confrontation in criminal proceedings - Absent, anonymous and vulnerable witnesses

Since criminal proceedings are the epitome of the power of the State, steps must be taken to contrast abuses of public authorities and to entrench safeguards against legal incursions into fundamental rights. Although the vision embedded in this rather simple statement may be said to be shared among all European Member States, the level of protection of the fundamental rights of an accused person varies significantly. This is because – across contemporary Europe – criminal policy still remains, with minor exceptions – a matter for the domestic realm. Criminal law, procedure and evidence do not fully participate of the movement towards a unified European legal area as Members States seem almost stubbornly attached to their own way of prosecuting, judging and punishing those who have allegedly committed a criminal offence. While each national order has its own set of constitutional rights and guarantees, it is inevitable that national variants emerge with regard to almost all phases and features of criminal proceedings. This also affects the attitude of lawyers and scientists engaged in the study and research of criminal matters. A Belgian criminal jurist probably knows very little of the landmark amendments to the English rule against hearsay of Criminal Justice Act 2003, while Swedish criminal lawyers probably ignore that an Italian defendant is allowed to negotiate a criminal sanction directly with the prosecutor. A few Italians are aware that Greece is about to overturn its codes of criminal code and criminal procedures, while few Polish know that in Ireland a Governmental Committee is currently engaged in the drafting of a codification for criminal justice. It is true that national systems communicate occasionally – as in the cases of transnational arrest warrants or rogatory letters – but it is also true that no comparative effort has yet broken national barriers and led to the establishment of a common European ‘vision’ on criminal justice. Yet, fundamental rights cannot tolerate national barriers and variants in an integrated area of peace, security and justice, as European authorities are proud to describe the old Continent. If the concept of a fundamental right is to have any meaning, it must surely sound in the protection which the law affords to it. With this principle in mind, this book shall attempt to establish a European discourse on the right of any accused person to confront his accusers. This will be based on principles of constitutional theory and natural justice, the parameters outlined by ECHR law and the rules of evidence of Italy, France and England and Wales. So far, comparative scholars have shown little, if any, interest in drawing a detailed map of the contours of the Right to Confrontation and still lack a precise sense of its far-reaching potential. The reason can be easily explained: while the Right to Confrontation is declared in almost identical terms in several national and international jurisdictions, its implementation depends upon the technicalities of their laws of criminal procedure and evidence. These subjects differ significantly across European countries and are often regarded as bastions of nationhood. It is true that a growing tendency towards ‘harmonisation’ may be found in Europe due to the meta-principles established by the Human Rights institutions and the independent commitment of certain legislators responsive to foreign legal solutions. Nevertheless, national laws of evidence are based upon independent concepts and conflicting legal traditions, which directly affect the rules of admissibility, collection and evaluation of the testimony of witnesses. Were the Right to Confrontation an absolute right, each and every prosecution witness would be challenged under oath, face-to-face with the defendant in accordance with the ultimate confrontational paradigm of a public cross-examination. History shows that no criminal justice system – neither adversarial nor inquisitorial – has ever agreed to strike out all other ‘testimonial’ evidence adverse to the defendant. Even in the United States of America, the birthplace of the constitutional Right to Confrontation, intrusions are tolerated in the form of exceptions to the rules against hearsay. This is because a number of values have been – and still are – commonly invoked to justify even the most penetrating intrusions into the Right to Confrontation. Some of these values can be effectively described as ‘public interest’ concerns: in essence, the claim is that protection of confrontation has an adverse effect on the ‘efficiency of the proceeding’ and the process of ‘accurate adjudication’. Other values include the protection of the fundamental rights of the intimidated or vulnerable accuser. This work argues that, once acknowledged by a national or international legal order, the Right to Confrontation must be taken seriously, and intrusions should be construed to minimise the impact against the defendant. Discussion is in six chapters. Chapter 1 establishes a theoretical concept of confrontation as a fundamental Human Right. It also discusses the history and developments of the Right to Confrontation in an international perspective, with some brief reference to the law of the U.S., where this right was announced for the first time in a constitutional text. Further, Chapter 1 defines the ‘confrontational paradigm’, the ‘testimonial’ statements to which it applies and a number of ‘departures’ from the confrontation paradigm and their correspondent counterbalances. In Chapter 2, three categories of problematic witnesses, common to criminal systems of both the adversarial and the inquisitorial traditions, are outlined: the absent, anonymous and vulnerable witnesses. Chapter 3 explores the ECHR version of the Right to Confrontation, stemming from the case law on Article 6(3)(d) of the European Convention. Although this case law sets certain minimum standards for the admissibility, collection and evaluation of unchallenged testimonial evidence, major inconsistencies may be found in the Strasbourg bodies’ approach to the subject. Chapter 4 serves as an introduction to the subsequent cross-national discussion of matters of confrontation. France, Italy and England and Wales are chosen as model European countries in light of their peculiar legal traditions (adversarial in England, inquisitorial in France, mixte in Italy, where an adversarial Code has been transplanted in 1988 into an inquisitorial legal culture). Something will have to be said about the sources of the law and the general principles of criminal procedure and evidence of the model Countries, in a comparative fashion. Chapter 5 investigates the ordinary course of testimony in the model countries and argues that a host of differences derive from the inquisitorial or adversarial inspiration of the respective proceedings. Chapter 6 finally explores the evidence of absent, anonymous and vulnerable witnesses in the model jurisdictions. Although none of them yet fully complies with the Confrontation Clause of the European Convention and the guarantees established by the European Court of Human Rights, certain domestic rules and practices may bring an additional meaningful contribution to a general European policy on the Right to Confrontation.