should have the same powers as the prosecution to cross examine
witnesses.699 This should include the ability to challenge a witness statement. 700
114.
Evidence produced in trial should have been in the presence of the
accused, although statements can have been made during the police
investigation, for example.701 All material relevant to the case should be
disclosed.702
115.
The right to call witnesses is subject to certain limitations:
a. It only applies to those witnesses relevant for the defence.
b. There is a proper opportunity to question witnesses.703
c. It is primarily within the discretion of the national legislature to determine
the rules for admissibility of evidence.704
116.
As regards anonymous witnesses, in theory this will violate the principle
of equality of arms unless, exceptionally, this is balanced against the interest of
the defence.705 There may be certain instances, for example involving children
as victims of sexual abuse, where additional protection will be required to
protect them from intimidation.706 Anonymous evidence from law enforcement
officers will have to be very strictly justified.707
117.
The right also includes the right to call expert witnesses, provided there
is an appearance of neutrality.708 This is not an absolute right and needs to be
considered in light of what is appropriate in the administration of justice and
within the discretion of the national court.709 Where expert witnesses are
admitted, the defence should be able to examine that witness. For example,
where the court refused an individual’s request for a doctor who could verify
injuries he claimed were the result of torture, this amounted to a violation of
Articles 14 of the ICCPR.710
M. Victim and witness protection
118.
Courts have an obligation to protect witnesses and those who participate
in the proceedings from any reprisals711 and the UN Convention Against Torture
699
Human Rights Committee, General Comment No.32, CCPR/C/GC/32 (2007), para 39.
European Court, Bricmont v Belgium, 7 July 1989.
701
European Court, Asch v Austria, 26 April 1991.
702
Human Rights Committee, Communications 464/1991 and 482/1991, Peart v Jamaica, 19 July
1995.
703
Human Rights Committee General Comment No.32, CCPR/C/GC/32 (2007), para 39.
704
General Comment No.32, CCPR/C/GC/32 (2007), para 39.
Human Rights Committee
Communications 1263/2004 and 1264/2004, Khuseynova and Butaeva v Tajikistan, , 20 October 2008.
705
Kostovski v the Netherlands [1989] ECHR 20; Doorson v Netherlands, [1996] ECHR 14.
706
See e.g. UN ECOSOC, Guidelines on Justice in Matters involving Child Victims and Witnesses of
Crime, UN Doc E/Res/2005/20 (2005).
707
Van Mechelen and others v Netherlands, 23 April 1997.
708
See e.g. before the European Court, Mirilashvili v Russia [2008] ECHR 1669, para 178
709
Ibid.
710
Communication 1117/2002, Khomidova v Tajikistan, 29 July 2004.
711
UN General Assembly Resolution, Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power, UN Doc GA Res 40/34 (1985).
700
120
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