In Act XIX of 1998, the legislator succeeded in creating a form of testimony which, while limiting the principle of immediacy, introduced the possibility of anonymous testimony, subject to the statutory conditions set out therein.3 This is a significant achievement, since in previous decades there were numerous cases in which the courts of second instance overturned first instance decisions based on such testimony on the grounds of procedural irregularities or unfoundedness, or on the grounds of violation of the principle of impartiality. But “can a judicial judgment be just which is not based solely on a debate between the prosecution and the defence who rely on the adversarial principle and the evidence they have produced and examined at trial, but merely on the acceptance or presumption of the truth of evidence by the acceptance of legal guarantees?”4 In sum, how far can the legislator go in the area of witness protection without prejudicing the procedural position of the accused or the defence?5 Even the Strasbourg judgments do not give a clear answer to this question. “In the absence of convincing legal options, we must therefore agree primarily with those who consider ‘partial anonymity’ to be a viable option.” 6

The use in court of the testimony of particularly protected witnesses is in conflict with the interests of the protection of the witness and the obligation of the courts to clarify the facts fully, on the one hand, and the interests of the “principle of equality of arms” and the right of defence, on the other. In my view, however, this is not irresolvable. While the right of defence is indeed one of the most important fundamental procedural rights, authorities have a legal obligation to protect all those procedural actors who, typically through their active conduct, contribute in some way to the success of the criminal proceedings.7 (Szabó’s view is that the legal framework for witness protection should be designed in such a way that it affects the right to a fair trial only to the minimum extent possible.)8

What if the prosecutor does not mention the testimony of such a witness as evidence in the indictment? Can its content be admissible as evidence in subsequent proceedings, despite the fact that only the transcript of the statement is read out in court? There is no obstacle to this possibility if the prosecutor attaches the transcript to the indictment and informs the accused and his defence counsel beforehand of the place and possible time of the inspection of the “anonymous testimony”. The limitations on direct questioning or commenting at the hearing should not, subject to these rules, prevent such statements from being considered as evidence. In addition, agreeing with Éva Nagy, “the legality of the prosecution is not affected by the fact that the prosecutor does not specifically mark the testimony of the particularly protected witness, since he may request its use at any time until the evidentiary procedure is declared complete.”9

Nor does the Court of Justice give any specific guidance as to when and to what extent the rights of the defence may be limited in the case of such evidence. The Strasbourg case law has thus essentially left it to the Member States to determine the regulatory rates, although there have of course been a number of case law decisions on the subject. For example: