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Stefano Maffei. The European Right to Confrontation in Criminal Proceedings. Absent, Anonymous and Vulnerable Witnesses. Groningen: Europa Law Publishing, 2006. Pp. 276. $112.00. ISBN: 9076871647.

 

Reviewed by Dr. Joanna Beata Banach-Gutierrez, Adjunct Professor at the University of Opole, Department of Comparative Criminal Law.

 

Today, we can observe a clear tendency towards the creation of a common European criminal procedural law. In light of the process of the Europeanisation of criminal substantive and procedural law, we should still aspire to increase the protection of the legal position of the individual in criminal proceedings. The principles governing domestic criminal proceedings should comply with the provisions of the European Convention on Human Rights (ECHR), 1950 and with the Charter of Fundamental Rights of the EU, 2000.

 

It is, thus, obvious that a European legal area in criminal matters should be created with respect for basic human rights. In addition, guaranteeing the protection of these rights should be left to the competence of national courts. One of these basic rights is the right to confrontation granted by international and European norms to each person being a subject in criminal proceedings. It is one of the main principles of the concept of “fair trial” under Article 6 of the ECHR.

 

The approach towards a concept of “fair trial” seems to be directed at achieving common minimum standards, and a balance between the safeguards of suspects/defendants and the crime victim’s rights. Therefore, Stefano Maffei’s book is a voice of significant importance in the European discourse on the right of any accused person to confront his accusers. The book, in seven chapters, has a very clear structure. The author gives a rather comprehensive and condensed overview of the Right to Confrontation based on both adversarial and inquisitorial models. His detailed analysis concerns specifically, English, French and Italian criminal law of evidence and procedure in relation to the status of three categories of witnesses, namely absent, anonymous and vulnerable witnesses.

 

Chapter 1 provides an explanatory introduction for the terminology used and the main theses, which are then developed in subsequent chapters. Maffei clarifies inter alia that for the purpose of this work on the Right to Confrontation the term human right may be replaced by “fundamental right” or “constitutional right” in the light of contemporary sources of law. Moreover, he is right in saying that the word “confrontation” may be confusing, as it may be employed with different meanings by national laws. Therefore, he states that in his work the term “confrontation” describes the procedure of an open examination of the witness in the courtroom, in line with the requirements of the “confrontational paradigm”. He mentions here six components : a) publicity; b) presence of the accused; c) presence of the fact-finder; d) obligation of sincerity; e) disclosure of personal identity; f ) adverse – questioning (pp.23-31).

 

In Chapters 2 and 3, he establishes three categories of problematic witnesses, common to the criminal law of both the adversarial and the inquisitorial legal traditions, namely the absent, anonymous and vulnerable witnesses. With respect to these three categories of witnesses Maffei analyses the requirements of the ECHR (art.6 sec.3 (d)) and compares the rules of procedure and evidence of the three chosen European legal systems (England, France, Italy) in Chapters 4 to 6. Chapter 7 includes the final conclusions and revisits some of the key issues raised in the book.

 

Maffei focuses on two central elements in his analysis: the method of confrontation and the evidence presented by a witness. I share his opinion that the three categories of witnesses mentioned above may potentially threat the Right to Confrontation, however, they are admissible in the national and international criminal proceedings. It is true that the accused should enjoy his fundamental right to be confronted with the accuser in the judicial proceedings. But, on the other hand a witness should also enjoy his/her fundamental right to protection under certain circumstances, especially when his/her health, life or freedom might be endangered. An important issue here may be “secondary victimization” by the direct testimony in the court room or standing face-to-face with the accused. Indirect evidence or testimony with the help of a video-conference might be highly recommended in exceptional cases. Maffei is absolutely right in saying that the need for ad hoc techniques of examination is engrained in considerations relating to the special needs of juveniles, the mentally impaired or the mentally distressed.

 

Accordingly, Maffei correctly comes to the conclusions that the indirect evidence of absent, anonymous and vulnerable witnesses may be admissible under contemporary criminal procedures of the European countries under review and international law. However, each examined country follows its own peculiar rules on the court examination of witnesses. And yet, criminal jurisdictions as Maffei is saying must ensure the priority of the Right to Confrontation, being a fundamental right, over arguments of procedural efficiency and public interests. One may also agree with his opinion that the Strasbourg case-law only provides for a minimum standard for the protection of the Right to Confrontation.

 

Maffei’s book represents a significant step forward in the comparative study of the rules of procedure and evidence. The analyses and theses covered in this book are important, largely convincing and deserve the attention of “European evidence scholars” (p.231). Therefore, this book can be strongly recommended to all lawyers working on criminal law and procedure, especially as there is a real need for well-educated European and international criminal lawyers.