ii. Evidentiary proceedings

Evidentiary proceedings, in principle, fall within the jurisdiction of the ordinary courts, which, as dominus litis, enjoy a wide margin of appreciation in relation to the issue of admissibility of evidence proposed and its respective assessment.¹³⁴⁹ Rejecting certain evidence shall violate Article 6, paragraph 1 of the ECHR if the appellant is able to prove that the rejected evidence is of crucial importance for the correct establishment of the facts of the case.¹³⁵⁰ For that matter, precisely in evidentiary proceedings the principle of “equality of arms” is of decisive relevance.¹³⁵¹ No party to the proceedings may be privileged.¹³⁵² Each party to the proceedings is authorised to face evidence being presented in the contradictory procedure,¹³⁵³ whereby the court is not obliged to allow for each and every piece of evidence to be presented.¹³⁵⁴ Taking into account the principle of directness in the evidentiary proceedings, the restriction of one’s right to face a piece of evidence presented during the contradictory procedure must be corroborated with an important and justified reason.¹³⁵⁵

Whether the principle of fair proceedings has been complied with must be observed from the standpoint of the proceedings as a whole, so that individual irregularities or issues of unlawfulness need not necessarily bring into question the entire evidentiary proceedings; as, the court decision can be based on other evidence as well, which the presentation has not been brought into question, or upon which omissions can be corrected at a later stage of the proceedings.¹³⁵⁶

In cases where the provided reasoning for a decision is based on indirect evidence or indications, they must “appear as a firm, closed circle allowing for just one conclusion in relation to the relevant fact, and, in objective terms, to completely rule out a possibility of a different conclusion in relation to the respective fact”.¹³⁵⁷ Hearing anonymous or protected witnesses is not, in principle, prohibited if the rights of the accused are sufficiently protected by any other way.¹³⁵⁸ However, a judgment must not be based exclusively on the statement of an anonymous or protected witness; in such cases it is necessary to provide reasoning based on additional evidence, which will apply in particular if the presentation of certain evidence by the defence has not been permitted.¹³⁵⁹ The same shall apply to witnesses to whom the Office of the Prosecutor guarantees immunity in relation to certain criminal acts that the accused has been charged with.¹³⁶⁰