67 provisions for the protection of the identities of victims and witnesses. See, e.g., ICTY Statute (…) 234 Article 22 (…); ICTY, Rules of Procedure and Evidence (…) Rule 75(B)(III). 241. The European Court of Human Rights has adopted a number of decisions involving persons who were criminally convicted based on the statements of anonymous witnesses, or witnesses testifying against them but whom they have not been able to cross examine. The European Court has held that as a general rule the European Convention does not preclude such measures when the life or physical safety of the witnesses is at stake. However, the European Court held that (a) such witnesses must be counterbalanced by other measures in the proceedings, to be determined on a case by case basis, so as to compensate for the handicap under which the defense is laboring, and (b) the testimony 235 of anonymous witnesses cannot be the decisive factors in arriving at a decision to convict. 2.2 Analysis of the case 242. The Commission will now examine whether, in the present case, the use of anonymous witnesses was warranted based on the criteria described in the preceding paragraphs. The State has told the Commission that the use of anonymous witnesses was permitted because it is allowed under Chile’s Anti-Terrorism Act. A relevant point here is that under the principles of public international law, 234 IACHR, Report on Terrorism and Human Rights, OEA/SER.L/V/II.116, Doc. 5 rev. 1, corr., October 22, 2002, paragraph 251. 235 As happened, for example, in the case of Kostovski v. Netherlands [European Court of Human Rights; case of Kostovski v. Netherlands, decision of November 20, 1989. Series A No. 166, RUDH 1989, 191]. In this case, two Dutch courts had used as evidence statements made by two anonymous persons who did not appear in court. The European Court explained that in principle, “all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument. (…) This does not mean, however, that in order to be used as evidence statements of witnesses should always be made at a public hearing in court: to use as evidence such statements obtained at the pre-trial stage is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6 (art. 6-3-d, art. 6-1) [of the European Convention] provided the rights of the defence have been respected. As a rule, these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings.” For the European Court, keeping the identity of the witnesses secret was an obstacle for the right of defense: “If the defence is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable. Testimony or other declarations inculpating an accused may well be designedly untruthful or simply erroneous and the defence will scarcely be able to bring this to light if it lacks the information permitting it to test the author’s reliability or cast doubt on his credibility. The dangers inherent in such a situation are obvious.” Considering the circumstances of the case, the Court held that “in these circumstances it cannot be said that the handicaps under which the defence laboured were counterbalanced by the procedures followed by the judicial authorities.” Following this line of reasoning, the Court observed that the European Convention “does not preclude reliance, at the investigation stage of criminal proceedings, on sources such as anonymous informants. However, the subsequent use of anonymous statements as sufficient evidence to found a conviction, as in the present case, is a different matter. It involved limitations on the rights of the defence which were irreconcilable with the guarantees contained in Article 6 (art. 6).” In a similar ruling in the 1996 case of Doorson v. the Netherlands [European Court of Human Rights, case of Doorson v. the Netherlands. Judgment of March 26, 1996, ECHR Rep. 1996-II], the European Court reiterated its position on this matter. In this case, the Court (a) stated clearly that in those cases in which the life, liberty or security of persons who cooperate with the courts as witnesses may be at stake, the protection of their rights under the European Convention requires that States Parties organize their criminal proceedings in such a way that those interests are not unjustifiably imperiled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify; (b) reiterated that the Convention does not preclude reliance, at the investigation stage, on sources such as anonymous informants. The subsequent use of their statements by the trial court to found a conviction is, however, capable of raising issues under the Convention, although such use is not under all circumstances incompatible with due process; (c) explained that maintaining the anonymity of the witnesses at trial presents the defense with difficulties which criminal proceedings should not normally involve; nevertheless, those difficulties shall not be deemed a violation of the Convention if they are found to be sufficiently counterbalanced by the procedures followed by the judicial authorities at trial; (d) ruled in this specific case, the counterbalancing procedure followed by the judicial authorities in obtaining the evidence of the witnesses was sufficient to have enabled the defence to challenge the evidence of the anonymous witnesses and attempt to cast doubt on the reliability of their statements, since during the appeals phase, the witnesses were interrogated in the presence of the defence attorney and the examining judgment, which in the Court’s view struck the proper balance between the interests at stake; (e) even when “counterbalancing” procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements and that such statements must be treated with extreme care. The Court reiterated these rules in subsequent cases, among them Van Mechelen et al v. Netherlands, 1997 [European Court of Human Rights, case of Van Mechelen et al v. the Netherlands, Judgment of April 23, 1997, Rep. 1997-III, RUDH 1997, 209, paragraphs 49-55], Jasper v. United Kingdom[European Court of Human Rights, case of Jasper v. the United Kingdom, Judgment of February 16, 2000, Rep. 2000-II, paragraphs 51-53], and in cases for terrorist crimes, the case of A et al. v. United Kingdom [European Court of Human Rights, case of A and others v. the United Kingdom, Judgment of February 19, 2009, pararagraphs 202 et seq.].