A Fundamental Review of the CHR Right to Examine Witnesses in Criminal Cases
| Author | Bas de Wilde |
| Published date | 01 January 2013 |
| Date | 01 January 2013 |
| DOI | 10.1350/ijep.2013.17.2.424 |
| Subject Matter | Article |
THE ECHR RIGHT TO EXAMINE WITNESSES IN CRIMINAL CASES A fundamental review of
the ECHR right to
examine witnesses in
criminal cases
By Bas de Wilde*
VU University Amsterdam
Abstract The European Court of Human Rights recently changed its position on
the right to examine witnesses. This right was diminished in two ways. First, in
the Al-Khawaja and Tahery judgment, the court abandoned the rule that it must
be possible at all times to question a decisive witness and so created the
possibility to test the reliability of a decisive witness statement in other ways.
Secondly, the European Court of Human Rights’ decision in Ellis, Simms and
Martin opened the possibility to base a conviction solely, or to a decisive extent,
on anonymous witness statements, which was previously not allowed. As a
result, anonymous witness statements can now play a far larger part in the
ruling on the evidence than previously possible.
Keywords Fair trial Right to examine witnesses Sole or decisive rule Counter-
balancing factors Anonymous witnesses
he right to a fair trial, guaranteed in Article 6 of the European
Convention on Human Rights (ECHR), includes the right to examine
prosecution witnesses either by the defendant or a legal representative
(Article 6(3)(d)).1The central aim of this right is to enable the defendant in a
criminal case to test the reliability of the witness or cast doubt upon credibility.2
However, the ECHR does not give the accused an unlimited right to have witnesses
doi:10.1350/ijep.2013.17.2.424
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2013) 17 E&P 157–182 157
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1 It also includes the right to examine witnesses for the defence, which will not be discussed in this
article.
2Windisch vAustria, Application No. 12489/86, judgment of 27 September 1990 at para. 28. Unless
indicated otherwise, all judgments and decisions mentioned are ECtHR judgments and
decisions.
* Email: b.de.wilde@vu.nl.
called and examined.3Only in exceptional cases will the court consider this right
to be violated if a witness statement was used in evidence without the defendant
having had the opportunity of examination.4The applicable principles can be
found in the case law of the European Court of Human Rights (ECtHR).
Since the 1986 Unterpertinger judgment, the development of the right to examine
witnesses has been evolutive in nature.5New cases were reviewed on the basis of
previous case law criteria and principles.6An important rule was the ‘sole or
decisive rule’: if the defence could not examine a witness whose statement was the
sole or decisive evidence of the charges, the ECtHR consistently found there to
have been a breach of the right to examine witnesses. In the Grand Chamber’s
judgment in Al-Khawaja and Tahery, however, the ECtHR—for the first time in the
history of its case law—fundamentally changed its course on the right to examine
witnesses.7The sole or decisive rule is now no longer strictly applied. The ECtHR
qualifies this rule to mean that although a breach will in many cases continue to
be established if the defence has been unable to examine a decisive witness,
counterbalancing factors may serve to prevent a breach. In Ellis, Simms and Martin,
the ECtHR extended the approach established in Al-Khawaja and Tahery to
anonymous witnesses.8This article examines the most important changes
brought about by recent case law, how they relate to previous case law, and the
impact of this new case law.
1. Cases of Al-Khawaja and Tahery
(a) Facts
The complaints of Al-Khawaja and Tahery were filed separately. Since both cases
dealt with the question whether the right to examine witnesses was sufficiently
158 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
THE ECHR RIGHT TO EXAMINE WITNESSES IN CRIMINAL CASES
3Laukkanen and Manninen vFinland, Application No. 50230/99, judgment of 3 February 2004 at para.
35.
4Salmon Meneses vItaly, Application No. 18666/91, EComHR, decision of 30 November 1994.
5Unterpertinger vAustria, Application No. 9120/80, judgment of 24 April 1986.
6Goodwin vUnited Kingdom, Application No. 28957/95, judgment of 11 July 2002 at para. 74: ‘While
the Court is not formally bound to follow its previous judgments, it is in the interests of legal
certainty, foreseeability and equality before the law that it should not depart, without good
reason, from precedents laid down in previous cases’.
7Al-Khawaja and Tahery vUnited Kingdom, Application Nos. 26766/05 and 22228/06, judgment of 15
December 2011. This is the first Grand Chamber judgment containing substantive considerations
about the right to examine witnesses. The Grand Chamber previously commented on the right to
examine defence witnesses (Perna vItaly, Application No. 48898/99, judgment of 6 May 2003), but
this case was not examined on its merits as the request to hear witnesses was insufficiently
substantiated.
8Ellis, Simms and Martin vUnited Kingdom, Application Nos. 46099/06 and 46699/06, decision of 10
April 2012.
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