The purpose of this paper is to analyse the current significance of the right to examine, or have examined, incriminating witnesses within the jurisprudence of the European Court of Human Rights. In order to undertake this analysis, the paper will begin by recalling the traditional way through which Strasbourg has guaranteed the right to confrontation, namely through the “sole or decisive” rule which states that the rights of the defence are unacceptably undermined when a conviction is mainly based on evidence not subjected to confrontation. The discussion will subsequently focus on a recent and crucial judgement (Al-Khawaja and Tahery v. United Kingdom) that has inaugurated a new approach: the “overall examination”. Owing to this “overall examination” the use of untested evidence — even when decisive for convicting the accused — is “fair” in the presence of strong procedural safeguards, which permit a proper assessment of the reliability of unchallenged depositions.
Special attention will be paid to the effects of the overruling on the scope of the European right to confrontation and on its relationship with the increasingly wide notion of a “fair trial”. In the final section of the paper, the overruling will be examined in light of the European Court’s duty to develop common standards for the protection of human rights.
See S. Trechsel, Human Rights in Criminal Proceedings (Oxford: Oxford University Press, 2005) p. 294; I. Dennis, loc. cit., (2010) p. 255; J.R. Spencer, op. cit., p. 48, describes the right to confrontation as just one ingredient of a fair trial, “the absence of which can be made good by corroborating evidence”.
For criticisms see S.J. Summers, Fair trials. The european criminal procedural tradition and the European Court of Human Rights (Oxford: Hart Publishing, 2007) p. 140, who describes such doctrine as unsatisfactory: “there is only one approach for the Court which fully respects the guarantee (provided by Article 6 para. 3 (d)), and that is to ensure that the defence is able to challenge all witness evidence which is put before the court. By leading the evidence, the prosecution or investigating authorities have already made clear their belief in the importance of the evidence”.
See P. Ferrua, Il giusto processo (Bologna: Zanichelli, 2011) p. 211; R. Masterman, ‘Aspiration or fundation? The status of the Strasbourg jurisprudence and the “Convention rights” in domestic law’, in H. Fenwick, R. Masterman and G. Phillipson, eds, Judicial Reasoning under the UK Human Rights Act (Cambridge: Cambridge University Press, 2007) pp. 64–65.