The right to examine or have examined witnesses as a minimum right for a fair trial. Pitfalls and trends.

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.