THE RIGHT TO EXAMINE WITNESSES UNDER ARTICLE 6 §§ 1 AND 3 (D) OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Abstract

The article is devoted to the current case-law of the European Court of Human Rights regarding the right to examine a witness as a guarantee of the right to a fair trial under Article 6 of the European Convention of Human Rights. In this regard, the principles developed by the European Court of Human Rights on the right to call witnesses for the defence, the right to examine (or have examined) the prosecution witnesses are clarified. The article further deals with the issue of, reasonable efforts that should be taken by the domestic authorities in securing attendance of a witness, including the anonymous witnesses and witnesses in sexual abuse cases. It is postulated that the use as evidence of statements obtained at the stage of a police inquiry and investigation is not in itself inconsistent with Article 6, provided that the rights of the defence have been respected. As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him – either when that witness is making his statements or at a later stage of the proceedings. The article further deals with the three-step compliance test under Article 6 of the Convention as regards the witnessesavailable at the pre-trial stage but absent from the subsequent stages of the criminal proceedings. It is emphasised that in cases involving anonymous witnesses, it is important to balance between fair trial in the interests of the defence and the interests of anonymous witnesses regarding their life, liberty, security or personal situation. In sexual abuse cases, attention has been drawn to the need of taking into account, on the one hand, the right of a minor victim for privacy, and on the other – an adequate and effective exercise of the rights of the defence.