A Fundamental Review of the CHR Right to Examine Witnesses in Criminal Cases

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.