Absent witness evidence and a fair criminal trial: the ECHR legal positions

The right of the accused under Subsection D Part 3 Article 6 of the European Convention - to question witnesses against him, or to have the right to have the witnesses questioned, and to have the right to the attendance and examination of witnesses for the defense under the same conditions as witnesses against him - is an integral part of the right to a fair trial, and its violation may result in the recognition of the trial unfair. Resolving the issue of potential violations in this area, the ECHR bases on the fact that issues related to the absence of witnesses at the hearing cannot be resolved in the same way in different criminal cases, because each case is unique, and the court must evaluate the overall fairness of the whole process. To determine whether the absent witness evidence in court violates the defendant's right to a fair trial, the ECHR applies a conventional three-step test approved in Al-Khawaja and Tahery v. the United Kingdom (2011) and also used in several other cases: 1. Have there been adequate reasons for the absence of the witness at the hearing, and have the authorities taken reasonable steps to ensure the attendance of the witness in court? 2. Is the witness evidence exceptional or critical? 3. Have there been sufficient balancing factors, including strong procedural guarantees, for the trial as a whole to be considered fair, what measures has the court taken for this? These questions do not have a hierarchy, the court assesses the fairness of the trial as a whole, on the basis of the balance of interests of the parties and the public interest in the effective administration of justice. If an "anonymous witness" is interrogated in the case, the court must determine whether s/he is reasonably classified. If the witness is not questioned in court, the ECHR recommends to study the interrogation video made in pre-trial proceedings during the court session. In any case, when presenting the absent witness evidence, the court must specify the reasons for it and explain to the participants of the trial that the fairness of the trial will not suffer if the witness is not questioned.

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