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The Right to Challenge Witnesses – an Application of Strasbourg's Flexible ‘Sole and Decisive’ Rule to other Human Rights

Elmar Widder

Keywords: Fair trial; confrontation; right to have witnesses examined; counterbalance; corroboration of evidence

The ECtHR's Grand Chamber judgment in the case of Al-Khawaja and Tahery initiated a tremendous amount of literature appertaining to the question of the extent to which the accused's right to confrontation can be limited. A large number of scholars commented on the implications for the rights of the accused, including recommendations that the Court should focus more on the underlying principles for the restriction of this right. This article will leave the latter questions aside and concentrate on a more practical issue by comparing the doctrinal nuances of Strasbourg's Grand Chamber judgment—which are regarded as a convergence of common and civil law traditions—with cases in other regional human rights jurisdictions, i.e. the UN Human Rights Committee and the Inter-American Court of Human Rights. Is the right to confrontation restricted more, or perhaps less, in other jurisdictions and is there a clear line? This article provides the reader with the necessary background information on the new doctrinal elements on the restrictions of the right to confrontation, which have been established by Strasbourg's Grand Chamber. It then uses these elements such as ‘necessity’ and ‘counterbalance’ and scrutinises cases of other human rights jurisdictions under these lenses. The results will show whether or not other human rights bodies would have decided differently if they had used the ECtHR's yardstick for their decisions.

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