Information Note on the Court’s case-law No. 128

March 2010

Al-Khawaja and Tahery v. the United Kingdom (referral) - 26766/05 and 22228/06

Judgment 20.1.2009 [Section IV]

Article 6

Article 6-3-d

Examination of witnesses

Convictions based on statements by absent witnesses: case referred to the Grand Chamber

In wholly unrelated cases, the applicants were convicted of criminal offences for which they received custodial sentences. In their applications to the European Court, they complained that they had been denied a fair trial as their convictions had been based to a decisive degree on statements by witnesses who were not available for cross-examination by the defence. In the first applicant’s case, the witness in question h ad died before the trial. In the second applicant’s case, the witness was found by the trial court to have been genuinely prevented by fear from giving evidence before the jury. In both cases, the jury was warned about the dangers of relying on written sta tements without having had the opportunity to see the witness or to hear cross-examination. The applicants’ convictions were upheld on appeal.

In a judgment of 20 January 2009, a Chamber of the Court held unanimously in both cases that there had been a vio lation of Article 6 § 1 in conjunction with Article 6 § 3 (d) of the Convention concerning the decisions to allow statements from absent witnesses to be read at the applicants’ trials. It found that the loss of the opportunity to cross-examine the witnesse s concerned had not been effectively counterbalanced in the proceedings.

On 1 March 2010 the case was referred to the Grand Chamber at the request of the Government.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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