欧洲人权法院视野中的证人不出庭问题及其启示 - 以“艾尔·卡瓦贾和泰合瑞诉英国案”为例 -

Abstract

“Al-Khawaja and Tahery v. the United Kingdom” exhibits the complete viewpoints of European Court of Human Rights on the issues of the non-attendance of a witness and his statement. The Court explains two requirements of the right of confrontation, a good reason for the non-attendance of a witness and the sole or decisive rule. The Court also expounds the connotation and two reasons of the sole or decisive rule.  The Court is of the view that the sole or decisive rule should be applied in a flexible manner. On this basis, the Court addresses the three steps test to assess whether the violation of the right of confrontation leads to the violation of the right of fair hearing. This judgment draw some lessons to China. The intimidation to witness should be a good reason for the non-attendance of a witness. The statement of key witness should be admitted rigidly. The three steps test should be considered in deliberation.