ECtHR, judgment of 10 february 2022, Al Alo v. Slovakia, App. no. 32084/19


‘Acts have their being in the witness’: upholding the right to a fair trial in the context of migrant smuggling.

Keywords – Right to a fair trial – Defence rights - Legal representation – Examination of evidence – Witness statement – Pre-trial questioning – Migrant smuggling

An application against Slovakia was lodged by a Syrian national charged and convicted on the criminal offence of migrant smuggling. Before the European Court of Human Rights, he claimed that his trial was unfair since his conviction was the result of examination of evidence at the pre-trial stage which occurred in his absence. The evidence in question was constituted by two witnesses’ statements that were not heard during the trial proceedings since, in the meantime, they had been expelled from Slovakia. However, the migrants’ statements constituted an important piece of evidence at trial. Further, the applicant claimed that he did not benefit from legal representation at the pre-trial stage. The Court unanimously concluded to a violation of Article 6 §§ 1 and 3 (c) and (d).

Matilde Rocca


A. Facts, Legal Complaints and Ruling

1. Facts

- Initial procedural actions

Mr. Al Alo (henceforth, ‘the applicant’) is a Syrian national. On 26 January 2017, he was surveilled by two police officers in Bratislava (Slovakia) as they believed he was involved in a migrant smuggling operation. The police officers spotted Mr. Al Alo and two individuals entering a taxi and driving towards the Austrian border. Hence, they intercepted the car and detained the two migrants along with the applicant.

Two days after the interception, the applicant faced charges of migrant smuggling. Later, he was questioned by the police as a person charged with a criminal offence under domestic law. In particular, the interview record mentions Article 213 of the Slovak Code of Criminal Procedure (Law no. 301/2005 – ‘the CCP’). According to paragraph 1 of this provision a charged person may be permitted to attend witness interviews and to question the witnesses himself. The record of the interview also reports that the applicant decided not to be represented by a lawyer and not to attend the witness interviews. Concerning the language in which the interview would be conducted, the applicant maintained that he did not understand legal matters, that he had not completed secondary education and that his reading and writing abilities were not very solid. Accordingly, he asked to be assisted by an interpreter. With regard to the migrant smuggling charges, Mr. Al Alo submitted that he believed the two other individuals, C. and D., to be family friends, and claimed that he only helped them with accommodation and transport.

On 28 January 2017, the applicant was informed that C. and D. were going to be interviewed as witnesses later that day. During the pre-trial interview, they submitted they were migrants, illegally present in Slovakia and heading towards Western Europe, and alleging that the applicant played a role in facilitating their journey. Mr. Al Alo did not attend these interviews. The following day, he was placed in pre-trial detention and was assigned a lawyer appointed by the court in accordance with Article 37 § 1 (a) (CCP).

On 27 February 2017, the applicant was interviewed in the presence of a lawyer. The record of the pre-trial interview reported that he did not wish to exercise his right to be present during the witness interviews. Instead, he asked for invitations to attend these investigative measures to be addressed to his lawyer.

- Trial, appeals and final domestic decision

In a judgment of May 2017, the District Court found the applicant guilty and sentenced him to five years imprisonment. Consequently, the applicant appealed to the Regional Court, advancing numerous arguments including the fact that the two witnesses had not been heard in court. He further emphasized that he had declared from the beginning that his education was poor and that he had difficulties with reading and writing. Moreover, being a Syrian national, his understanding of legal proceedings in Slovakia was not robust. It was also reported that he was provided with the help of an interpreter.

In July 2017, the applicant modified his appeal to the Regional Court by providing the home addresses of both witnesses: one was based in Romania and the other in Denmark. However, the Regional Court dismissed the applicant’s appeal on the basis that both witnesses had been expelled from Slovakia and were therefore considered ‘unreachable’. Moreover, the Court affirmed that the applicant freely chose not to avail himself of his right to examine the witnesses. Regarding legal representation, the Court found that there was no reason to believe the applicant could not defend himself since he had an interpreter helping him, he had lived in Slovakia for many years, and he could communicate in many languages.

The applicant subsequently filed an appeal to the Supreme Court, which in its turn rejected the appeal, finding no violation of the applicant’s rights. Lastly, Mr. Al Alo appealed to the Constitutional Court under Article 127 of the Slovak Constitution – which allows to file complaints objecting to violation of his basic rights and freedoms. He also alleged a violation of Article 6, §§ 1 and 3 (c) and (d) of the European Convention on Human Rights (‘the Convention’ or ‘ECHR’). In 2019, the Constitutional Court declared the complaint ill-founded and, thus, inadmissible. At the time of presenting his application before the European Court of Human Rights (‘ECtHR’) he was serving a term of imprisonment in Slovakia.

- Relevant legal frameworks

Concerning domestic legislation, Article 37 of the CCP states that there are certain cases where legal representation is mandatory, for instance when a person charged with an offence is imprisoned. Furthermore, under Article 263 of the CCP, pre-trial witness statements may be admitted as evidence in trial if taken in conformity with the applicable procedural requirements and if the witness has become unreachable due to a long-term stay abroad. Another important legal framework in this context is the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union[1] (‘the Convention on Mutual Assistance’), which was incorporated in domestic legislation by Slovakia, Denmark, and Romania. According to article 10 of this Convention, witness hearings can be conducted via video conference at the trial stage.

2. Legal complaints and Strasbourg judgement

Before the ECtHR, the applicant complained that his criminal trial was not conducted in compliance with Article 6, §§ 1 and 3 (c) and (d) of the Convention. The relevant paragraphs state as follows:

1. In the determination of [...] any criminal charge against him, everyone is entitled to a fair [...] hearing [...] by [a] [...] tribunal.

3. Everyone charged with a criminal offence has the following minimum rights: […]

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; […]

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

Concerning the merits, the applicant complained that he had not been provided with sufficient legal assistance. He further claimed that his criminal conviction had been based on the pre-trial statements of the witnesses while he was not given the chance to examine them at trial. In this regard, he contended that during the proceedings, he actively sought an opportunity to examine the witnesses. However, the trial court ignored his efforts even though the applicant had provided both witnesses’ house addresses (in Romania and Denmark respectively) and copies of their identification documents. Moreover, the lack of witness examination at trial was not compensated for by any measures aimed at safeguarding the applicant’s procedural rights. The applicant also argued against the domestic courts’ statements on his ability to defend himself. Although he admitted that he was informed of his right to be represented by a lawyer, he was unaware of the gravity of the criminal charge and its implications.

The responding Slovak Government argued that there were no doubts regarding the applicant’s ability to defend himself nor about his intellectual skills. Regarding the admission of the witnesses’ pre-trial statements as evidence during trial, the Government contended that it was not the Court’s task to investigate their admissibility. Moreover, though the applicant had provided the addresses of the two witnesses, these were only “administrative (fictitious) addresses” (pt. 39).

In its assessment in the present case, the Court firstly reiterated that the guarantees provided by Article 6 § 1 and § 3 (d) ECHR ought to be considered as intertwined with any assessment of fairness of trials, as established in Schatschaschwili v. Germany and Taxquet v. Belgium (pts. 41-42). Furthermore, the Court affirmed that its primary concern under Article 6 § 1 ECHR “is to evaluate the overall fairness of the criminal proceedings” (see Schatschaschwili, § 101, and Taxquet v. Belgium § 84) (pt. 42). Therefore, in making this assessment, the ECtHR carried out a review of the proceedings as a whole, having regard to both the rights of defence and the interests of the public and the victim or victims (see in this regard Schatschaschwili, § 101, and Gäfgen v. Germany) and where necessary to the rights of witnesses (see Al-Khawaja and Tahery v. the United Kingdom) (pt. 42). The ECtHR noted that the applicant’s complaints under Article 6 §§ 1 and 3 (c) and (d) were interlinked and it found a violation of both paragraphs of Article 6, ruling in favour of the applicant.

B. Discussion

Al Alo v. Slovakia represents an important decision, adding up to the ECtHR’s jurisprudence on the right to a fair trial and procedural rights. Firstly, the unanimous judgement reiterates the relevance of fairness in criminal proceedings in accordance with Article 6 of the Convention and it upholds defence rights. Secondly, this case also clarifies the applicability and scope of right waivers for defendants during criminal proceedings. We will now turn to an exploration of both these aspects, following the reasoning of the Court and aiming at locating the case of Al Alo in the broader jurisprudence of the ECtHR.

1. Enforcing defence rights and standards of evidence examination

Regarding the upholding of procedural rights and witnesses’ examination procedures, in its caselaw, the ECtHR has developed a set of principles to be applied when a witness does not attend a public trial (Al-Khawaja and Tahery v. the UK, §§ 119-147 and Seton v. the UK, § 58). In the present case, the Court reiterated these principles (pt. 43), which can be summarized as follows:

  • The Court should first examine whether there was a good reason for admitting the evidence of an absent witness (for instance, the death of a witness or fear of retaliation);
  •  If a witness has not been examined pretrial, “the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort” (pt. 43);
  • Admitting evidence constituted by statements of absent witnesses “may result in a potential disadvantage for the defendant, who, in principle, in a criminal trial should have an effective opportunity to challenge the evidence against him […] by having them orally examined in his presence, either at the time the witness was making the statement or at some later stage of the proceedings” (pt. 43);
  • In line with the ‘sole or decisive rule’[2], “if the conviction of the defendant is solely or mainly based on evidence provided by witnesses whom the accused is unable to question at any stage of the proceedings, his defence rights are unduly restricted” (pt. 43);
  • The word “decisive” should be “narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case” (pt. 43);
  • As for this ‘sole or decisive’ rule, Article 6 § 3 should be interpreted in the context of overall examination of the fairness of the proceedings;
  • Therefore, the admission of evidence of an absent witness does not automatically result in unfairness of criminal proceedings provided that sufficient ‘counterbalancing factors’ have been put in place.

With regard to this last point, the case of Al-Khawaja remains important although it left a few questions unanswered especially in relation to the juxtaposition between criminal procedures and human rights. As C. Gearty has pointed out in relation to the Al-Khawaja judgement: “[t]he wider importance of the ruling is […] obvious to those whose interests lie more in human rights law rather than in criminal procedure.” Indeed, in this case the right to a fair trial was ultimately upheld. Yet, what remained unclear in Al-Khawaja was the nature and scope of these counterbalancing factors and the way in which they have an impact on defence rights in the context of criminal proceedings.

These principles have been further clarified in the case of Schatschaschwili (§§ 125-131). More specifically, in the Grand Chamber’s account, counterbalancing factors must permit a fair assessment of the evidence. Further, the counterbalancing factors were identified by the Court as the following (pts. 44-45):

  • The domestic courts should cautiously approach the untested evidence of an absent witness and they should prove reliability of such evidence;

- A video of the absent witness’ statement should be reproduced at trial;

- Corroborative evidence should be available at trial;

- There should be a possibility for the applicant or defence counsel to question the witness during the investigation;

  • The defendant should be given the opportunity to give his/her own account of the events.

The ECtHR’s nuanced approach in Schatschaschwili constituted a positive development as it expanded on the issues approached initially in Al-Khawaja. As reported by the Court in the present Al Alo case, “[t]he extent of the counterbalancing factors necessary in order for a trial to be considered fair would depend on the weight of the evidence of the absent witness” (pt. 44). This is an important point developed by the ECtHR since it stresses the importance of evidence in the wider context of the proceedings and, further, in relation to the final judgement. Thus, the fairness of trial and the enforcement of procedural rights may depend on the relevance and weight of the absent witness’ statement.

The principles established in Seton, Al-Khawaja, and Schatschaschwili constitute important elaborations in the ECtHR’s jurisprudence, reinstating the importance of Article 6 ECHR and confirming the significance of the right to a fair trial and procedural rights at large. Based on the precedents just mentioned, the Court adopted a three-tier test (see Schatschaschwili, § 107) to be applied to the facts of the present case:

  1. Was there a good reason for the non-attendance of the witnesses at trial? Moreover, was there a good reason for admitting pre-trial evidence from the witnesses?
  2. Was the evidence of the absent witnesses ‘sole or decisive’?
  3. Were there sufficient counterbalancing factors permitting a fair and proper assessment of the reliability of the evidence in question?

Regarding point (i), in the case of Al Alo, the witnesses only appeared at pre-trial stage. Firstly, the Court observed that there were no elements suggesting that the applicant expressly waived his right to examine the witnesses’ statements. Moreover, the ECtHR stated that the Slovak authorities did not actively ensure that the applicant was aware of the consequences of not attending the pre-trial examination of the witnesses. Further, the Court found that it was foreseeable for the domestic authorities to believe that the witnesses would leave Slovakia and head for Western Europe, since they were found at the border in the first place. This was also the reason why the Government decided to question the witnesses at the pre-trial stage of the proceedings, having due regard to the principle of adversarial proceedings (pt. 39).

The Court further argued that under the European Convention on Mutual Assistance, the Government had the possibility to secure the appearance of witnesses via video and other remote means (pt. 51). In this sense, according to the Court, the present case evoked similarities with the one of Vronchenko v. Estonia, rather than distinguishing it from this latter case as argued by the Slovak Government (pt. 54). As pointed out by Clooney and Webb, “[d]omestic courts have wide-ranging powers to secure the attendance of witnesses by issuing orders, summonses, subpoenas, warrants, and transfer orders” (p. 535). Indeed, a good reason for non-attendance of witnesses at trial can be afforded provided that the court has “made all reasonable efforts within the existing legal framework to secure the attendance of a witness, particularly where the witness is in another country and bilateral negotiations with that country were unlikely to lead to a hearing of the witness within a reasonable time” (McBride, § 71; see also Schatschaschwili, §§ 132-140).

Therefore, the Court found that domestic legal mechanisms did not take enough positive steps to secure witnesses’ statements at trial, nor to enforce defence procedural rights, even though the witnesses were in a different country. Indeed, as the Court previously established in Gabrielyan v. Armenia, “the fact that a witness is absent from the country where the proceedings are conducted is in itself not sufficient to satisfy the requirements of Article 6 § 3 (d) ECHR, which requires the Contracting States to take positive steps to enable the accused to examine or have examined witnesses against him ” (§ 81). Positive steps were not taken on behalf of domestic courts in the case of Al Alo, so the reasoning of the ECtHR in relation to this point is sound.

Concerning the second issue (ii) – raising the question of whether the applicant’s conviction was based solely or mainly on evidence from the witnesses - the ECtHR straightforwardly observed that the Regional Court found that evidence given by both witnesses had been “pivotal” for the applicant’s conviction. Thus, their statements could be considered as decisive in this case (pt. 55). Again, the ratio juris in this instance is in line with the principles established in Al-Khawaja and Tahery (§§ 126-147) and Schatschaschwili (§§ 125-131).

Lastly, in relation to point (iii) on counterbalancing factors, the Court established that the domestic courts did not engage in sufficient balancing efforts vis à vis lack of witnesses’ examination at trial. Therefore, the Court concluded to a violation of the right to a fair hearing (on counterbalancing factors for inability to locate a witness see also Lučić v. Croatia, §§ 79-80). Following the principles clarified in Schatschaschwili, the ECtHR also found that the domestic courts did not prove the reliability of the evidence provided. In the words of McBride: “counterbalancing factors required by the European Court are ones that will permit a fair and proper assessment of the reliability of that evidence” (§ 77). This means that, at a minimum, a domestic court must not only show awareness of the fact that the counterbalancing evidence will carry less weight, but also give a thorough explanation of the reason why it can be considered reliable in the first place. In this regard, it must be noted that no video of the absent witness’ statement was reproduced at trial, nor was there any additional corroborative evidence provided, nor did the defendant have the opportunity to question the witness at the investigation stage. Indeed, the Court held that “the ability to confront a witness for the prosecution at the investigation stage is an important procedural safeguard which can compensate for the handicaps faced by the defence on account of absence of such a witness from the trial” (pt. 56, see also Palchik v. Ukraine, § 50).

Furthermore, the ECtHR pointed out that the domestic appellate court identified several flaws in the pre-trial procedure and in the judgement of the District Court. Concerning these procedural shortcomings, the ECtHR highlighted  that in this case the counterbalancing factors were insufficient to compensate for the absence of witnesses’ statements at trial. Rather, the domestic courts followed a “pattern of seeking to validate a flawed procedure” (pt. 65, see also Schatschaschwili, §§ 125-131, and Breukhoven v. the Czech Republic, § 56). Thus, the ECtHR’s analysis in relation to the third part of the test is also in line with the Court’s caselaw, as it upholds the ratio juris of the precedents.

2. Problematising the trial waiver system

One aspect of the ECtHR’s reasoning worth mentioning is the Court’s development of the discussion on waiving the right to a fair trial. As succinctly reported by the NGO Fair Trials, “[t]rial waivers take place when someone who is suspected of a crime gives up their right to a trial. It means they give up their right to provide and challenge evidence, and to be presumed innocent.” Though the use of right waivers has been increasingly implemented by several countries in Europe in order to speed up criminal proceedings and enhance efficiency, Fair Trials has rightly claimed that the use of this judicial practice is negatively impacting the integrity of the justice system as a whole.

In the present case, in relation to the question on counterbalancing factors (iii), the ECtHR considered whether a waiver could constitute a balancing factor. Importantly the Court stressed that “neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving – of his or her own free will, either expressly or tacitly – his or her entitlement to the guarantees of a fair trial” (pt. 59). Yet, the ECtHR also contended that if the right to a fair trial is waived, there should be compatibility with the requirements of the ECHR. More specifically, a waiver must be “attended by minimum safeguards commensurate with the waiver’s importance” (pt. 59). This means first and foremost that a waiver of the defendant’s right must be unequivocal, voluntary, informed and preferably expressed in writing (see Clooney and Webb, p 546, and Pfeifer v. Austria, § 37). Further, if the waiver of the right to a fair trial is implicit, the ECtHR held that “it must be shown that the applicant could reasonably have foreseen the consequences of his or her conduct” (§ 59, see also Zachar and Čierny v. Slovakia, §§ 60 and 68). In sum, the requirements for a waiver of the right to a fair trial to be implemented are very specific and should be treated with the utmost care in criminal proceedings.

However, in the present case of Al Alo, these requirements were not met according to the Court. Indeed, the applicant never expressly nor unequivocally mentioned his willingness to waive his right to examine the witnesses at trial since his decision in that sense was limited to pre-trial questioning (pt. 60). Besides, according to the ECtHR, at the pre-trial stage the applicant was provided with minimal instructions on how to attend the questioning of the witnesses. He was not comprehensively advised “about the consequences of not exercising this right […] in particular as regards the possibility for any pre-trial statements to be used in evidence at trial if the witness became “unreachable”, as defined under national law” (pt. 60, see also Zachar and Čierny, § 70).

Notably, the applicant mentioned on several occasions that his linguistic skills and, thus, his ability to understand legal proceedings were not strong enough to have foreseen the gravity of the conviction (see for instance pts. 6 and 14 of the judgement). Indeed, the ECtHR considered that the authorities were very early on informed by the applicant about his struggles to understand legal proceedings. However, despite expressing his difficulties, the applicant did not receive any legal assistance to grasp the consequences of him not examining the witnesses’ statements at the pre-trial stage. The reasoning of the Court, in this sense, seems to be in line with the general understanding that a waiver of the defendant’s right must be unequivocal, voluntary, informed and preferably expressed in writing (see Clooney and Webb, p 546, and Pfeifer v. Austria, § 37).

The discussion of the Court in relation to right waivers constitutes an important development. This case clarifies the limits of the applicability of the waiver of the right to examine witnesses by upholding the applicant’s procedural rights. As observed by Clooney and Webb, the ECtHR has increasingly considered the right to confront and examine witnesses as “a fundamental right among those which constitute the notion of fair trial, [and] an example of the rights which require the special protection of the knowing and intelligent waiver standard” (p. 547). The Court has applied the necessary safeguards in determining the fair use of the waiver system.

The trial waiver system is complex and presents several risks both from a human rights perspective as well as from a criminal justice one. As highlighted by Fair Trials in a recent report, some of these risks include: the lack of real consent on behalf of the defendant to waive his rights, the often insufficient procedural safeguards leading to uninformed consent, the lack of judicial oversight and accountability mechanisms, and the element of discrimination. This last element is remarkable since in the present case, the applicant is not a Slovak nor a European but a Syrian national. As recounted in the same report, migrants usually have high chances of pre or post trial detention, they have difficulties to understand their rights as well as the consequences of waiving them, and the criminal conviction puts them at a disadvantage since their immigration status may be hindered. Indeed, in this case the applicant did not give his unequivocal waiver of rights and could not have reasonably foreseen the consequences of his decision not to enforce his defence rights. Accordingly, the ECtHR’s conclusions establish a positive precedent in this sense.

C. Concluding remarks

As we have seen, the Al Alo case represents an important decision by the First Section of the ECtHR for two reasons. As such, on the one hand, it reestablishes the legal principles to safeguard procedural rights found in previous case law. On the other hand, it clarifies the limits of applicability of the trial waiver system, favouring a human rights-based approach in the context of criminal justice procedures. Though the decision of the Court’s First Section to uphold the right to a fair trial is worth of notice, there are some aspects of this case that may require additional consideration and further enquiry. This commentary will now mention two points in the form of concluding remarks: the role of the ECtHR in criminal procedural matters concerning migrants, and the framework of migrant smuggling.

The first point concerns the experiences of migrants and the enforcement of their procedural rights. As discussed in the previous section, the present case offers an opportunity to reflect on the experiences of migrants whose fragile status may have an impact on the enforcement of their defence rights. It should be stressed that upholding the right to a fair trial can be even more challenging for migrants due to linguistic challenges and their difficulties to understand legal proceedings and systems. This case note reflected on the problematic use of the trial waiver system and its heightened risks when applied to criminal cases involving migrants or third-country nationals. Discriminatory practices are widespread in national and supranational judicial systems across Europe. Although this case represents a positive development, it should only constitute the start of a process of enforcing procedural rights, as implementation and applicability challenges are still persistent.

Procedural rights represented the pivotal point of this analysis. Yet, the case needs to be set in the wider context of migrant smuggling and, largely, migratory experiences in Europe. Without providing an in-depth analysis of the issues at stake, this conclusion aims to place the case of Al Alo into the wider context of migrant smuggling. The objective here is to step away from procedural rights and to conclude by mentioning an area which may require further exploration in future enquiries. Indeed, from the broader perspective of migrant smuggling, this case represents an opportunity to reflect on the context of migration in Europe, the lack of safe passages for migrants and asylum seekers, and their need to resort to illegal routes in order to cross borders and reach safety and/or better life opportunities. Although it is noted that the Court rightfully did not address the content and core components of the verdict for Mr. Al Alo, this case can foster further thinking on the root causes of the criminal activity of migrant smuggling itself. Moreover, these events can trigger future enquiries on the reasons why there are many migrants in Europe who still need to rely on human smugglers in order to reach countries of destination.

D. Suggested Reading

To read the case: ECtHR, Judgement of 10 February 2022, Al Alo v. Slovakia, Application No. 32084/19

Case law:

ECtHR, Judgement of 2 March 2017, Palchik v. Ukraine, Application No. 16980/06

ECtHR, Judgement of 31 March 2016, Seton v. the United Kingdom, Application No. 55287/10

ECtHR, Judgement of 21 July 2015, Zachar and Čierny v. Slovakia, Application Nos. 29376/12 and 29384/12

ECtHR [GC], Judgement of 15 December 2015, Schatschaschwili v. Germany [GC], Application No. 9154/10

ECtHR, Judgement of 17 May 2014, Lučić v. Croatia, Application No. 5699/11

ECtHR, Judgement of 18 July 2013, Vronchenko v. Estonia, Application No. 59632/09

ECtHR, Judgment of 10 July 2012, Gabrielyan v. Armenia, Application No. 8088/05

ECtHR [GC], Judgement of 15 December 2011, Al-Khawaja and Tahery v. the United Kingdom [GC], Applications nos. 26766/05 and 22228/06

ECtHR, Judgement of 21 July 2011, Breukhoven v. the Czech Republic, Application No. 44438/06

ECtHR [GC], Judgement of 16 November 2010, Taxquet v. Belgium [GC], Application No. 926/05

ECtHR [GC], Judgement of 2010, Gäfgen v. Germany [GC], Application No. 22978/05

ECtHR, Judgement of 25 February 1992, Pfeifer and Plankl v. Austria, Application No. 10802/84


M. Arslan, The Right to Examination of Prosecution Witnesses, Zeitschrift für Internationale Strafrechtsdogmatik, 6, 218-228;

J.-Y. Carlier et S. Sarolea, Droit des étrangers, Bruxelles, Larcier, 2016, p. 1.

A. Clooney and P. Webb, The Right to a Fair Trial in International Law, Oxford University Press, 2021;

C. Gearty, Al-Khawaja and Tahery v United Kingdom, UK Constitutional Law Association, 9 January 2021;

J. McBride, ‘The Case Law of the European Court of Human Rights on Evidentiary Standards in Criminal Proceedings’, Council of Europe and European Union;

Fair Trials Increased use of trial waivers threatens right to a fair trial across Europe, report finds, 18 January 2022;

K. Payne and P. Henley, Reliance on Witness Statement where Cross-Examination not Available may Violate Right to a Fair Hearing, Human Rights Law Centre, 20 January 2009;

A. Sahay, ECHR finds Slovakia liable for human rights violation over migrant smuggling trial, JURIST, 11 February 2022;

F. Simpson, Upholding fundamental rights or ensuring accurate verdicts? The ECtHR and the use of unchallengeable witness evidence, UK Human Rights Blog, 4 April 2016;

A. Timmer, Gäfgen v. Germany: Threat of Torture to Save a Life?, Strasbourg Observers, 6 July 2010.

Unkown author, Accused of smuggling immigrants did not have the opportunity to examine key witnesses in the trial against him. Violation of the right to examine witnesses, ECHR Case Law, 14 February 2022;

To cite this contribution: M. Rocca, “‘Acts have their being in the witness’: upholding the right to a fair trial in the context of migrant smuggling”, Cahiers de l’EDEM, March 2022.


[1] Integrating and supplementing the Council of Europe Convention on Mutual Assistance in Criminal Matters, approved in 1959.

[2] See, in particular: ECtHR (G.C.) 15 December 2011, Al-Khawaja and Tahery v. the UK, §§ 126-147.

Publié le 31 mars 2022