Schatschaschwili v. Germany: Development of the European Court of Human Rights Approaches on the Right to Examine Prosecution Witnesses

In its judgment in the case Schatschaschwili v. Germany awarded in the end of 2015, the Grand Chamber of the European Court of Human Rights clarified its approaches to the right to examine witnesses for the prosecution guaranteed by Article 6 §1(d) of the European Convention on Human Rights, and to the scope of the corresponding obligations of domestic courts when deciding on disclosure of evidence of the witness in contempt. The Court made an attempt to eliminate contradictions in practice appeared after announcing the precedent-setting judgment in the case Al-Khawaja and Tahery v. Britain in which the criteria required while assessing complaints on reading out were identified. In Schatschaschwili v. Germany the Court adopted a flexible and nuanced approach to the interpretation of law in question so as to allow  appraising the provision of the right to examine a witness for the prosecution as well as  of the overall fairness of the proceedings. The judgment is also valuable for practical purposes as generalization and specification of the standards to be applied by domestic courts in cases where it proves impossible to ensure the presence of a witness for the prosecution at trial.

About the author: Maria Suchkova – LL.M. (University of Essex, UK), practicing lawyer.

Citation: Suchkova M. (2016) Delo Shachashvili protiv Germanii: Razvitie podkhodov Evropeyskogo Suda po pravam cheloveka o prave na dopros svideteley obvineniya: Kommentarii k postanovleniyu Bol'shoy Palaty ESPCH ot 15 de­kabrya 2015 goda (zhaloba no.9154/10) [Сase of Schatschaschwili v. Germany: development of the European Court of Human Rights approaches on the right to examine prosecution witnesses: The commentary to the judgment of the Grand Chamber of the ECHR dated December 15, 2015 (complaint no.9154/10)]. Mezhdunarodnoe pravosudie, no.3 (19), pp.3–9. (in Russian).