ECHR rules regarding procedural guarantees which act as balancing factors in the event of the prosecution’s witness not appearing in court

The article examines the legal position of the European Court of Human Rights regarding the possibility of using as evidence the testimony of a witness who did not appear at the court hearing and was not questioned at the pre-trial stage. It is established that important procedural safeguards are a component of balancing factors, together with which compensate for the difficulties faced by the defense as a result of accepting unverified statements as evidence, which contribute to a fair trial. Reliable procedural guarantees should ensure a proper assessment of the credibility of the evidence in the case under consideration. It has been proven that the reliability of procedural guarantees is established by the European Court of Human Rights referring to cases where the prosecution witness did not appear at the court session, based on paragraph 1 and subparagraph «d» of paragraph 3 of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms. In accordance with the judicial practice of the Court, reliable procedural guarantees where highlighted, with the help of which this supranational body established or did not establish a violation of paragraph 1 and subparagraph «d» of paragraph 3 of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms in the event that the prosecution witness did not appeared at the court session. Examples are given and, for each of them, the views of the Court regarding the reliability of procedural guarantees are emphasized. These examples cover various aspects of the European Court of Human Rights’ consideration of the reliability of procedural guarantees, in particular: when a witness for the prosecution did not appear at the court session, but was able to be questioned at the pre-trial stage; the position in which the defending party found itself during the conduct of face-to-face bets; evaluation of the actions of the investigator during the conduct of face-to-face bets; the reasonableness of national courts’ efforts to locate an absent witness; the need for the consent of the accused and his lawyer to announce the testimony of an absent prosecution witness; assessment by national courts of the weight of the testimony of an absent witness given during the pre-trial investigation and others.