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Part Three The Specific Rights of the Defence, Ch.11 The Right to Test Witness Evidence

From: Human Rights in Criminal Proceedings

Stefan Trechsel

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 25 June 2024

Witnesses — Equality of arms — Right to fair trial — Right to a public hearing — Presumption of innocence — International criminal law, evidence — Appeals — Drug trafficking — Terrorism — Terrorism, financing — Rape and sexual violence — Reprisals — Travaux préparatoires

With respect to the right to test witness evidence, the European Convention on Human Rights (ECHR) guarantee has a role in ensuring that the adversarial character of the proceedings is upheld. The defence must be given a fair chance to challenge evidence against the accused and to bring its own evidence. This must be granted under the same conditions as those applicable to the prosecution, which serves the general principle of equality of arms. This chapter discusses the origins, purpose, and character of the guarantee, along with the proximity to the establishment of the facts, the relevance of the statement as evidence, the model of full compliance with the guarantee, the problems arising with the guarantee, definition of the term ‘witness’, the right to question witnesses at different stages of the criminal proceedings, the exercise of the right to test witness evidence, limitations of the right to test witness evidence, the right to call witnesses, and the equality-of-arms aspect of this right.

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