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The right to confrontation and the taking of
witness evidence in the eld of transnational
criminal justice
O direito ao contraditório e à obtenção da prova testemunhal
nocampo da justiça criminal transnacional
ANTONELLA FALCONE1
CLAUDIO ORLANDO1
(PhD student, Università degli Studi di Messina)
GALILEU–REVISTA DE DIREITO E ECONOMIA · e‑ISSN 2184‑1845
Volume XXIV · 1st January Janeiro–31ST December Dezembro 2023 · pp.57‑76
DOI: https://doi.org/10.26619/2184‑1845.XXIV.1/2.4
Submitted on April 1st, 2023 · Accepted on july 31st, 2023
Submetido em 1 de Abril, 2023 · Aceite a 31 de julho, 2023
SUMMARY: 1. Introduction. – 2. The evolution of transnational evidence-gathering
procedures: trade-offs, gaps and challenges. – 3. The right to confrontation and the taking
of witness evidence in other countries in ECtHR case-law. – 4. The use of videoconferencing
in transnational evidence-gathering procedures and the right to confrontation. – 4.1.
Videoconferencing in the field of transnational criminal justice in Europe. – 4.2. Remote
attendance through video-link in ECtHR case-law. – 5. Concluding remarks.
KEYWORDS: evidence-gathering; witness evidence; videoconferencing; right to
confrontation.
SUMÁRIO: 1. Introdução. – 2. A evolução da recolha transnacional de prova procedimentos
criminais: trade-os, lacunas e desafios. – 3. O direito ao contraditório e à tomada da prova
testemunhal noutros países na jurisprudência do TEDH. – 4. O uso da videoconferência
nos procedimentos criminais transnacionais de recolha de prova e no direito ao contra-
ditório. – 4.1. Videoconferência no domínio da justiça penal transnacional na Europa. –
4.2. Comparência por via remota através de videoconferência na jurisprudência do TEDH.
– 5. Observações finais.
PALAVRASCHAVE: recolha transnacional de prova; prova testemunhal; videoconferência;
direito ao contraditório.
1 (PhD student, Università degli Studi di Messina)
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1. Introduction
In recent years, the fight against transnational crimes has determined an increase in
the number of transnational criminal proceedings, which has brought about significant
changes in transnational evidence law. The possibility of gathering evidence overseas
and using it before domestic courts has become all the more relevant, especially from
the viewpoint of accurate judicial ascertainment. In particular, significant steps forward
have been taken to strengthen judicial cooperation in the gathering of evidence, which, in
turn, has highlighted the need to improve the protection of human rights in transnational
criminal justice2. Indeed, “being subject to a transnational criminal procedure should
not affect the right to defence and should not result in a lowering of the procedural rights
of the accused”3.
In this light, this paper addresses the problems related to the gathering and use of
testimonial evidence obtained in other countries from the perspective of a participatory
approach to transnational criminal justice. Indeed, taking evidence overseas can hamper
the defendants’ right to confrontation if they are not duly given an opportunity to
challenge and question witnesses testifying against them.
This analysis will preliminarily consider whether Article 6(3)(d) ECHR, which
enshrines the right to confrontation, is also relevant in transnational criminal
proceedings4. Furthermore, we will investigate whether the taking of testimonial
evidence in other countries meets the requirement set out by this fundamental provision.
2
*This contribution is the outcome of a joint investigation. A F wrote sections 1, 2, 4, and 4.1. C O
wrote sections 3, 4.2, and 5.
L. B W Transnational Criminal Proceedings, Witness Evidence and Confrontation: Lessons from the
ECtHR’s Case-Law, in Utrecht Law Review, vol. 9, no. 4, 2013, p.128. In light of this, a current definition of transnational
criminal proceedings depicts them as “concerned with the relationship between the requesting and the requested
states (international dimension), as well as with the relationship between the requesting or the requested State
on the one hand and the individual (defendant, victim, third party) on the other (internal dimension)”. M. B,
M. B A. S Judicial Protection in Transnational Criminal Proceedings, Springer, Cham, 2020, p.1. On
this topic, see T. H, § 74 IRG, in W. S, O. L, S. G, T. H, S. T
(eds.), Internationale Rechtshilfe in Strafsachen, C.H. Beck, 2020, München; J. V, C. B, Vor § 1 IRG, in H.
G, P.G. P, C. K, N. G (eds.), Internationaler Rechtshilfeverkehr in Strafsachen, C.F. M,
Heidelberg, 2019. This notion proves that international cooperation – irrespective of the mutual legal assistance
procedures and those based on mutual recognition – rely upon a human rights-oriented perspective and on a
participatory understanding of the gathering of transnational evidence. S. R, Audi Alteram Partem in
Criminal Proceedings. Towards a Participatory Understanding of Criminal Justice in Europe and Latin America, Springer,
Cham, 2017, pp. 511-527.
3 L. B W Transnational Criminal Proceedings, Witness Evidence and Confrontation: Lessons from the
ECtHR’s Case-Law, cit., p.128.
4 See S G: Das Recht auf Konfrontation eines Auslandsbelastungszeugen. Eine europäische Perspektive aus Karlsruhe, in
M. A. Z, H. H, W. K C. R (eds.), Gesamte Strafrechtswissenschaft in Internationaler Dimension.
Festschrift für Jürgen Wolter zum 70. Geburtstag am 7. September 2013, Duncker & Humboldt, Berlin, 2013, pp. 1335-1370.
See also H. S, International and European criminal law, Beck-Hart-Nomos, Munich, 2013.
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In particular, after clarifying the meaning of the formulation of Article 6(3)(d) ECHR,
which acknowledges the right of the accused ‘to examine or have examined witnesses
against him’, there is a need to understand (i) which country should bear the responsibility
for ensuring that the accused enjoys an adequate opportunity for confrontation5 (ii) and
whether the admissibility and the use of untested evidence taken abroad could still entail
a fair trial.
To this end, we will analyse whether and to what extent the evolution of transnational
evidence-gathering procedures – from mutual legal assistance to mutual recognition
models – can ensure a proper protection of the right to confrontation. Mutual legal
assistance by means of letters rogatory, indeed, has been traditionally used to convey
statements rendered abroad by witnesses, experts, victims, suspects, or defendants which,
in turn, have been read out at the trial without cross-examination. However, when the
defence is not allowed to effectively contribute to the gathering of testimonial evidence
overseas – due, for instance, to a lack of an accurate information about the opportunity of
formulating or requesting that specific questions be put to the witness abroad –, recourse
to letters rogatory could infringe upon the right of the accused to challenge prosecutorial
arguments. In light of this, with a view to more human rights-oriented judicial cooperation,
this paper aims to explore new models of ensuring the protection of this relevant right.
In particular, we will focus on the potential advantages of videoconferencing, which as
we will see is not just to be understood as an alternative method of confrontation held in
courtrooms but also as an innovative technique to replace the outdated systems offered
by letters rogatory.
To tackle these issues properly, there is need for a comprehensive approach aimed at
providing an overview of the principal rules and caselaw that are currently available in
the European legal scenario.
5 We need to examine whether an approach based on full inquiry into foreign law is compatible with the principle
of transnational fairness in criminal proceedings, particularly in the European Union, where cooperation among
member states is based on mutual trust. It should be remembered that the non-inquiry approach assumes that
the formalities and procedural rules relating to the gathering of evidence in another state are not subject to
questioning or confirmation by the national authorities conducting the proceedings.
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2. The evolution of transnational evidence-gathering procedures: trade-
offs, gaps and challenges.
As has been anticipated, letters rogatory are the most used method of gathering evidence
overseas and are provided for by mutual legal assistance conventions6.
Starting with the Council of Europe level, it is worth mentioning the 1959 European
Convention on Mutual Assistance in Criminal Matters (often called the “mother treaty”)7.
In line with a traditional understanding of national sovereignty, the Convention allowed
for evidence-gathering cooperation based on the locus regit actum principle, according
to which the gathering of evidence was governed by the law of the state where it took
place. However, this principle entailed two main shortcomings. On one hand, it led to a
‘patchwork procedure’, as it combined the rules of state A governing the evidence-gathering
with those of state B regarding the admissibility of evidence taken abroad8. In this way,
evidence, despite being admissible according to the law of the cooperating country,
could be regarded as inadmissible from the perspective of the law of the state in which
it was to be used9, thus jeopardising judicial ascertainment. On the other hand, the 1959
Convention did not expressly deal with the right to challenge prosecutorial arguments.
Indeed, witnesses’ statements rendered abroad under lex loci were conveyed through
written letters rogatory and read out to the court of the trial country without cross-
examination. Besides, Article 4 of the 1959 Convention specified that national authorities
and parties could attend the carrying out of a letter rogatory only if the requested state
6 For the sake of completeness, it should be borne in mind that a letter rogatory (or letter of request for judicial
assistance) is a request from one state to another one asking for the carrying out of a procedural activity or
act which, if done without the cooperating country’s intervention, would constitute a violation of territorial
principle and sovereignty. The foreign state has no obligation to execute the letters rogatory and the decision as
to whether to enforce them is ultimately at its own discretion. However, the reciprocity principle – that governs
the international relationships between states in the absence of specific treaties – usually suffices, provided that
the letters rogatory’s execution neither surpasses the jurisdiction or power of the requested state’s judiciary nor
impinges upon its sovereignty. D. V, Dalla rogatoria all’acquisizione diretta, in G. L G, M. R. M
(ed.), Rogatorie penali e cooperazione giudiziaria internazionale, Giappichelli, Torino, 2003, p.417 ff.
7 The Council of Europe created new legal instruments related to mutual legal assistance, with a focus on the
1990 European Convention on laundering, search, seizure, and confiscation. Additionally, since 1995, the Council
of Europe’s Committee of Experts on the Operation of European Conventions in the Criminal Field has been
working on updating the 1959 CoE Convention for 21st century crime fighting, leading to the signing of the
Second Additional Protocol on 8 November 2001. See G. V, Eu conventions enhancing and updating
traditional mechanisms for judicial cooperation in criminal matters, in Revue Internationale de Droit Pénal, vol. 77, n. 1-2,
2006 p.80; K. K, Locus/Forum Regit Actum – A Dual Principle in Transnational Criminal Matters, in Hungarian
Journal of Legal Studies, vol. 60, n. 2, 2019, p.161.
8 Along these lines, see S. G, Die „Verkehrsfähigkeit von Beweisen“ im Strafverfahren, in Zeitschrift für die gesamte
Strafrechtswissenschaft, 2003, p.132 ff.; H S, F Z, Manifest zum Europäischen Strafverfahrensrecht.
European Criminal Policy Initiative, in Zeitschrift für Internationale Strafrechtsdogmatik, 2013, p.412.
9 Cf. I. Z, Fragmentiertes Strafverfahren. Beweiserhebung und Beweisverwertung nach dem Verordnungsentwurf zur
Europäischen Staatsanwaltschaft, in Zeitschrift für Internationale Strafrechtsdogmatik, no. 3, 2015, p.149.
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agreed. However, even though this Convention developed a new participatory form of
MLA cooperation, it did not expressly grant the defence the right to actively participate in
the taking of evidence abroad, thus resulting in a possible exclusion of the accused from the
questioning of foreign witnesses, victims and experts10. The occurrence that defendants
and their defence counsels were not able to effectively participate in the gathering of
evidence overseas turned out to expose the right to confrontation to infringements. In
order to avoid the breach of this relevant right, the competent authorities of the trial
country had two options: either to declare inadmissible the evidence obtained abroad or
“giv[e] lesser credit to such ‘tainted’ evidence”11.
To maximise the chances of evidence gathered abroad being admissible in the trial
country, the European Convention on Mutual Assistance in Criminal Matters of 2000
(ECMACM) introduced a new approach in the framework of the European Union 12. The
2000 Convention tempered the locus regit actum principle, as the requested state had to
comply with requirements and procedures specifically indicated by the requesting one
(lex fori), unless otherwise provided by the Convention and provided that the denoted
procedures did not conflict with the fundamental principles of the law of the requested
member state [Article 4(1)]. Although this flexible mechanism represented a significant
change and led to great expectations for the future efficiency of judicial cooperation
in Europe, the combination of lex loci and lex fori entailed “new gaps that required
revision of both the instrument and its regulatory framework in order to be solved”13.
Firstly, the request to apply certain formalities or procedures did not necessarily imply
the admissibility of evidence at trial14. Secondly, from the viewpoint of this study, it
is noteworthy that not even the Brussels Convention attached great importance to the
participatory rights of the accused. Indeed, the defendant’s participation in evidence-
gathering abroad, despite being theoretically possible, was still subjected to a request by
the judicial authority of the trial state [Article 6(2)], thus inevitably jeopardising the very
10 Although the national authorities’ possibility to attend the execution of the letter rogatory seems limited, Article
4 was interpreted in a way that allowed for the competent authorities to suggest necessary formalities and
procedures for the admissibility at trial of evidence gathered abroad. See D.V, Dalla rogatoria all’acquisizione
diretta, cit., p.423.
11 See R. S, Solution models and principles governing the transnational evidence-gathering in the EU, in S.
R ed, Transnational Evidence and Multicultural Inquiries in Europe. Developments in EU Legislation and New
Challenges for Human Rights-Oriented Criminal Investigations in Cross-border Cases, Springer, Cham, 2014, p.163.
12 Indeed, the Convention states that requests for mutual assistance shall be transmitted directly between the
competent judicial authorities, unless otherwise provided for (Article 6).
13 See K. K, Locus/Forum Regit Actum, cit. p.161.
14 For the sake of completeness, one might also consider that recourse to foreign rules did not always ensure the
lawfulness of evidence-gathering. See M. K, Mutual admissibility of evidence and the European investigation
order: aspirations lost, in ERA Forum, vol. 19, 2019, p.394.
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essence of the right to confrontation. Furthermore, even though the defence was allowed
to participate in the taking of testimonial evidence overseas, the accused were not always
granted the right to effectively contribute to the evidence-gathering because they were
not informed about the conditions in which witness examination would take place abroad.
Nonetheless, the approach set out by the 2000 Convention did not fit the EU judicial
cooperation based on the mutual recognition principle. As is well known, the Tampere
European Council, by dealing with the problems of the free movement of evidence
(Beweisverkehr) within the EU, put forward the innovative concept of mutual admissibility
of evidence, according to which “evidence lawfully gathered by one member state’s
authorities should be admissible for the courts of other member states, assuming the
standards that are employed there”15. However, the European Union failed to enact
coordinated rules meant to improve the mutual admissibility of investigative measures
and even years later introduced a legal instrument, the European Investigation Order
(EIO)16, which followed a rather different path.
Indeed, EIO represents a new channel of cooperation between judicial authorities,
replacing the existing evidence-gathering instruments developed in the field of MLA
between member states. Article 9(2) of the directive 2014/41/EU sets out the main rules
governing evidence-gathering abroad, which constitutes a hybridisation between the
rigidity of mutual recognition and the flexibility of mutual legal assistance principles.
Pursuant to Article 9(2), indeed, the executing authority must observe the formalities and
procedures specifically indicated by the issuing authority unless they are “contrary to the
fundamental principles of the law of the executing state”17. The right to confrontation and
defence rights gain particular relevance in the framework of the European Investigation
Order (EIO), as reflected in the general reference to the fundamental rights of the person
involved in a transnational inquiry. However, confrontation in taking evidence abroad
still depends on whether it is permitted by the law of the executing state or explicitly
requested by the ordering authority. Additionally, on one hand, the EIO directive expressly
15 European Council, Presidency Conclusions, Tampere, 15 and 16 October 1999, p.36. The principle of assimilation
also played a supporting role since, if a similar (domestic) procedural act does exist in the legal system of the
requested state, legal assistance cannot be refused. K. K, Locus/Forum Regit Actum, cit., p.164.
16 The directive 2014/41/EU ensures the fulfilment of national rules governing the admissibility of evidence, but
at the same time it does not entail that national law on evidence-gathering will be strictly met. This seems to
be problematic, if one considers the rationale behind the exclusionary rules, which aim at balancing the fact-
finding method and the protection of fundamental rights. M. D, L’impatto dell’ordine europeo di indagine
penale sulle regole probatorie nazionali, in Diritto penale contemporaneo, no. 3, 2016, p.64.
17 “A purification [...] in favour of the binding nature of (certain) individual interests is required to make the EIO
lawful”. S. G, Grenzüberschreitende Beweissammlung, in Zeitschrift für die gesamte Strafrechtswissenschaft, vol. 125,
2013, p.573.
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provides the competent authorities of the issuing state with the possibility of taking part
in the evidence-gathering overseas. This request can be rejected only by alleging the breach
of fundamental principles. On the other hand, nothing is said about the participation of
the defence, which, although not excluded, is therefore not specifically recognised [Article
9(4)], thus jeopardising, once again, the right to confrontation18.
This short – and non-exhaustive – overview has revealed that the problem of achieving
a trade-off between the requirements of the issuing state’s law and those of the executing
state’s law remains unsolved. As has been pointed out, this is essentially due to the lack of
legal models which can ensure mutual admissibility of evidence, and, above all, a unitary
and shared system that can provide participatory rights with an adequate protection19.
3. The right to confrontation and the taking of witness evidence in other
countries in ECtHR case-law
The analysis carried out so far on the evolution of legal instruments regarding transnational
evidence-gathering procedures is of fundamental relevance if we are to properly tackle
the difficult challenges posed by the need to enhance the participatory rights of the
accused in transnational cases. We have seen that the European Convention on Mutual
Assistance of 1959 did not enable the defendant to examine witnesses against him in the
event of testimonial evidence being gathered in another country through letters rogatory.
This raises the question as to whether Article 6(3)(d) ECHR also applies to transnational
criminal proceedings. This provision – which, as is well known, grants everyone charged
with a criminal offence the right to examine or have examined witnesses against him
– requires that the accused must be granted an adequate and proper opportunity to
challenge and question prosecutorial witnesses either when the statements were made or
at a later stage of the proceedings20.
18 M. R. M, Oltre le rogatorie: i nuovi strumenti per la circolazione degli atti investigativi e delle prove penali,
in M. R. M ed. I nuovi orizzonti della giustizia penale europea, Giuffrè, Milano, 2015, pp. 217-224. S.
R, Procedimento penale, diritto di difesa e garanzie partecipative nel diritto dell’Unione Europea, in Diritto penale
contemporaneo, 2018, p.33.
19 R. D C, Ordine europeo di indagine e poteri sanzionatori del giudice, in Diritto penale contemporaneo, no. 4, 2015. In
the absence of a legislative intervention, we hope that the “EIO could produce a kind of indirect harmonisation”.
F. S, The European Investigation Order for Evidence Gathering Abroad, in R. B, T. R eds.),
EU Criminal Justice. Fundamental Rights, Transnational Proceedings and the European Public Prosecutor’s Oce, Springer,
Cham, 2019, p.101.
20 In this light, see ex multis ECtHR, judgment of 3 November 2011, Vanfuli v. France, Application no. 24885/05, § 107;
I judgment of 19 October 2006, Majadallah v. Italy, Application no. 62094/00; I judgment of 20 September
1993, Saïdi v. France, Application no. 14647/89, § 43; I judgment of 24 April 2004, Zhoglo v. Ukraine, Application
no. 17988/02, § 38; I judgment of 15 June 1992, Lüdi v. Switzerland, Application no. 12433/86, § 47.
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To properly address this problem, we should start with the solutions adopted several
years ago by the European Commission of Human Rights (EComHR). The EComHR,
indeed, had addressed this issue in the case X., Y. and Z. v. Austria of 1973, outlining that,
even if the European Convention on Mutual Assistance did not entitle the accused to
examine witnesses overseas, everyone charged with a criminal offence must be granted
the right to challenge prosecutorial arguments also in the gathering of evidence in other
countries21. This approach posed the premises for a participatory understanding of
transnational evidence-gathering and for a discussion on the relationship between the
needs of transnational criminal proceedings and confrontation rights.
Indeed, after having assumed that the defendant’s right to confrontation is applicable
regardless of whether the testimonial evidence is obtained in the trial country or
abroad22, we shall analyse whether the taking of witness evidence overseas meets the
requirements set out by Article 6(3)(d) ECHR. This is a difficult challenge to address
since the transnational dimension of a criminal procedure entails the need to clarify the
following aspects: first, who holds the responsibility for ensuring a proper opportunity
of confrontation; second, the consequences of the admissibility and the use in the trial
country of the untested evidence taken abroad.
In order to tackle these two fundamental issues, we should clarify the meaning of
the formulation of Article 6(3)(d) ECHR which, as noted, acknowledges the right of the
accused ‘to examine or have examined witnesses against him’. The drafters of the ECHR
adopted a broad interpretation of the right to confrontation, allowing for both direct and
indirect confrontation – i.e., a judicial hearing conducted by an impartial body, such as an
investigating magistrate – provided that the defence is effectively involved in the taking
of evidence23. Clearly, international cooperation makes it difficult to always ensure direct
confrontation with prosecutorial witnesses24. In the light of this, in the case P.V. v. Federal
Republic of Germany the EComHR stated that
21 EComHR, decision of 5 February 1973, X., Y. and Z. v. Austria, Application no. 5049/71.
22 See B. S Solution Models and Principles Governing the Transnational Evidence-Gathering in the EU, cit.,
p.163.
23 See J.D. J, SJ S, The Internationalisation of Criminal Evidence. Beyond the Common Law and Civil Law
Traditions, Cambridge University Press, Cambridge, 2012, p. 349; S R Personal Participation in Criminal
Proceedings, In Absentia Trials and Inaudito Reo Procedures. Solution Models and Deficiencies in ECtHR Case-Law, in S.
Q S R eds.), Personal Participation in Criminal Proceedings. A Comparative Study of Participatory
Safeguards and In Absentia Trials in Europe, Springer, Cham, 2019, p.597; S T Human Rights in Criminal
Proceedings, Oxford University Press, Oxford, 2005, p.311 ff.; JR S Hearsay evidence in criminal proceedings,
Hart Publishing, Oxford, 2014, p.48 ff.
24 S R Audi Alteram Partem in Criminal Proceedings, cit., p.419.
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“[the right to confrontation] is not only complied with if the accused or his
defence counsel have the opportunity of putting questions to the witnesses
themselves, but also if they can request that certain questions are put to the
witness by the court. Especially, this holds true if witnesses are to be examined
on commission”25.
The ECtHR confirmed this approach in the case Solakov v. The Former Yugoslav Republic
of Macedonia, stressing that there was no violation of Article 6(3)(d) ECHR since the defence
was informed of the date of the hearing and of the possibility of formulating written
questions to the witness abroad26. Nevertheless, this solution does not seem suitable in
the case of transnational criminal proceedings. Since indirect confrontation does not
grant the defence the same opportunities as cross-examination, the accused must be put
in a position to effectively contribute to the taking of prosecutorial evidence overseas, by
at least being thoroughly informed about the possibility of formulating questions to the
witnesses abroad and about the conditions in which the hearing will take place27. In any
case, in our opinion, a video record of the questioning should be assured, with a view to
more efficient judicial cooperation. However, in the Solakov case the applicant argued that
“the investigating judge had summoned [his] lawyer only one week before the trip” and
that “the summons had contained no detailed description about the venue or exact date
of the questioning, the number and names of the witnesses to be heard, or the questions
that the investigating judge wished to put to them”28. It is quite evident that in such
circumstances the accused was not able to exercise the participatory rights enshrined
in the European Convention. In the light of this, the solution adopted by the Court seems
to be somehow questionable. As we will note in the subsequent paragraphs, innovative
methods of confrontation – such as videoconferencing – could fill the gaps produced by
the taking of evidence overseas by means of letters rogatory, enabling a more interactive
way of participating in the hearing and questioning the witnesses abroad.
Against this background, we can now focus on the critical topics raised above: i.e.,
the responsibility for ensuring confrontation, and the admissibility and the use in the
trial country of the untested evidence taken abroad. These problematic issues should be
25 Cf. EComHR, decision of 13 July 1987, P.V. v. Federal Republic of Germany, Application no. 11853/85; see A. V H,
M. L, Transnational cooperation in criminal matters and the safeguarding of human rights, in Utrecht Law
Review, vol. 1, no. 2, 2005, p.19.
26 See ECtHR, judgment of 31 October 2001, Solakov v. The Former Yugoslav Republic of Macedonia, Application no.
47023/99, § 62-67.
27 Cf. S R Audi Alteram Partem in Criminal Proceedings, cit., p.419.
28 ECtHR, Solakov v. The Former Yugoslav Republic of Macedonia, cit., § 41.
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analysed together since they are strictly linked with each other. Once again, we should
start with the solutions adopted by the EComHR in the cases X., Y. and Z. v. Austria and
P.V. v. Federal Republic of Germany29. In X. Y. and Z., the Commission highlighted that, if
the witness examination takes place in another country, the cooperating country holds
full responsibility for ensuring confrontation30. In P. V., the EComHR argued that the
countries involved in transnational evidence-gathering procedures are responsible
only for applying their own law. These conclusions were in line with the international-
law instruments existing at the time of this decision (i.e., the European Convention on
Mutual Assistance of 1959, which was based on the locus regit actum principle). Therefore,
there is a need to understand whether these solutions are still valid today in the light of
developments in the field of judicial cooperation and ECtHR case-law. As we have seen, the
2000 Convention of Mutual Assistance and the EIO directive softened the locus regit actum
principle, recognising a flexible mechanism of combination between lex loci and lex fori31.
Indeed, even though the competent authority of the trial country has no jurisdiction in
the activities that must be carried out in the cooperating country, the latter should ensure
the accused a proper opportunity of confrontation if lex fori provides for it and the trial
country specifically requests it.
The ECtHR shared such a view in A.M. v. Italy. In this case, the applicant complained
that he had been convicted only on the basis of testimonial evidence obtained by means
of letters rogatory in the USA which was read out at his trial before the Italian Criminal
Court without confrontation having ever taken place32. In particular, the applicant argued
that the rogatory letters had been issued without his knowledge and that, as a result, he
29 See also the well-known Soering case (ECtHR,7 July 1989, Soering v United Kingdom, Application no. 14038/88),
in which the ECtHR decided that “although the Convention does not require contracting states to impose
Convention standards on non-contracting states, the actions of the cooperating contracting State can be tested
against the Convention in as far as its cooperation has as a direct consequence of the exposure of an individual
to prescribed treatment”. See, A. V H, M. L, Transnational cooperation in criminal matters and the
safeguarding of human rights, cit., p.15; J. T P, International extradition, the rule of non-inquiry, and the problem of
sovereignty, in Boston University Law Review, vol. 90., 2010, pp. 1973–2029; S. R, Introduction to the Proposal
of a European Investigation Order: Due Process Concerns and Open Issues, in S. R (ed.), Transnational Evidence
and Multicultural Inquiries in Europe. Developments in EU Legislation and New Challenges for Human Rights-Oriented
Criminal Investigations in Cross-border Cases, Springer, Cham, 2014, p.15; I O contributo do direito internacional de
direitos humanos à definição das garantias do devido processo em matéria de justiça penal transnacional. Uma comparação
entre as jurisprudências do Tribunal europeu de direitos do homem e da Corte interamericana de direitos humanos, in
M.M.G. V A W eds Direito e Liberdade. Estudos em homenagem ao professor doutor Nereu José
Giacomolli, Almedina Brasil, Almedina, 2021, p.803 ff.
30 See EComHR, X., Y. and Z. v. Austria, cit.: “The Austrian authorities were fully responsible for the form and conduct
of this hearing on commission including the question of who should participate at the hearing”.
31 Cf. S R Audi Alteram Partem in Criminal Proceedings, cit., p.418; F. S The European Investigation
Order for Evidence Gathering Abroad, cit., p.86 ff.
32 Cf. ECtHR, judgment of 14 December 1999, AM v. Italy, Application no. 37019/97, § 21; see R V Transnational
Inquiries and the Protection of Human Rights in the Case-Law of the European Court of Human Rights, in S R ed.),
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had been unable to exercise the rights and liberties afforded by Article 14 of the Mutual
Assistance Treaty between Italy and USA33. Indeed, it is interesting to note that no lawyer
had been allowed to attend the witnesses’ examination due to a specific request of the
Italian public prosecutor. In the light of this, the ECtHR found a violation of Article 6(3)
(d) ECHR, since the defence had had no opportunity of challenging the reliability of the
decisive evidence taken abroad.
It is worth noting that in this case the ECtHR, in order to verify whether the proceeding
was conducted fairly, applied the ‘sole or decisive rule’. This rule – which has been developed
to strike a balance between a strict understanding of the right to confrontation and the
use of untested evidence in national proceedings34 – acknowledges that if the accused
had no chance to challenge evidence in any stage of the domestic proceeding he cannot
be convicted solely or mainly on the basis of such evidence35. Within this perspective, it
is important to stress that in recent years the approach of the ECtHR in the field of the
right to confrontation has significantly changed. In the landmark decisions Al-Khawaja
and Tahery v. The United Kingdom and Schatschaschwili v. Germany, the Court ruled out that
‘the sole or decisive rule’ could be inflexible, stressing that, where a conviction is based
solely or decisively on untested evidence, the Court must scrutinise whether domestic
authorities provided for sufficient counterbalancing factors aimed at compensating for
the lack of confrontation36. Therefore, in the event of untested evidence being the sole
Transnational Inquiries and the Protection of Fundamental Rights in Criminal Proceedings. A Study in Memory of Vittorio
Grevi and Giovanni Tranchina, Springer, Cham, 2013, p.31.
33 Article 14 of the Mutual Assistance Treaty between Italy and USA states that: “A person from whom evidence
is sought shall, if necessary, be compelled to appear and testify to the same extent as would be required in
criminal investigations or proceedings in the Requested State. Upon request, the Requested State shall
specify the date and place of the taking of testimony. TheRequested Stateshall permit the presence [at the
hearing] of an accused, counsel for the accused, and persons charged with the enforcement of the criminal
laws to which the request relates. The executing authority shall provide persons permitted to be present [at
the hearing] the opportunity to question the person whose testimony is sought in accordance with the laws of
theRequestedState. The executing authority shall provide persons permitted to be present [at the hearing] the
opportunity to propose additional questions and other investigative measures. Testimonial privileges under the
laws of theRequestingStateshall not apply in the execution of a request, but such questions of privilege shall
be preserved for theRequestingState”.
34 S R Audi Alteram Partem in Criminal Proceedings, cit., p.329.
35 See ECtHR, judgment of 27 February 2001, Lucà v. Italy, Application no. 33354/96, § 40: “where a conviction is
based solely or to a decisive degree on depositions that have been made by a person whom the accused has had
no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the
defence are restricted to an extent that is incompatible with the guarantees provided by Article 6”.
36 See ECtHR, judgment of 15 December 2011, Al-Khawaja and Tahery v. The United Kingdom, Applications nos.
26766/05, 22228/06, § 147; I, judgment of 15 December 2015, Schatschaschwili v. Germany, Application no. 9154/10,
§ 116: “Given that the Court’s concern is to ascertain whether the proceedings as a whole were fair, it must review
the existence of sufficient counterbalancing factors not only in cases in which the evidence given by an absent
witness was the sole or decisive basis for the applicant’s conviction but also in those cases where, following
its assessment of the domestic courts’ evaluation of the weight of the evidence, it finds it unclear whether the
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or decisive element against the accused, its use at trial does not automatically entail a
breach of the right to confrontation pursuant to an overall examination of the fairness of
the proceedings37. However, the counterbalancing factors must permit a fair and proper
assessment of the reliability of that evidence38.
Within this new framework, the solution adopted by the Strasbourg Court in the case
Paić v. Croatia is all the more relevant. In this case, the ECtHR found a violation of Article
6(3)(d) ECHR since the defendant never had the opportunity of examining or having
examined the key prosecutorial witness, whose testimonial evidence had been gathered
in the Czech Republic. Indeed, neither the applicant nor his lawyer were invited to put
questions to the witness abroad and no video recording of the questioning was shown at
the hearing in Croatia39. This case can be distinguished from the previous ones because the
ECtHR also attached significant importance to the evaluation of the existence of adequate
counterbalancing factors. In particular, the Court pointed out that “the national courts
did not even attempt to summon [the prosecution witness] to the applicant’s trial and that
the reasons they provided for such conduct were not sufficient”40. Moreover, in the view
of the Court, the fact that the accused was able to challenge prosecutorial arguments by
giving evidence himself or examining other witnesses cannot be deemed as a sufficient
counterbalancing factor41.
This approach is particularly meaningful for this study for two main reasons: first,
because the Court stresses the need to verify whether other fundamental safeguards
could justify a potential breach of the Convention occurring in another country; second,
since this solution casts doubts on what country should hold the responsibility for
ensuring for the accused suitable opportunities for confrontation. As we have seen, the
accused must be granted the opportunity to examine or have examined the prosecutorial
witnesses overseas if provided for by lex fori and requested by the trial country. From
this it follows that the trial country should not be held responsible for not having applied
evidence in question was the sole or decisive basis but is nevertheless satisfied that it carried significant weight
and that its admission may have handicapped the defence”.
37 See L. B W Transnational Criminal Proceedings, Witness Evidence and Confrontation: Lessons from the
ECtHR’s Case-Law, cit., p.130.
38 Cf. ECtHR, Schatschaschwili v. Germany, cit., § 125: “The 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. The more
important that evidence, the more weight the counterbalancing factors would have to carry in order for the
proceedings as a whole to be considered fair”.
39 See ECtHR, judgment of 29 March 2016, Paić v. Croatia, Application no. 47082/12, § 47; see also I judgment
of 18 December 2014, Scholer v. Germany, Application no. 14212/10, § 60; I judgment of 25 April 2013, Yevgeniy
Ivanov v. Russia, Application no. 27100/03, § 49; I judgment of 18 July 2013, Vronchenko v. Estonia, Application no.
59632/09, § 65.
40 ECtHR, Paić v. Croatia, cit., § 52.
41 ECtHR, Paić v. Croatia, cit., § 51.
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any counterbalancing factor related to activities that do not fall within its jurisdiction42.
Nevertheless, the ECtHR seems to broaden the scope of the ‘counterbalance test’, by
verifying whether other procedural guarantees offered by the trial country could offset
the difficulties faced by the defence due to the admission of witness evidence taken abroad
without confrontation. This method seems problematic, since a strict application of this
test would give too much leeway to the interested countries43, relieving the cooperating
country from its duty to ensure to the accused suitable opportunities of confrontation,
and encouraging the trial state to use the untested evidence collected abroad on the basis
of the possibility to compensate for a previous lack of confrontation at the later stage.
4. The use of videoconferencing in transnational evidence-gathering
procedures and the right to confrontation
Letters rogatory, as seen above, are still today the main means of gathering evidence
overseas44. However, if the accused is not allowed to effectively contribute to the taking of
witness evidence, recourse to letters rogatory can infringe upon their fair trial rights, and
especially the right to confrontation45. This was a concrete risk according to the solution
envisaged by the EComHR and later confirmed by the ECtHR, which acknowledged
the defendant’s right to put written questions to the witness abroad. In the light of the
42 See S R O contributo do direito internacional de direitos humanos à definição das garantias do devido processo em
matéria de justiça penal transnacional. Uma comparação entre as jurisprudências do Tribunal europeu de direitos do homem
e da Corte interamericana de direitos humanos, cit., p.803 ff.
43 Judge Paulo Pinto de Albuquerque eloquently argued that “the cure was worse than the disease: […] such
application of the three-step examination would imply its redundancy so long as the overall fairness test was
fulfilled, which would not only fail to provide any guidance to the national authorities as to the appropriate
application of the Al-Khawaja and Tahery test, but indeed would give them too much leeway”. See ECtHR,
judgment of 18 December 2018, Murtazaliyeva v. Russia, Application no. 36658/05, Dissenting opinion of Judge Paulo
Pinto de Albuquerque, § 48.
44 Summoning and hearing witnesses from foreign countries is often a cumbersome business. See A. R,
Depositions, Commissions and Letters Rogatory in a Conflicts of Law Case, in Duquesne University Law Review, vol.
4, no. 115, 1965, p.115 ff. According to Klimek, in adversarial legal systems, in-person witness testimony and
cross-examination are of the utmost importance, thus making evidence obtained by foreign authorities less
‘desirable’. In contrast, inquisitorial systems, which rely on written evidence, have less of an issue with this.
L. K, Free movement of evidence in criminal matters in the EU, in The Law Quarterly, no. 4, 2012, p.252. The
requesting state may perhaps have no means of coercion to enforce the examination of the witness in the trial
country. Furthermore, structural measures are needed to provide for the hearing of a witness or a defendant
who is able and willing to come to the court from abroad. It is even more troublesome for judges, prosecutors,
and lawyers to travel overseas and hear the persons who are, conversely, unable or unwilling to take part in the
trial. Cf. J. K, Testimony through an international video conference basic idea, relevant legal instruments
and first experiences in Europe, in 134th International training course visiting experts’ papers, https://www.unafei.or.jp/
publications/pdf/RS_No73/No73_08VE_Kapplinghaus3.pdf, p.34.
45 D. V, Dalla rogatoria all’acquisizione diretta, in G. L G, M. R. M (ed.), Rogatorie penali e
cooperazione giudiziaria internazionale, Giappichelli, Torino, 2003, p.417 ff.
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evolution of technology, one might wonder whether modern tools, which allow for remote
attendance, could represent a valid solution to the unsolved problems arising from a
participatory understanding of transnational evidence-gathering and related to the right
to confrontation.
4.1. Videoconferencing in the field of transnational criminal justice in Europe
To start with videoconferencing46, it is apparent that it makes it possible to overcome
most of the shortcomings linked to the participatory rogatory model as well as to the
co-celebrating one, which require the judicial authorities and the participants to travel
overseas to gather evidence. Videoconferencing entails undeniable advantages for the
fulfilment of the right to confrontation in transnational evidence-gathering procedures.
For instance, the recourse to online video-link connections enables the accused and their
defence counsels to participate in witness examination – albeit remotely – and provide
them with greater opportunities to prepare an effective defence strategy, since they can
put their own questions directly to the witnesses abroad and, at the same time, challenge
the prosecutorial arguments.
In the field of transnational criminal justice, there is little doubt that remote
participation in the hearing protects the right of the accused to confront witnesses
against him more effectively than is possible by requesting that specific questions be
put by the competent authority to the declarant. Hence, it is no surprise that recourse
to videoconferencing has increased at a transnational level where the transfer of the
evidence gathered in the ‘best place’ is recurrent. This assumes that the ‘best place’ is
where it is appropriate or possible to gather evidence or where it is simply located (i.e.,
delocalisation)47.
The Convention on Mutual Legal Assistance of 2000 already allowed for the use of
videoconferencing methods when it is necessary to gather testimonial evidence of
witnesses and experts abroad (Article 10) if the person to be heard has given consent.
However, according to this instrument a remote connection may not be initiated in two
cases. Firstly, whenever a breach of the fundamental principles of the requested country’s
46 For the purposes of this paper, the term ‘videoconferencing’ refers to a system that allows the two-way and
simultaneous communication of image and sound enabling visual, audio and verbal interaction during the
remote hearing.
47 It has been also noted that, since some states require the presence of suspects and defendants for specific acts,
especially in the first interviews carried out during the investigation or pre-trail detention or when the exercise
of defence rights presupposes physical presence, recourse to videoconferencing systems may be beneficial for
suspects and defendants when European arrest warrants (EAWs) or International Arrest warrants (IAWs) are
unnecessary because they are simply ordered to secure physical presence in the requesting state and there are
no serious risks of escaping.
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legal system has occurred and, secondly, when there lack the technical means necessary
to establish the link in the requested State48. The arrangements introduced by the
Bruxelles Convention in this regard are of the utmost importance, as they transformed
long-distance cooperation into a form of close assistance that combines a regular request
for assistance by the requested member state and a direct exercise of jurisdiction by the
issuing member state. On one hand, the requested member state was responsible for
questioning the person to be heard, providing technically the real-time link, and making
sure that national fundamental rights and procedural guarantees were respected. On
the other hand, the hearing was conducted by or under the supervision of the judicial
authority of the requesting member state according to its domestic law.
Evidence-gathering by means of videoconference was positively welcomed at the time
of its enactment. Not surprisingly, the convention’s rules were incorporated by Article
24 (Hearing by videoconference or other audio-visual broadcasting) in the EIO directive,
which lays down specific rules on hearings by videoconference. The remote examination
of witnesses, victims, experts, and defendants is conducted, or at least supervised by the
authorities of the issuing state and, as far as possible, the executing state provides the
foreign country only with technical arrangements49.
Nevertheless, hearings by videoconference entail some problematic issues. The main
difficulties concern practical and technical aspects, which can infringe upon the right to
confrontation. In some cases addressed by Eurojust, for instance, the issuing authorities
did not indicate the questions to be put to the witness or did not clarify whether the
participation of a judicial or police authority was necessary. Moreover, Eurojust’s
48 The requesting country could remedy this deficiency by providing the necessary technical equipment.
49 This rule clearly recalls Article 10 of the Brussels Convention. Despite these similarities, some differences
can be stressed. With regard to the remote hearing, there is no longer reference to the “incompatibility” or
“impossibility” of the witness or expert appearing in the territory of the requesting state (Article 24, 1). Thus,
it seems that the directive has broadened the scope of this innovative instrument. However, Article 6(1)(b),
according to which “the investigative measure(s) indicated in the EIO can be ordered under the same conditions
in a similar domestic case”, seems to exclude such an interpretation. In addition, no reference is made to the
conditions of execution. This should not be seen as extraordinary for two reasons. Firstly, Article 10(2) excludes
the executing country from any control of the legality of non-coercive measures as well as of taking statements,
including those to be carried out by videoconference. Secondly, one might note that the execution of an EIO may
be refused if the use of videoconferencing methods in a particular case would be contrary to the fundamental
principles of the law of the executing State [Art. 24(2)]. The fact that videoconferencing may be rejected by the
executing state, however, poses problems of compatibility with the recent European Court caselaw, according
to which video-links are an extremely effective way of providing the defendant with an adequate opportunity to
confront witnesses in cross-border criminal proceedings. Therefore, we might wonder whether such a refusal
from a member state could automatically constitute a violation of Article 6(3)(d) of the European Convention
on Human Rights. See F. S, Tra semplificazione e ibridismo: insidie e aporie dell’Ordine europeo di indagine
penale, in Archivio penale, 2017, p. 687; Similarly, B. G, Assistenza giudiziaria in materia penale tra gli Stati
membri dell’Unione europea, in A. A. M (ed.), Cooperazione giudiziaria europea in materia penale, Giuffrè,
Milano, 2018, p.452.
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intervention often made it possible to reschedule hearing dates within a short period of
time, due to witnesses being unavailable. Several cases also concerned the participation
of the defence counsel in the witness examination, which was questionable under the
different views of states. In one case, for instance, the issuing authority requested that
the examination of the witness take place in the presence of the lawyer, in line with the
provisions of the lex fori. The executing authority stated, however, that the attendance of
a lawyer was contrary to the principles of its legal system and that it was, therefore, not
possible to comply with this request50.
Within this legal framework, we will further discuss whether the taking of evidence
overseas through the recourse to video-link connections meets the requirements set out
by Article 6(3)(d) ECHR and whether the solutions adopted by the 2000 Convention and
EIO directive are consistent with the right to confrontation.
4.2. Remote attendance through video-link in ECtHR case-law
Against this background, there is a strict link between confrontation rights and the right of
the accused to be personally involved in his own criminal trial. Both essential safeguards
require individuals charged with a criminal offence to be put in a fair condition not only
to be personally heard and set forth their arguments, but also to challenge the arguments
of their accusers.
Indeed, despite the advantages provided by videoconferencing, it is worth noting
that even the most advanced technologies conceived for video-links do not grant the
participants the same expectation of reality as physical attendance51. Currently, cameras
cannot perceive all movements and the screen cannot show several details that would be
visible if all the individuals involved were physically present in court52. Yet, the ECtHR
has highlighted that the right to be present in court does not always entail the right of
physical attendance and, thereby, remote participation does not necessarily constitute a
violation of the right to a fair trial53.
50 Report on Eurojust’s casework in the field of the European Investigation Order, 25 November 2020, available at https://
www.eurojust.europa.eu/it/publication/report-eurojust-casework-european-investigation-order.
51 See A F Online Hearings and the Right to Eective Defence in Digitalised Trials, in S R L B
W eds.), Investigating and Preventing Crime in the Digital Era. New Safeguards, New Rights, Springer, Cham,
2022, p.189 ff.; A G Avoiding virtual justice: video-teleconference testimony in federal criminal trials, in Catholic
University Law Review, 2007, p.702.
52 This situation could also negatively impact on the activities of the deliberating judge. Judgement must rely
upon the direct analysis of the parties’ behaviour and listening to their reasons, in order to evaluate non-
verbal communications (real-time facial expressions, body demeanour, voice inflections) and reliability of the
outcomes of examination.
53 Cf. ECtHR, judgment of 5 October 2006, Marcello Viola v. Italy, Application no. 45106/04, § 76: “Dans ces conditions, la
Cour estime que la participation du requérant aux audiences d’appel de la deuxième procédure pénale par vidéoconférence n’a
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However, transnational evidence-gathering procedures put different authorities in
contact with each other: consequently, the countries involved may well have different
levels of technological advancement. Against this background, one might stress that
such impairment may affect the quality of the images and sounds to the point of
compromising the examination irremediably. Hence, video and audio hearings must
always serve a legitimate aim and require for adequate arrangements to ensure the
full respect of the essence of the right to confrontation54. In this light, assuming that
this kind of participation is not, as such, incompatible with the notion of a fair trial
and public hearing, the Court emphasises the need to ensure the applicant a proper
way of following the hearing without technical obstacles55. Thus, recourse to the video
connection for the examination of witnesses has been deemed in line with the ECHR,
provided that its deployment can guarantee effective participation in the hearing.
Significantly, the European Commission for the Efficiency of Justice (CEPEJ) has recently
developed several guidelines that states and courts should follow to guarantee that the
use of videoconferencing in court proceedings does not infringe upon the participatory
rights enshrined in Article 6 ECHR56. In particular, the CEPEJ pointed out that during the
remote hearing the court should be able to continuously monitor the quality of the image
and sound of the video link, thus minimising technical incidents57, and should give the
participants the opportunity to test the audio and video quality in order to familiarise
themselves with the features of the videoconferencing platform58. Furthermore, both
the defendant and the other participants (including judges, witnesses and experts) must
be put in a condition to see and hear each other59. These are just some of the guidelines
pas placé la défense dans une position de désavantage substantiel par rapport aux autres parties au procès, et que l’intéressé
a eu la possibilité d’exercer les droits et facultés inhérents à la notion de procès équitable, telle que résultant de l’article 6 de la
Convention”. In this way, A F Online Hearings and the Right to Eective Defence in Digitalised Trials, cit., p.201.
54 This is mainly true if one considers that the EIO directive regulates only cross-border videoconferences, while
there is a lack of harmonisation of domestic regulation on videoconferences, thus resulting in a significant
difference between domestic and transnational videoconferencing rules. See L. B W,
Transnational Evidence towards the transposition of directive 2014/41 regarding the European investigation order in
Criminal Matters, in Eucrim, no. 2, 2015, p.50.
55 Cf. ECtHR, judgment of 2 November 2010, Sakhnovskiy v. Russia, Application no. 21272/03, § 98; I judgment of 9
November 2006, Golubev v. Russia, Application no. 26260/02.
56 European Commission for the Efficiency of Justice (CEPEJ), Guidelines on videoconferencing in judicial proceedings,
available at https://rm.coe.int/cepej-2021-4-guidelines-videoconference-en/1680a2c2f4, 2021, p.7: “The purpose
[of these guidelines] is to provide States with a framework aiming at eliminating any risk of violation of
the parties’ rights during remote hearings, in particular their right to be heard and to actively participate in
proceedings, and the right of defence”. See B G Forme e garanzie nel prisma dell’innovazione tecnologica. Alla
ricerca di un processo penale “virtuoso”, Wolters Kluwer, Milano, 2022, p.308 ff.
57 CEPEJ, Guidelines on videoconferencing in judicial proceedings, cit., no. 6, p.12.
58 CEPEJ, Guidelines on videoconferencing in judicial proceedings, cit., no. 5, pp. 11-12.
59 CEPEJ, Guidelines on videoconferencing in judicial proceedings, cit., no. 23, p.15.
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that the CEPEJ developed for a better use of video-link connections. The aim is to secure
that the digital transition of court proceedings is made in compliance with European
standards and, in particular, with the right to a fair trial60.
Within this framework, in the case Zhukovskiy v. Ukraine the ECtHR pointed out that
available modern technologies, such as video-links, could offer a more interactive way
of questioning witnesses abroad, while having them attend could entail excessive costs
and difficulties61. The Court recognised the compliance of remote examination with the
right to confrontation even when the declarant is sick, or it is necessary to protect victims
and witnesses. In the case Papadakis v. The Former Yugoslav Republic of Macedonia, the trial
court had ordered the public prosecutor to secure the attendance of the witness – who
was an undercover agent – or to establish a communication link for the examination62.
The prosecuting authority did not comply with the court’s order, thus failing to secure the
attendance of the witness either in presence or through video-link. Indeed, the undercover
agent was examined only in the presence of the trial judge and the public prosecutor.
The applicant, therefore, complained that his right to challenge the reliability of the
testimonial evidence against him was breached since “there had been no live streaming
of [the undercover agent] examination despite the fact that streaming media had been
available”63. According to the first step of the ‘Al-Khawaja test’, the Court argued that the
efforts of the authorities to guarantee the physical or virtual attendance of the witness were
unsatisfactory64. In order to determine whether the proceeding as a whole was conducted
fairly, the ECtHR also verified whether the opportunity given to the accused to submit
written questions to the witness ‘immediately after the examination’ could compensate
for the previous lack of direct confrontation. In particular, it is worth noting that the
60 CEPEJ, 2022-2025 CEPEJ Action plan: “Digitalisation for a better justice”, 2021, available at https://rm.coe.int/cepej-
2021-12-en-cepej-action-plan-2022-2025-digitalisation-justice/1680a4cf2c; I, Guidelines on electronic court filing
(e-filing) and digitalisation of courts, 2021, available at https://rm.coe.int/cepej-2021-15-en-e-filing-guidelines-
digitalisation-courts/1680a4cf87, p.5.
61 ECtHR, judgment of 3 March 2011, Zhukovskiy v. Ukraine, Application no. 31240/03, § 45. See also M D
La formazione digitale delle prove dichiarative, Giappichelli, Torino, 2012, p.133; M B La videoconferenza
transnazionale nell’ordine europeo di indagine penale, in Rivista di diritto processuale, 2022, p.519; See L. B
W Transnational Criminal Proceedings, Witness Evidence and Confrontation: Lessons from the ECtHR’s Case-Law,
cit., p.137, who argued that “in the European context it would not at all be inappropriate to compel Member
States to include in their domestic legislation the provision that a witness is obliged to appear before the court
of another Member State when the distance to be travelled does not exceed certain limits; and that a witness is
in any event obliged to appear before the national court of his place of residence to testify, through a video link,
in the proceedings taking place in another Member State. There should be swift cooperation not only at the pre-
trial stage for gathering evidence, but also at the trial stage”.
62 See ECtHR, judgment of 26 February 2013, Papadakis v. The Former Yugoslav Republic of Macedonia, Application no.
50254/07, § 31.
63 ECtHR, Papadakis v. The Former Yugoslav Republic of Macedonia, cit., § 35.
64 ECtHR, Papadakis v. The Former Yugoslav Republic of Macedonia, cit., § 91.
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judicial authority gave the defence only one hour to read the transcript of the testimonial
evidence, to prepare a defence strategy, and to formulate the questions65. The adequacy of
this time-limit is questionable, since it does not enable the defence to gain familiarity with
the evidence. Indeed, like in the Solakov case, the acknowledgment of the opportunity to
prepare written questions was somewhat rhetorical66. Hence, the ECtHR found a violation
of Article 6 ECHR, since domestic authorities failed to provide the accused with sufficient
procedural safeguards which could offset the handicap faced by the defence.
The solutions adopted in Zhukovskiy and Papadakis raise the question of whether the
approach followed by the 2000 Convention and EIO directive is consistent with ECHR
law. Indeed, the fact that the remote examination of the witnesses is conducted directly
by or under the supervision of the sole competent authority of the trial country does not
necessarily grant the accused a proper opportunity of confrontation. This is especially
the case when the accused or his defence counsel can put further questions to the witness
only after he has been examined solely by the competent authority67. However, we have
seen that the EComHR and ECtHR have recognised a broad interpretation of the right
to confrontation, allowing for both direct and indirect confrontation. Therefore, the
solutions set out by the 2000 Convention and EIO directive seem to be in line with ECHR
law. Nonetheless, especially in the field of transnational criminal justice this approach
is questionable since indirect confrontation cannot be deemed equivalent to direct
confrontation, and therefore cannot be admitted in absolute terms.
5. Concluding remarks
The analysis carried out in this study has shown that the content of fundamental rights
is always the result of conflicting values. This is the case of the right to confrontation
in transnational criminal proceedings. Different understandings of this right across
Europe, difficulties of ensuring face-to-face confrontation, together with the absence of
coordinated rules on transnational evidence-gathering and the admissibility of evidence
at trial, have led the ECtHR to strike the balance between the necessity to prosecute
transnational criminal offences, on one hand, and the respect of defence rights, on the
other. From this viewpoint, it seems that the Court has engaged in a ‘race to the bottom’ in
the protection of the right to confrontation in order to enact efficient cooperation.
65 ECtHR, Papadakis v. The Former Yugoslav Republic of Macedonia, cit., § 94.
66 Regarding the Solakov case, see the critical remarks raised by S R Audi Alteram Partem in Criminal
Proceedings, cit., pp. 419-420.
67 S R Audi Alteram Partem in Criminal Proceedings, cit., p.420.
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This study also proves that innovative techniques which enable remote participation
in the hearing have gained a key role in the evaluation of the overall fairness of criminal
proceedings, especially in the field of transnational criminal justice. In several cases
characterised by the involvement of two countries in the taking of evidence, the ECtHR
recently stressed the need to verify whether the state in which the examination must be
carried out provided the accused with a proper opportunity of confrontation through the
recourse to video-link connections.
This approach is particularly meaningful for two main reasons. On one hand, the Court
seems to express a clear preference for an examination conducted via communication
links – where available – compared with the acknowledgment of the possibility for the
defence to formulate written questions to the witness abroad. On the other hand, this
solution amplifies the ‘extent of the procedural guarantees’ necessary in order for a trial
to be considered as a whole fair. The suitability of the counterbalancing factors aimed
at compensating for the lack of confrontation will depend on the weight of the untested
evidence: “the stronger that evidence, the more weight the counterbalancing factors will
have to carry for a positive ascertainment of the fairness of the domestic proceeding”68.
Nevertheless, it seems that this new approach implies a significant expansion of the
‘counterbalance test’ and, therefore, of the ECtHR’s decision-making. The Court, indeed,
takes into account the possibility of justifying the choice of the prosecuting authorities
to not establish a video-link – although available – by verifying whether other procedural
safeguards could compensate for this conduct. It is of no consequence that in the Papadakis
case the ECtHR found a violation of the Convention. The problem stands out in the Court’s
possibility to offset behaviours clearly not in line with Article 6 ECHR.
This holistic approach does not only give too much leeway to the countries involved
in transnational evidence-gathering procedures – which would be allowed to deny the
accused an effective opportunity of confrontation, relying on the possibility to compensate
for this later – but to the ECtHR itself, thus depriving the right to confrontation of its very
essence69.
68 ECtHR, Schatschaschwili v Germany, cit., § 116.
69 Judges Sajó and Karakaş pointed out that “in applying the holistic approach (now presented as ‘an overall
examination’) in order to determine the fairness of the trial, this Court has never stated that fairness can still be
achieved if one of the fundamental rights is deprived of its essence. With regard to the right to cross-examine
witnesses and the related but broader equality-of-arms principle, the Court has systematically and consistently
drawn a bright line, which it has never abandoned, in the form of the sole or decisive rule. Today this last line
of protection of the right to defence is being abandoned in the name of an overall examination of fairness”. See
ECtHR, Al-Khawaja and Tahery v. The United Kingdom, cit., Joint partly dissenting and partly concurring opinion of Judges
Sajóand Karakaş.
