HYA and Others : Reshaping participation at criminal trials in Europe

A. Spectators or participants? Giving substance to the suspects’ and accused persons’ right to be present at trial across Europe

One of the central issues that the CJEU had to deal with was whether Article 8(1) of the Directive encompasses the right to cross-examination and, more specifically, the right to examine or have examined a prosecution witness. The question is of the utmost importance, considering that the latter represents a specific aspect of fair trial rights, as was stressed oftentimes by the ECtHR. ²⁹ Yet, from a literal point of view, the aforementioned provision only mentions the right to be present at trial. Moreover, there is no other EU piece of legislation that covers such a topic.

Against this background, one could easily find that Article 8(1) of the Directive did not specifically address the right to examine witnesses or any other defence rights. Indeed, analysing the case law that formed around Article 8(1) of the Directive, one can notice that the majority of the cases revolved around specifically the right to be physically present at trial and the legality of proceedings in absentia. ³⁰ It stems from both a literal and contextual analysis of the Directive that the right to be present is nothing more than the prerogative to have the opportunity to be physically present at the hearings of that trial.

Nevertheless, the reasoning that the CJEU follows in the case HYA and Others is arguably astute and is clearly based on a teleological scrutiny of Article 8(1) of the Directive. To this end, the Court recalls a well-rooted jurisprudence of the ECtHR, which considers the right to be present at trial as the necessary means to fully exercise defence rights. ³¹

Interestingly, the ECtHR had previously been asked to rule on a similar, but opposite, issue. Indeed, the Convention is silent about the suspects’ or accused persons’ right to be present at trial. No reference to this prerogative is explicitly made in Article 6 ECHR. The first instance in which the ECtHR had to cope with this issue was in Colozza. ³² On that occasion, the Strasbourg Court affirmed that although it is not expressly mentioned in Article 6 ECHR, the latter's meaning and purpose show that a person charged with a criminal offence is entitled to take part in the hearing. ³³ The rationale for such findings was based on the assumption that a person cannot effectively exercise the rights acknowledged in Article 6(3) ECHR if he/she is not present during his/her own trial. Most importantly, the ECtHR has expressly linked the right to be present at trial to the right to effective participation, ³⁴ and, consequently, to other aspects of the right to a fair trial, namely the ones listed in Article 6(3) ECHR. ³⁵

Furthermore, it is worth mentioning that in the very first case in which the CJEU had to deal with Article 8(1) of the Directive, it affirmed that this provision not only includes the right to be physically present at trial but also encompasses the right to have one's case ‘heard’ – this is the first essential step for the accused to exercise their defence rights, including (but not limited to) the right to give evidence in their defence, hear the evidence presented against them, and examine and cross-examine witnesses. ³⁶

Therefore, the CJEU's attempt to trace the right to cross-examination back to Article 8(1) of the Directive does not represent a complete novum, nor can it be seen as an unreasonable standpoint. Conversely, it may symbolize a first step towards a more consistent approach between the two European courts for what concerns procedural rights in the context of criminal proceedings.

What is more, the present judgment marks the first instance in which the CJEU has significantly expanded the right enshrined in the Directive. ³⁷ Such an aspect of the ruling should not be underestimated. Indeed, it is true that HYA and Others addressed the issue of the right to examine witnesses, which specifically stems from Article 6(3)(d) ECHR. Yet, linking the right to be present with one of the rights of the defence in the material case, the Court has acknowledged de facto that Article 8(1) of the Directive covers and safeguards all defence rights that require the presence of the suspect or accused at trial. ³⁸ Indeed, the Court explicitly affirms that from the latter provision stems the right to participate effectively at trial and to exercise the rights of the defence. ³⁹ Such a conclusion can be supported by a contextual interpretation of the latter provision. Indeed, Article 9 of the Directive – which guarantees the right to a new trial to suspects and accused persons absent at trial in violation of the conditions set out in Article 8(2) – foresees that suspects and accused persons must be able to participate effectively at the new trial and to exercise the rights of defence. Hence, suspects and accused persons regularly present at the first trial shall be in the condition to participate effectively at such a trial and to exercise the rights of defence.

In doing so, the CJEU has based its standpoint mostly on European provisions – namely Articles 47 and 48 of the Charter – with little, if any, reference to the jurisprudence of the ECtHR. In other words, the Court is including other defence rights within the scope of Article 8(1) of the Directive, based on the fact that the latter's provisions respond directly to the requirements of the above-mentioned provisions of the Charter, ⁴⁰ which are the sole legal basis in EU law for the protection of defence rights that are not expressly recognized in secondary legislation.

B. Reasserting the importance of the ‘sole or decisive rule’ within the EU legal framework?

Besides the ‘Charter-based’ approach in assessing the extent to which the right to be present at trial may embody, in EU law, the right of suspects and accused persons to examine and have examined witnesses, ⁴¹ it is apparent that the essence of HYA and Others can be summarized into two seemingly straightforward questions. Firstly, may someone be convicted solely on the basis of decisive witnesses who have not been subject to cross-examination before the judge at trial? Secondly, should that answer be positive, does this comply with the right to a fair trial, as enshrined in Articles 47 and 48 of the Charter, read in the light of Article 6 ECHR?

Against this background, it is worth recalling that the CJEU set forth that Article 8(1) of the Directive prevents a domestic court from basing its ruling on the reading of a witness statement given at the pre-trial stage of the proceedings without the accused person having had an opportunity to cross-examine that witness, unless: (i) there is a serious ground for the non-appearance of the witness à charge; (ii) such witness does not constitute the ‘sole or decisive’ ground for the conviction; and (iii) there were sufficient counterbalancing factors which may compensate the handicaps suffered by the accused person and his/her lawyer as a result of the admission of that witness at trial. ⁴² Whereas it is not expressly laid down, the Court suggested that the analysis of the aforementioned grounds will be carried out chronologically, from the first to the third situation mentioned therein. ⁴³ As is apparent from the wording, however, every circumstance holds an autonomous characterization – should one be lacking, the domestic court cannot base its decision on the untested witness.

Not surprisingly, the Luxembourg Court carved these caveats out of the relevant ECtHR's case law on the right to cross-examination and identified several useful principles to answer the Bulgarian court. This aspect of HYA and Others is to be welcomed, since it depicts, once again, that the judicial dialogue between the two European courts can play a pivotal role in enhancing the effectiveness of fundamental rights, especially in the context of criminal proceedings. ⁴⁴

Nevertheless, a deeper look into the ECHR legal framework reveals that, with the present judgment, the CJEU proved to render itself independent from the ECtHR, increasing procedural guarantees vis-à-vis suspects and accused persons and, finally, as will be explained, avoiding the possibility of convicting individuals on the basis of sole or decisive untested evidence. Essentially, while the CJEU seemingly aimed at following the ECtHR's case law on the right to cross-examination, the philosophy standing behind HYA and Others is given best expression by an exhortation coming from AG Pikamäe in a different case, and which is worth quoting at some length:

It is apparent therefore that the Court of Justice has power to interpret the provisions of the Charter autonomously, and that it is those provisions alone that apply in the sphere of EU law. The Court can therefore leave aside the case law of the European Court of Human Rights and examine the questions referred in the light of the Charter, provided its interpretation of the rights it contains that are similar in content to those in the ECHR leads to a higher level of protection than that guaranteed by the ECHR. ⁴⁵

As will be argued, this evolutive approach is probably the most appropriate perspective to be backed on the right to cross-examination. But how broad was the misalignment between the EU and ECHR legal orders on the issue? And to what extent did the CJEU manage to develop its own ‘test’ in this field?

From a theoretical level, within the Strasbourg's legal framework, all evidence is supposed to be produced before the judge, in the context of a public hearing and in the presence of the accused. ⁴⁶ This might be deemed the minimum content of the right to cross-examination enshrined in Article 6(3)(d) ECHR and, in turn, the minimum content of the same prerogative as per Article 48(2) of the Charter. ⁴⁷ Still, the ECtHR has repeatedly stated that the right to confrontation is not absolute, with some circumstances being capable of reliving domestic authorities to provide the accused person with that guarantee. ⁴⁸ Nonetheless, in these conditions, ‘the rights of the defence’ shall be complied with. ⁴⁹

In other words, Article 6(3)(d) ECHR does not preclude per se the fact that a defendant might be convicted on the basis of an untested witness’ statement if there are compelling reasons for the latter's absence. Trials can still be fair, provided that the individual concerned had an effective occasion to challenge and question the witness à charge, even ‘at a later stage of the proceedings’. ⁵⁰ Should this opportunity not be ensured, the ECtHR made it clear that, in any case, according to the ‘sole or decisive rule’, ⁵¹ a conviction cannot be based ‘solely’ or ‘to a decisive degree’ on untested witnesses’ statements, which the accused person had not the opportunity to challenge at any stage of the proceedings. ⁵² Conversely, where the testimony at stake does not hold a decisive character per se, it can also be employed without a previous cross-examination. Such a line of reasoning, albeit questionable from a literal standpoint, ⁵³ could be interpreted as a compromise, since the ECtHR appears to have accepted that only procedural violations that significantly affect the defendant's ability to obtain a fair trial do not comply with Article 6 of the ECHR. ⁵⁴

The concise – although outdated – portrait depicted above reveals certain similarities with the findings of the CJEU in the present case. Indeed, the latter similarly excluded the use of ‘sole or decisive’ untested evidence in criminal proceedings. ⁵⁵ Additionally, the Court of Luxembourg stressed the importance of establishing serious grounds for the non-appearance of the witness. Failure to do so shall prevent national authorities from admitting and employing the evidence concerned, in light of Articles 47(2) and 48(2) of the Charter, since now, one cannot but see a fil rouge between the two European courts’ approaches.

Still, as anticipated, the ECtHR ‘overruled’ its own approach in the landmark Al-Khawaja judgment. ⁵⁶ As for what is relevant here, the ‘sole or decisive rule’, which already was an exception to the (minimum) right to cross-examination, lost its absolute characterization. Remarkably, the ECtHR allowed for a derogation of that rule – crucial untested witnesses may form the basis for a conviction, provided that the defendant is offered ‘counterbalancing factors’ (including the existence of ‘strong procedural safeguards’) and the proceedings are subjected to the ‘most searching scrutiny’. ⁵⁷ This reasoning was developed by advocating for a thorough evaluation of the relevant proceedings ‘as a whole’.

Whereas some scholars have struggled to find a rationale in this U-turn, ⁵⁸ it has been rightly maintained that the ‘overall examination’ criterion is deeply entrenched in the Court's holistic approach, a stance it has embraced since the commencement of its activity. ⁵⁹ Among other areas, this approach has been widely followed in cases concerning the right to legal assistance, ⁶⁰ starting with the ‘dramatic shift’ ⁶¹ inaugurated with the landmark Ibrahim and Others judgment, ⁶² which marked a notable departure from the settled jurisprudence. ⁶³

Hence, the line of reasoning developed in Al-Khawaja ought not to be interpreted as an unforeseen overruling of prior case law; instead, it should be construed as a manifestation of the ECtHR's deferential stance towards national judiciaries and domestic legal traditions. ⁶⁴ Arguably, this underscores the rationale behind the increasing application of the overall examination criterion, a practice that nevertheless raises apprehensions concerning its potential adverse repercussions. These concerns extend not only to the procedural rights of the individuals implicated in the case under consideration but also pertain to the construction of a European criminal justice framework. In fact, the more fragmented the ECtHR's case law becomes, the less coherent the European criminal justice system is likely to be, given that EU law extensively draws inspiration from ECtHR case law in shaping the scope and meaning of procedural rights.

In Al-Khawaja these concerns are rather evident, as it may be questionable whether such a blurred approach to the right to cross-examination might be justified even when the untried evidence can lead, autonomously, to a conviction. What is more, in follow-up judgments, ⁶⁵ the ECtHR strengthened this position, going beyond a pure formalistic perspective, stressing that: (i) the lack of good reasons for the non-attendance of a witness does not lead, as such, to a breach of Article 6 ECHR; (ii) the existence of sufficient counterbalancing factors shall be assessed even when the evidence at stake might not be decisive, or there is uncertainty about its cruciality in the material case. ⁶⁶

Against this background, ‘everything is now negotiable’, as was critically observed by Judge Pinto de Albuquerque, and ‘even evidence banned in the Middle Ages, such as the statement of a dying person, can still be used’. ⁶⁷

Still, if our reading is correct, HYA and Others took a diverse pathway. In a nutshell, albeit not lucidly explained in the motivation, the CJEU proves to welcome the stance of those who argued that the concept of fair trial is inextricably linked to the right to question decisive witnesses and, accordingly, the accused person shall be acquitted, in any case, should the basis of his/her conviction be constituted by a piece of untested decisive evidence. ⁶⁸ In addition, the viewpoint of the present judgment could be in line with those who stressed that the ‘sole or decisive rule’ provided a ‘bright line’, which, after Al-Khawaja, has been questionably nuanced, thus hindering the ‘standard of precision and reliability expected of legal rule’. ⁶⁹ Excluding, in any case, sole or decisive untested witnesses from the materials which can form the basis for a conviction, the CJEU turned back the clock of fair trial rights to 2011, before Al-Khawaja, where the employment of such evidence was found to restrict the rights of the defence to an extent so as to render that trial incompatible with the guarantees provided by Article 6 ECHR. ⁷⁰ Indeed, certain scholars had already anticipated (and advocated for) such a development, accurately observing that the pertinent EU legal framework (e.g. the Directive) does not encompass any allusion to the concept of ‘overall fairness’, nor does it address potential counterbalancing elements that could remedy a violation of fair trial rights. ⁷¹ Nonetheless, this perspective is not only correct in a strictly literal sense. Deviating from the ECtHR's case law illustrates the intent of the CJEU to enhance the substance of fair trial rights through a self-sufficient and autonomous construal of the ‘sole or decisive rule’. Ultimately, this approach amplifies the safeguards extended to suspects or accused persons. The rationale articulated in HYA and Others thus seems to emphasize the proactive capacity of the CJEU to establish elevated benchmarks for the procedural rights of suspects, surpassing those established by the ECtHR.