Strasbourg Observers

Murtazaliyeva v. Russia: on the examination of witnesses and the “corrosive expansion” of the overall fairness test

January 25, 2019

On 18 December, the Grand Chamber of the European Court of Human Rights delivered its judgment in the case of Murtazaliyeva v. Russia, finding no violation of the right to a fair trial in a case concerning the conviction of a Chechen woman for terrorist offences.  The most significant aspect of the judgment concerns the applicant’s complaint that the domestic courts’ refusal to call two defence witnesses violated Article 6 § 1 and § 3 (d) of the Convention.[1] As the Strasbourg case law was underdeveloped in this area, this case provided an important opportunity for the Court to clarify Convention standards.  Unfortunately, in doing so, the Grand Chamber yet again expanded the scope of the “overall fairness of the proceedings” test under Article 6 § 1, which now also serves as the final benchmark in this area. In this blog post, it will be argued that the increasing recourse by the Court to this test risks depriving defendants of meaningful procedural protection.


Facts and judgment

In January 2005, the applicant was sentenced to nine years imprisonment for terrorist offences. The conviction was upheld by the Supreme Court in March 2005, which, however, reduced her sentence to eight and a half years. In Strasbourg, she complains that her right to a fair trial had been violated on multiple grounds, the most important one being the failure to call two witnesses who had been present during a police search of her handbag, which had resulted in the finding of two packages that were identified as containing explosives. The applicant wanted to rely on their testimony to support her claim that the explosives had been planted in her handbag prior to the search.

The Court considers it necessary to first clarify its standards on the right to examine witnesses on behalf of the defence, which had not been genuinely updated since the 2003 case of Perna v. Italy. Based on a discussion of the follow-up cases to Perna, the Court formulated the following three-pronged test (§ 158):

  1. Whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation?2. Whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial?3. Whether the domestic courts’ decision not to examine a witness undermined the overall fairness of the proceedings?

As far as the first test is concerned, in Perna, the Court placed the burden on the applicant to “support his request by explaining why it is important for the witnesses concerned to be heard and their evidence must be necessary for the establishment of the truth” (§ 29). In the present case, the Court however lowers the burden placed on the defendant, by not confining the right to “motion of the defence to call witnesses capable of influencing the outcome of a trial” but also to “other witnesses who can reasonably be expected to strengthen the position of the defence” (§ 160).

With regard to the second element of the test, the Court “requires the domestic courts to consider the relevance of the testimony sought by the defence and obliges them to provide sufficient reasons for their decisions” (§ 162). While “admissibility of evidence is primarily a matter for regulation by national law and the domestic courts are best placed to decide on the issue” (§ 163), they must nonetheless consider the circumstances of a given case and their reasoning must be “commensurate, i.e. adequate in terms of scope and level of detail, with the reasons advanced by the defence” (§ 164). In other words, “the stronger and weightier the arguments advanced by the defence, the closer must be the scrutiny and the more convincing must be the reasoning of the domestic courts if they refuse the defence’s request to examine a witness” (§ 166).

Finally, the Court considers it necessary to use “the overall fairness of the proceedings” as “the final benchmark for the assessment of the proceedings” in order to avoid that the three-pronged test becomes “excessively rigid or mechanical in its application” (§ 168). According to the Court,

While the conclusions under the first two steps of that test would generally be strongly indicative as to whether the proceedings were fair, it cannot be excluded that in certain, admittedly exceptional, cases considerations of fairness might warrant the opposite conclusion. (§ 168)

Applying these principles to the facts of the case, the Court first finds that “the defence gave little more than a brief indication of the relevance of B. and K.’s [the two witnesses] potential testimony”, but “did not provide any particular factual or legal arguments and did not elaborate in concrete terms on how their testimony could reasonably be expected to strengthen the case for the defence” (§ 171). Under the second prong, it accepts that the Supreme Court “reasoned that the personal appearance of B. and K. had not been necessary since the applicant herself had claimed that the explosives had been planted in her bag before she was searched” (§ 172). Finally, the Court holds under the third prong that the refusal to examine the witnesses did not undermine the overall fairness of the proceedings, for the following reasons:

the applicant, assisted by two professional lawyers, was able to conduct her defence effectively, confront and examine witnesses testifying against her, comment without hindrance on the incriminating evidence, adduce evidence she considered relevant and to present her account of the events to the domestic courts. Her conviction for preparing an act of terrorism and inciting others to commit such an act was based on a considerable body of evidence against her including the statements of several prosecution witnesses, the material (an extremist note and photographs) seized from the applicant’s flat, forensic examination reports and the transcripts of the police surveillance videotapes. (§ 175)

For these reasons, the Court finds that there has not been a violation of the applicant’s rights under Article 6 § 1 and § 3 (d) ECHR.



The first problematic aspect of this judgment is the burden it continues to place on the defendant to justify the necessity of hearing a witness (the first prong of the three-pronged test). In the abstract, the Court does seem to have lowered the burden in comparison with the Perna judgment. However, when concretely applying the new standard, the burden imposed in practice remains heavy – in particular the need to provide arguments on how the testimony of a witness “could reasonably be expected to strengthen the case for the defence”. In his dissenting opinion, Judge Pinto de Albuquerque describes this in terms of an “at first sight […] more relaxed, liberal, criterion” that is applied by the majority “in a very illiberal way.” Moreover, Judge Bošnjak, in his partly dissenting opinion, raises concerns about the risks involved in a too restrictive application of the first prong, warning that when applying it “one should bear in mind that it is often impossible to speculate in advance as to how a witness will testify and how that testimony may affect the court’s assessment of a relevant fact.” Furthermore, according to Judge Bošnjak, this burden placed on the defendant may sit ill with the principle that “the defence must be granted a considerable amount of autonomy in determining its tactics, which includes the choice of facts that it wishes to argue and the manner in which it wishes to argue them.” In Judge Bošnjak’s views, the first prong should therefore be applied “in a reasonably liberal way”.

More problematic from the viewpoint of the broader Article 6 case law, is the fact that this is yet another area in which the Court applies the “overall fairness of the proceedings” test as what it labels “the final benchmark for the assessment of the proceedings”. Increasingly, the Court refuses to draw bright lines where the rights of the defence are concerned, instead favouring the flexibility of the “overall fairness” test. In Al-Khawaja and Tahery v. the United Kingdom (2011), the Court for instance abandoned the “bright line” character of the “sole or decisive rule” when examining the admissibility of hearsay evidence. Instead of prohibiting domestic courts from convicting a defendant based solely or decisively on statements by absent witnesses, the Court now allows for the possibility of “sufficient counterbalancing factors” that nonetheless guarantee the overall fairness of the proceedings. In Ibrahim and Others v. the United Kingdom (2016), the Court did the same thing with regard to the Salduz rule. In Salduz v. Turkey (2008), the Court held that “as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right”. In Ibrahim and Others, the Court however held that the lack of “compelling reasons” for restricting access to legal advice does not suffice to establish a violation of Article 6, as it is still necessary to “examine the impact of the restriction on the overall fairness of the proceedings and decide whether the proceedings as a whole were fair.” In Beuze v. Belgium (2018), the Court further expanded this approach by applying it not only to cases like Ibrahim and Others, concerning case-specific decisions to restrict access to a lawyer, but also to cases involving systemic restrictions stemming from legislation.

The “overall fairness” test is problematic for a number of reasons. Firstly, as held by Judge Pinto de Albuquerque in his dissenting opinion, it is “inherently subjective and therefore extremely malleable.” In the absence of a yardstick to determine whether proceedings were “overall fair”, the determination of this question risks collapsing into an “I know it when I see it” standard. Compliance with fundamental procedural rights should not be assessed by the exercise of a judicial gut feeling. A related risk, pointed out by Judge Bošnjak in his dissenting opinion, lies in the fact that the determination of the fairness of the proceedings may be tainted by how judges assess the fairness of the outcome. In this regard, Judge Bošnjak considered it inappropriate for the majority to take into account whether the available evidence was sufficient for the applicant’s conviction. As held by Judge Pinto de Albuquerque, “a procedure is not fair because the guilty were convicted or the innocent acquitted.” This is not simply, as Judge Pinto de Albuquerque alleges, because “there is no way to ascertain legally whether the guilty were guilty apart from the procedure itself.” Due process should rather be considered as a value in and of itself – not only for the innocent but also for the guilty – and should be treated accordingly, regardless of the extent to which it contributes to a more accurate establishment of the legal truth in a particular case.

Secondly, the “overall fairness” test leads to uncertainty which provides a lack of guidance to domestic courts. In the case of Ibrahim and Others v. the United Kingdom, the Court did list some criteria to indicate how it will conduct this test (§ 274). However, these criteria are so broad that they constitute, in Judge Pinto de Albuquerque’s words, “a map of the size of the territory: apparently accurate, but in reality useless in terms of providing any guidance.” This already complicates the hindsight assessment by the Court, as the determination of whether a reduction in safeguards at one stage of the proceedings can be counterbalanced by the correct conduct of the rest of the proceedings really amounts to a comparison of apples and oranges. As pointed out by Judge Pinto de Albuquerque, matters are however exacerbated as far as the position of domestic authorities and courts is concerned, as they “cannot know at any given point of time how a given set of proceedings will continue in the future, since different bodies are charged with different tasks at different moments.”

Thirdly, the “overall fairness” test does not offer real safeguards. A procedural safeguard, like the right to have a witness questioned, is not a real safeguard if you can only determine in hindsight whether compliance was required or not. Even assuming that a procedural unfairness may be counterbalanced by the correct conduct of the rest of the proceedings, you should not simply trust domestic bodies to get this assessment right. Rather than assessing the value of procedural safeguards on a case by case basis, it should be acknowledged that their function is exactly to provide structural protection against procedural unfairness. Applying them as “a blunt and indiscriminate instrument” (Al-Khawaja and Tahery v. the United Kingdom, § 146) is the best incentive to encourage domestic bodies to take these safeguards sufficiently seriously, which in turn contributes to the structural prevention of unfair criminal convictions.

In any event, is it really overly formalistic to, at all times, simply expect of a domestic court to examine a witness at trial, unless it can provide “sufficient reasons” to refuse “a sufficiently reasoned and relevant” request in this sense? In this respect, it is worthwhile to heed the warning from the dissenting opinion of Judges Sajó and Karakaş in the Al-Khawaja and Tahery judgment:

Populism, the police and the prosecuting authorities subject courts all around the world to pressure to disregard fundamental safeguards of criminal procedure. Sometimes the demands are legitimately grounded in practical difficulties, but this is not a good enough reason to disregard the protection of the rights of the accused, which are decisive for a fair trial and the fair administration of justice.

Seven years after Al-Khawaja and Tahery, the Grand Chamber judgment in Murtazaliyeva unfortunately exemplifies yet another step of what Judge Pinto de Albuquerque now describes as “the corrosive expansion of the overall fairness test”. Under the guise of scrutinizing the overall fairness of the proceedings, the Court hereby risks depriving the rights of the defence, which are explicitly spelled out in Article 6 § 3 ECHR, of their very essence.


[1] Article 6 § 3 (d) ECHR reads: “3. Everyone charged with a criminal offence has the following minimum rights: […] (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.

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