ABSTRACT
One of the minimum rights under Article 6, the right to cross-examine prosecution witnesses has given rise to one of the most established rules of evidence the Court has developed, the so-called sole or decisive rule. This rule has also seen significant changes over the years. Initially, the rule was quite formal and required that the accused would always have an opportunity to question key prosecution witnesses. The Court also found violations of Article 6 if it was not shown that the domestic authorities had a good reason for the use of recorded statements in trial. After the grand chamber judgment in Al-Khawaja, the rule has become more flexible and substantive. Nowadays the use of untested evidence may be allowed if its reliability can be controlled sufficiently given its importance in the case. Although they remain important factors in the current three-part test, the weight of the untested evidence or the existence of a good reason are no longer determinative on their own. Instead, greater weight must be given to whether there have been sufficient counterbalances in place to protect the overall fairness of a trial.
