You Can't Always Counterbalance What You Want

Abstract

The ECtHR seems to be rethinking about its leading role in our Continent, getting back to the old times, in which the Court was far more concerned with ensuring the fairness of single cases than favouring the building up of a fair supranational criminal justice system. In several cruxes of criminal procedure, in fact, the ECtHR overruled its previous jurisprudence, following specific, non-replicable and closely related-to- the-single-case reasons. This “new-old-fashioned” trend begun probably in 2011, with the well-known Al-Khawaja and Tahery v. U.K. judgment on the defence’s right to examine or have examined witnesses given in the case. In all the aforementioned judgments, the Court justified the departing from its previous decisions with a new theory – actually, not so new according to the reasoning of the ECtHR – based on the occurrence of specific “counterbalancing measures”. In other words, the overturning was justified observing that, in the specific national proceedings under scrutiny, the defendant was afforded a certain number of counterbalancing measures.

Keywords: criminal proceedings, procedural safeguards, European criminal law, European criminal justice, rights of the defence