HYA and Others: Reshaping participation at criminal trials in Europe

The recent decision of the Court of Justice of the European Union in HYA and Others has a significant impact on the use of untested witness statements in criminal proceedings. The case concerned the right to examine witnesses, which is protected under 6(3)(d) of the European Convention on Human Rights. The CJEU established a three-step test to determine whether the use of untested evidence violates the right to a fair trial and ruled out the use of ‘sole or decisive’ untested evidence in criminal proceedings. The Court also held that the right to examine witnesses is a fundamental right in criminal proceedings and falls within the scope of Article 8(1) of Directive 2016/343. The HYA and Others judgment sets a higher standard than that guaranteed by the ECtHR, preventing the use of sole or decisive witnesses in reaching a final conviction decision. Finally, the judgment extends the scope of defence rights in EU law and enhances the effectiveness of fundamental rights in criminal proceedings.