The Research on Using Standards for Protection of Confrontation to Replace the Hearsay RuleUse the Development of European Law as Example
Date Issued
2009
Date
2009
Author(s)
Chen, Yu-Hsin
Abstract
It is the basic international human right that the accused has the right to confront the witness against him, which is regulated in European Convention for the Protection of Human Rights and Fundamental Freedoms Article 6-3-d and International Covenant on Civil and Political Rights 14-3-f. However, the norms of the right to confront witnesses in every country are varying in degrees, whether a transnational standard of the protection and limitation of the right of confrontation exists to comply with? There are a large number of judgments of European Court of Human Rights(ECHR) regarding to the right of confrontation and ECHR integrats different legal systems in Europe between the different norms, then also establishes the European standard of the right of confrontation. This essay analyses the case law of ECHR and the European Commission of Human Rights(EComHR), then generalizes a transnational standard of the protection of the right to confront witnesses. Moreover, it uses the United Kingdom and Germany as examples to show how this standard affects the operation of the British rule of hearsay, as well as the right to confront witnesses in investigation stage and the limits of using witness protection measures in Germany.s to native law, the operation of the hearsay rule in Taiwan arises several problems. Due to a lack of standard of exceptions to the right of confrontation, the Supreme Court thinks exceptions of the hearsay rule are equal to exceptions of the right of confrontation, however, simply the credibility and necessity of the testimony, which are the elements of the exception of hearsay rule(§§159-1~159-3), are not enough to become the standard of exception to the right of confrontation. Besides, in what situation could be considered that the accused waives his right to confront witnesses? The application of §159-5 results in not only reducing the obligations of the court to summon witnesses, but also providing not enough protection to the accused who has no assistance of counsel. In addition, when the right of the witness conflicts with the right of the accused, the Supreme Court does not examine whether the relevant and sufficient reason to restrict confrontation exists or not, as well as what witness protection measures should be given priority. In response to these issues, this essay refers to the European standard of the right of confrontation established by ECHR and considers that we should use the standard of the protection of the right to confront witnesses to replace exceptions of the hearsay rule in practice for avoiding the violation of accused’s right to confront witnesses.
Subjects
Confrontation
Examine witness
Hearsay rule
European Court of Human Rights
Right to fair trial
Witness protection
Anonymity
SDGs
Type
thesis
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