전문법칙의 예외와 반대신문권 및 인권 - 유럽인권재판소 Al-Khawaja and Tahery v. UK판결과 관련하여 - = Hearsay Rule, Right to Cross-Examination, and Human Rights: Concerning the European Court of Human Rights Judgment in Al-Khawaja and Tahery v. UK

다국어 초록 (Multilingual Abstract)

The hearsay rule is a core principle of modern criminal procedure, securing the defendant’s right to cross-examination and the right to a fair trial. However, applying the rule without exception may impede the discovery of substantive truth, necessitating exceptions when witnesses are unavailable due to circumstances like death or fear. National legal systems, therefore, implement counterbalancing factors to protect the defendant when hearsay evidence is admitted.
This paper analyzes the landmark judgment of the European Court of Human Rights in Al-Khawaja and Tahery v. UK, which examined whether a conviction based on the statements of an absent witness-whom the defendant could not confront-violates the right to a fair trial guaranteed by the European Convention on Human Rights Article 6. The initial ECtHR Chamber strictly applied the established jurisprudence known as the “sole or decisive evidence test,” concluding that a violation had occurred in both cases. In a important moment of ‘judicial dialogue’, the UK Supreme Court, through its R v. Horncastle and Others judgment, criticized the ECtHR Chamber’s principle as overly rigid and failing to acknowledge the procedural safeguards embedded in UK law, urging the ECtHR to reconsider.
Responding to this challenge, the ECtHR Grand Chamber, in its 2011 decision, modified the existing legal principle. The Grand Chamber clarified that the “sole or decisive evidence test” is not an absolute rule of exclusion; instead, while the importance of absent evidence remains a “very important factor,” courts must always assess the “overall fairness of the proceedings”. The Grand Chamber ruled that a conviction based on decisive hearsay evidence can be justified, provided there are sufficient counterbalancing factors and strong procedural guarantees to ensure the reliability of the evidence. Applying this modified standard, the Grand Chamber found no ECHR violation in the Al-Khawaja case but upheld the finding of a violation in the Tahery case.
This evolution in ECtHR jurisprudence offers critical comparative legal insights for the interpretation and application of Article 314 of the Korean Criminal Procedure Law (the exception for unavailable witnesses based on ‘special reliability’). While the Korean Supreme Court has traditionally maintained a strict exclusionist approach, the ECtHR Grand Chamber's flexible standard suggests that Korean courts should consider allowing decisive hearsay evidence, even in the absence of cross-examination, if it has been subjected to the most searching scrutiny and if sufficient procedural safeguards compensating for the defense disadvantage are in place.