ÖZTÜRK V GERMANY CASE SUMMARY Mr. Öztürk was given an administrative fine for a traffic offence (“regulatory offence”), which he appealed. In the national court, he exercised his right to an interpreter. After the proceedings, the court demanded Öztürk pay the interpreter’s fees. Mr Öztürk applied to the ECtHR. RELEVANT ARTICLE(S) Art. 6 Par. 3 under e) ECHR: Everyone charged with a criminal offence has the following minimum rights: ... (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court." (c. 45) QUESTION(S) OF LAW Was a “regulatory offence” committed by the applicant of the same value as a “criminal offence” within the scope of Art. 6 ECHR? (c. 50) CONCEPTS(S) Establishing a criminal charge: As regards the autonomous notion of “criminal”, the Convention is not opposed to the moves towards “decriminalisation” among the Contracting States. However, offences classified as “regulatory” following decriminalisation may come under the autonomous notion of a “criminal” offence. Leaving States the discretion to exclude these offences might lead to results incompatible with the object and purpose of the Convention (c. 49) What is a charge?: “Charge”, for the purposes of Article 6 (art. 6), may in general be defined as "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence", although "it may in some instances take the form of other measures which carry the implication of such an allegation and which likewise substantially affect the situation 146 of the suspect" (c. 55) CRITERIA There are three criteria that must be met, keeping in mind the ordinary meaning of words of the Convention, purpose of Art. 6, and national law of the States (c. 50): 3 1. Firstly, the Court must determine whether the offence committed by the applicant was stated in the domestic criminal law of a State 2. Secondly, the ECtHR has to check the “nature of the offence” - whether it should be considered criminal, or not a. Open norm b. Primarily retributive goal 3. Thirdly, the Court must assess the “nature and degree of the severity of the penalty” (the harsher the punishment, the more likely the offence is to be criminal) a. To punish and deter JUDGMENT Violation (c. 58), as a regulatory offence, due to its nature, should be given the same scope of consideration as a criminal charge. Hence, by asking the applicant to pay the fees, the state failed to provide him with a “free assistance of an interpreter” and breached Art. 6 Par. 3 under e) 4 VENDITTELLI V ITALY CASE SUMMARY On 19 May 1986, Mr Vendittelli’s flat was sealed by the police. After many applications for release and two adjournments requested by the applicant, the flat was finally returned to him on 30 October 1990. The applicant claimed that the length of the legal proceedings was “unreasonable” RELEVANT ARTICLE(S) Art. 6 Par. 1 ECHR: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” (c. 20) QUESTION(S) OF LAW Was the length of the proceedings reasonable within the scope of Art. 6 ECHR? (c. 22) TYPE OF TIME The right to have your case tried within a reasonable time CONCEPTS(S) Period in question: The period to be taken into consideration begins on the day on which a person is charged. Article 6 § 1, furthermore, indicates as the final point the judgment determining the charge; this may be a decision given by an appeal court when such a court pronounces upon the merits of the charge (Neumeister v Austria). The complexity of a case: it may stem, for example, from the number of charges, the number of people involved in the proceedings, such as defendants and witnesses, or the international dimension of the case. A case may also be extremely complex where the suspicions relate to “white-collar” crime, that is to say, large-scale fraud involving several companies and complex transactions designed to escape the scrutiny of the investigative authorities, and requiring substantial accounting and financial expertise. Similarly, a case concerning the charges of international money laundering, which involved investigations in several countries, was considered to be particularly complex. 5 The applicant’s conduct: Article 6 does not require applicants to cooperate actively with the judicial authorities. Nor can they be blamed for making full use of the remedies available to them under domestic law. However, their conduct constitutes an objective fact which cannot be attributed to the respondent State and which must be taken into account in determining whether or not the length of the proceedings exceeds what is reasonable. The conduct of the relevant authorities: Article 6 § 1 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements. What is at stake: For example, where a person is held in pre-trial detention, this is a factor to be considered in assessing whether the charge has been determined within a reasonable time. However, the very fact that the applicant is a public figure and that the case attracted significant media attention does not, in itself, warrant a ruling that the case merited priority treatment. CRITERIA 1. Establishing the period in question (c. 21) 2. Assessing whether the time is reasonable a. Conduct of the applicant b. Complexity of the case c. Conduct of authorities d. Importance of what is at stake JUDGMENT No violation, as the applicant’s adjournments delayed the proceedings by a long time that allowed him to take advantage of a presidential amnesty (c. 27). Furthermore, since Vendittelli was present when the judgment was delivered in one of the lower courts, he could reasonably have been expected to obtain a copy of the judgment himself and draw up his grounds of appeal from that moment. 6 BROGAN AND OTHERS V UK CASE SUMMARY Four people in Northern Ireland, including Brogan, were arrested under suspicion of being parts of a terrorist group (IRA) and put in detention for a considerable amount of time before appearing before the judge for the first time. They first claimed that they were arrested on suspicion and that they were never charged or brought before the judge, in contrary to Art. 5 Par. 1 ECHR. Further, they complained that the time spent behind bars was too long, and did not fulfill the requirement of “prompt lines” under Art. 5 par. 3 ECHR. RELEVANT ARTICLE(S) Art. 5 Par. 1 under c) ECHR: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...." (c. 49) Art. 5 Par. 3 ECHR: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial." (c. 55) QUESTION(S) OF LAW 1. Art. 5 Par. 1 under c) ECHR: a. Were the applicants arrested on a “reasonable suspicion” (c. 50) b. Were the applicants arrested with the “purpose of bringing (them) before a competent legal authority? (c. 52) 2. Whether, having regard to the special features relied on by the Government, each applicant’s release can be considered as "prompt" for the purposes of Article 5 para. 3 (c. 60) TYPE OF TIME Time before seeing the judge for the first time 7 CONCEPTS 1. Art. 5 Par. 1 under c) ECHR: a. Purpose vs achievement: The existence of the purpose to bring a suspect before a court has to be considered independently of the achievement of that purpose. The standard imposed by Article 5 § 1 (c) does not presuppose that the police have sufficient evidence to bring charges at the time of arrest or while the applicant was in custody. The object of questioning during detention under subparagraph (c) of Article 5 § 1 is to further the criminal investigation by way of confirming or dispelling the concrete suspicion grounding the arrest 2. Art. 5 par. 3 ECHR: a. Maximum amount of time: Article 5 § 3 does not provide for any possible exceptions from the requirement that a person be brought promptly before a judge or other judicial officer after his or her arrest or detention, not even on grounds of prior judicial involvement. Any period in excess of four days is prima facie too long b. Strict requirement: scope for flexibility in interpreting and applying the notion of "promptness" is very limited (c. 62) CRITERIA 1. Art. 5 par. 3 ECHR: a. Time before seeing the judge for the first time exceeding four days? JUDGMENT 1. No violation of Art. 5 Par. 1 under c) as a terrorist threat was a reasonable suspicion, and not bringing the applicants before the judge did not mean no such intent existed (c. 54) 2. Violation of Art. 5 Par. 3 as none of the four applicants was either brought before the judge in less than four days, nor released before that period lapsed. 8 LETELLIER V FRANCE CASE SUMMARY Mrs. Letellier’s ex-husband was killed in a drive-by by an assassin sent after him by the applicant. She was detained by the police on 8 July 1985. On 24 December 1985, the investigating judge ordered her release since she had sufficient reasons. However, she returned to prison on 22 January 1986 and remained there until 10 May 1988, despite filing many applications for release. The applicant claimed violation of Art. 5 Par. 3 ECHR and Art. 5 Par. 4 ECHR. RELEVANT ARTICLE(S) Art. 5 Par. 3 ECHR: "Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article, ... shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial." (c. 33) Art. 5 Par. 4 ECHR: "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful." (c. 54) QUESTION(S) OF LAW 1. Did the pre-trial detention of the applicant exceed “reasonable time” as protected under Art. 5 Par. 3 ECHR? 2. Was the prolongation of pretrial detention lawful? 3. Was the final decision regarding the applicant’s motion for release given “speedily” as protected in Art. 5 Par. 4 ECHR? CONCEPTS Period to be taken into consideration for “reasonableness”: In determining the length of detention pending trial under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day when the charge is determined, even if only by a court of first instance (c. 34) 9 Persistence: The persistence of a reasonable suspicion is a condition sine qua non for the validity of the continued detention. But when the national judicial authorities first examine, “promptly” after the arrest, whether to place the arrestee in pre-trial detention, that suspicion no longer suffices, and the authorities must also give other relevant and sufficient grounds to justify the detention (c. 35). The initial reasons for extension of pre-trial detention diminish over time. Danger of absconding: The danger of absconding cannot be gauged solely on the basis of the severity of the sentence risked. It must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify pre-trial detention (c. 43) Habeas corpus: Article 5 § 4 is the habeas corpus provision of the Convention. It provides detained persons with the right to actively seek a judicial review of their detention Person to be taken into consideration for “speediness”: The Court has taken as a starting point the moment that the application for release was made/proceedings were instituted. The relevant period comes to an end with the final determination of the legality of the applicant’s detention, including any appeal CRITERIA 1. Art. 5 a. b. c. 2. Art. 5 a. b. Par. 3 ECHR: Establishing the relevant time (c. 34) Reasonable suspicion is the conditio sine qua non for a pre-trial detention Establishing reasonableness (c. 36) i. Risk of pressure being brought to bear on the witness (c. 37-39) ii. Danger of absconding (c. 40-43) iii. Inadequacy of court supervision (c. 44-46) iv. Preservation of public order (c. 47-51) Par. 4 ECHR: Establishing the relevant time (c. 54) Establishing speediness i. Conduct of the applicant ii. Conduct of the state iii. Complexity of the case iv. What is at stake 10 JUDGMENT v. Specificities of the national system 1. Art. 5 Par. 3 ECHR: Violation, as the detention was no longer on reasonable and sufficient grounds (c. 52) 2. Art. 5 Par. 4 ECHR: No violation, as the length of the proceedings was connected with the large number of applications for release filed by the offender that were all assessed in the period from eight to twenty days, which the ECtHR assumes as sufficient (c. 54-57). 11 KHAN V UK CASE SUMMARY Mr Khan and his cousin were stopped and searched at an airport. On the cousin, the authorities found some drugs; none on the applicant. A few days later, Khan went to his friend’s house who was under police surveillance - unaware of that fact. During their conversation, Khan admitted to having taken part in drug smuggling with his cousin. The secretly recorded conversation was used in a trial against Khan. He alleged a breach of Art. 8 and 6 ECHR. RELEVANT ARTICLE(S) Art. 8 ECHR: “1. Everyone has the right to respect for his private ... life, ... and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Art. 6 Par. 1 ECHR: “In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ...” QUESTION(S) OF LAW 1. Art. 8 ECHR: a. Was there an interference in the right to private life under Art. 8 Par. 1 ECHR? b. Was the interference justified under Art. 8 Par. 2 ECHR? i. In accordance with the law? ii. Necessary in a democratic society? 2. Art. 6 Par. 1 ECHR: a. Did the use of evidence obtained in violation of Art. 8 ECHR as the sole ground for conviction violate the applicant’s right to a “fair hearing under” Art. 6 Par. 1 ECHR? 12 CONCEPTS Court’s involvement: While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law. It is not, therefore, the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair Court’s capabilities: The Court observed that it could not “exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the present kind may be admissible” and that it had only to ascertain whether the applicant's trial as a whole was fair. CRITERIA Art. 8 ECHR: 1. In accordance with the law a. Prescribed in domestic law b. Accessible c. Foreseeable Art. 6 Par. 1 ECHR: Whether the proceedings were, as a whole, fair (assessed jointly; not consecutive steps) 1. Examination of “unlawfulness” a. Whether the rights of the defence have been respected, including (but not limited to) i. Opportunity to challenge evidence ii. Quality of evidence iii. Circumstances in which evidence was obtained iv. Whether the evidence was of a decisive nature 2. Nature of the violation of another ECHR article (if applicable) JUDGMENT 1. Art. 8 ECHR: Violation, as “there existed no statutory system to regulate the use of covert listening devices” (c. 27) so the wiretapping was not in accordance with the law. The Court does not have to check whether the criterion of “necessary in a democratic society” was fulfilled, as already at that stage there was a violation 13 2. Art. 6 Par. 1 ECHR: No violation, as there was “generally nothing unlawful about a breach of privacy under English law,” and the applicant had ample opportunity to challenge the evidence. Hence, the proceedings were, as a whole, fair 14 NIEMIETZ V GERMANY CASE SUMMARY Mr. Niemietz’s law office was searched by the authorities who wanted to discover the identity of Klaus Wegner - a likely fictitious persona who sent a threatening, dishonouring letter to Judge Miosga presiding over an anti-church case. RELEVANT ARTICLE(S) Art. 8 ECHR: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." QUESTION(S) OF LAW 1. Did a search of a law office interfere with the right to “private life” and “home” under Art. 8 Par. 1 ECHR? 2. If so, was the interference justified under Art. 8 Par. 2 ECHR? a. In accordance with the law? b. Legitimate aim(s) as prescribed in the article? c. Necessary in a democratic society? i. Proportionate? CONCEPTS Private life: Private life is a broad concept incapable of exhaustive. Indeed, private life encompasses the right for an individual to form and develop relationships with other human beings, including relationships of a professional or business nature. It is, after all, in the course of their working lives that the majority of people have a significant opportunity of developing relationships with the outside world. Thus, especially in the case of a person exercising a liberal profession, his work in that context may form part and parcel of his life to such a degree that it becomes impossible to know in what capacity he is acting at a given moment of time. To deny the protection of Article 8 on the ground that 15 the measure complained of related only to professional activities could moreover lead to an inequality of treatment, in that such protection would remain available to a person whose professional and non-professional activities were so intermingled that there was no means of distinguishing between them. Home: The notion of “home” is an autonomous concept which does not depend on the classification under domestic law. The concept of “home” in Article 8 § 1 of the Convention embraces not only a private individual’s home but also a lawyer’s office or a law firm. Searches of the premises of a lawyer may breach legal professional privilege, which is the basis of the relationship of trust existing between a lawyer and his client. Consequently, such measures must be accompanied by “special procedural guarantees” and the lawyer must have access to a remedy affording “effective scrutiny” to contest them. Correspondence: The right to respect for “correspondence” within the meaning of Article 8 § 1 aims to protect the confidentiality of communications in a wide range of different situations. This concept obviously covers letters of a private or professional nature. It also covers lawyers’ written files. Correspondence between a lawyer and his or her client, whatever its purpose, is protected under Article 8 of the Convention, such protection being enhanced as far as confidentiality is concerned.. This is justified by the fact that lawyers are assigned a fun-damental role in a democratic society, that of defending litigants. The content of the documents intercepted is immaterial. Professional secrecy is “the basis of the relation-ship of confidence between lawyer and client” and any risk of impingement on it may have repercussions on the proper administration of justice, and hence on the rights guaranteed by Article 6 of the Convention CRITERIA 1. Applying the concepts of the words “home,” “private life,” and “correspondence,” was there an interference? 2. Was the interference legitimate? a. In accordance with the law? (+ criteria of Khan) i. Prescribed by domestic law? ii. Accessible? iii. Foreseeable? b. Falling under the scope of one of the goals of Art. 8? c. Necessary in a democratic society? i. Proportionate? 16 JUDGMENT 1. Because of the concepts of the words “home,” “private life,” and “correspondence,” the Court ruled that there was interference with Art. 8 Par. 1 ECHR 2. The interference was not legitimate a. It was in accordance with the law i. The search was lawful in terms of Article 103 of the Code of Criminal Procedure ii. This is a public law act, so it it accessible iii. This is a public law act, so it it foreseeable b. It did have a legitimate aim (“the prevention of crime and the protection of the rights of others”) c. However, it was not necessary in a democratic society i. Although the Court agrees that a search is usually relevant to the legitimate aim pursued in cases like this one, it finds that such a measure was not proportionate to the goal. In Germany there are no procedural safeguards relating to searches of lawyers’ offices, and hence the prosecutor was able to look for whatever they found necessary - breaking the confidentiality between a lawyer and their client and potentially influencing the proper distribution of justice in violation of Art. 6 ECHR. Moreover, the public nature of this case could have potentially harmed the reputation of the applicant, impacting his income source 17 SAUNDERS V UK CASE SUMMARY Mr Saunders was a director and a chief executive of Guinness. They were “battling” with a rival company, Argyll Group PLC, over who would take over a third company, the Distillers. To achieve Guinnss’s success, Saunders resorted to using illegal methods to boost his company’s standing, which contributed to him being charged with corporate fraud. An investigation was launched by the British Secretary of State for Trade and Industry, conducted by independent investigators who legally compelled the applicant to give testimony. The statements were later used during the trial and Mr Saunders was sentenced RELEVANT ARTICLE(S) Art. 6 ECHR: "In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ..." QUESTION(S) OF LAW Did the statements made by the applicant under compulsion to the inspectors during their investigation and admitted as evidence against him at his subsequent criminal trial violate his right not to incriminate himself, as protected by Art. 6 Par. 1 ECHR? CONCEPTS The right not to incriminate oneself: The right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. The prosecution in a criminal case seeks to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Article 6 para. 2 of the Convention. The privilege against self‐incrimination does not protect against the making of an incriminating statement per se but against the obtaining of evidence by coercion or oppression. It is the existence of compulsion that gives rise to concerns as to whether the privilege against self-incrimination has been respected. For this reason, the Court must first consider the nature and degree of compulsion used to obtain the evidence. The general requirements of fairness contained 18 in Article 6, including the right not to incriminate oneself, apply to criminal proceedings in respect of all types of criminal offences without distinction from the most simple to the most complex. Evidence not in breach of the right to avoid self-incrimination: The evidence does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing. CRITERIA 1. Nature and degree of compulsion 2. Whether the evidence obtained had an existence independent of the will of the accused JUDGMENT Violation, as the statements were made under legal compulsion (threats of legitimate punishments) and did not exist separately from the will of the accused 19 JALLOH V GERMANY CASE SUMMARY In 1993, four policemen saw Mr Jalloh take a “bubble” (a plastic bag) out of his mouth and sell it to another person. On suspicions drugs were in those bubbles, the policemen tried to arrest the applicant who, upon noticing them, swallowed the bag (c. 11). A public prosecutor then demanded that emetics should be given to the suspect to make him regurgitate the bubble (c. 12). Jalloh was taken to a hospital and refused to take the emetics willingly, so the police officers held him down with force and the doctor forcibly administered the medication into the applicant’s body using a nasogastric tube and a syringe (c. 13). The applicant vomited out the bubble which was taken by the police to evidence and used for the seller’s prosecution. The applicant alleged a breach of Art. 3 and Art. 6 Par. 1 ECHR. RELEVANT ARTICLE(S) 1. Art. 3 ECHR: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 2. Art. 6 ECHR: "In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ... QUESTION(S) OF LAW 1. Did the forcible administration of emetics consist of an inhuman and degrading treatment in violation of Art. 3 ECHR? 2. Was the use of emetics a violation of the right not to incriminate oneself as protected in Art. 6 ECHR? CONCEPTS Ill-treatment in breach of Art. 3 ECHR: Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the 20 coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Inhuman treatment: Treatment that is “premeditated, was applied for hours at a stretch and caused either actual bodily injury or intensive physical and mental suffering” Degrading treatment: Treatment that “arouses in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance, or when it was such as to drive the victim to act against his will or conscience”. Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, one of the factors which the Court will take into account is the question whether its object was to humiliate and debase the person concerned, although the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3. Attaining degrading or inhuman treatment: In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Whether all forcible interventions are in violation of Art. 3 (and 8) ECHR: Articles 3 and 8 of the Convention do not as such prohibit recourse to a medical procedure in defiance of the will of a suspect in order to obtain from him evidence of his involvement in the commission of a criminal offence. Thus, the Convention institutions have found on several occasions that the taking of blood or saliva samples against a suspect’s will in order to investigate an offence did not breach these Articles in the circumstances of the cases examined by them. However, any recourse to a forcible medical intervention in order to obtain evidence of a crime must be convincingly justified on the facts of a particular case. Principle against self-incrimination in cases of “real” evidence: The privilege against self-incrimination is commonly understood in the Contracting States and elsewhere to be primarily concerned with respecting the will of the defendant to remain silent in the face of questioning and not to be compelled to provide a statement. The Court has on occasion given the principle of self-incrimination as protected under Article 6 § 1 a broader meaning so as to encompass cases in which coercion to hand over real evidence to the authorities was in issue. 21 CRITERIA Art. 3 ECHR Attaining the minimum level of severity - interference with a person’s physical integrity 1. Whether a procedure was needed from a medical point of view (saving the life of the accused, for instance) 2. Whether the use of a procedure violating a person’s physical integrity attained the minimum standard of severity to be in violation of Art. 3 a. b. c. d. e. Art. 6 ECHR Applicability than listed in The extent to which the action was necessary The risks to the person’s health The manner in which the procedure was carried out i. Physical pain ii. Mental suffering Degree of medical supervision Effects on person’s health of the privilege against self-incrimination in cases of real evidence (evidence different Saunders but still applicable) 1. Administration of intrusive means against the will of the accused to obtain bodily evidence 2. Degree of force used to obtain real evidence differs significantly from the degree of compulsion normally required to obtain the types of material referred to in the Saunders case. 3. Evidence obtained by means of a procedure in violation of Article 3; in striking contrast to procedures for obtaining evidence listed in Saunders Integrity of the right against self-incrimination 1. Nature and degree of compulsion 2. Weight of public interest (no longer used) 3. Existence of relevant safeguards 4. The use to which the evidence obtained was put (whether it was decisive, for instance) JUDGMENT 1. Violation of Art. 3 ECHR because the treatment attained the minimum level of severity 2. Violation of Art. 6 Par. 1 as the right not to incriminate oneself was not respected 22 GÄFGEN V GERMANY CASE SUMMARY The applicant was subjected to threats of violence to make him reveal the location of the body of a child he murdered RELEVANT ARTICLE(S) Art. 3 ECHR: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Art. 6 Par. 1 & 3 under c) ECHR: “1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing ...” (...) QUESTION(S) OF LAW Art. 3 ECHR: Whether the threats of violence reached the minimum level of severity necessary to violate Art. 3 ECHR Art. 6 ECHR: Whether the use of real evidence obtained by violation of Art. 3 ECHR rendered the whole trial unfair in the light of Art. 6 ECHR (especially the right to defend oneself and the privilege against self-incrimination enshrined in that article) CONCEPTS The use of statements obtained as a result of violation of Art. 3 ECHR: Particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. The use of such evidence, secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention, always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction. Therefore, the use in criminal proceedings of statements obtained as a result of a violation of Article 3 – irrespective of the classification of the treatment as torture, inhuman or degrading treatment – renders the proceedings as 23 a whole automatically unfair, in breach of Article 6. The issue arises only when the statements are not excluded from the evidence. The use of real evidence obtained as a direct result of ill-treatment in breach of Art. 3 ECHR: incriminating real evidence obtained as a result of acts of violence, at least if those acts had to be characterised as torture, should never be relied on as proof of the victim’s guilt, irrespective of its probative value. The admission of such evidence obtained as a result of an act classified as inhuman treatment in breach of Article 3, but falling short of torture, will only breach Article 6 if it has been shown that the breach of Article 3 had a bearing on the outcome of the proceedings against the defendant, that is, had an impact on his or her conviction or sentence. Use of both real evidence and statements when a violation of Art. 3 is concerned, but which was not directly linked to that violation: Presence of new evidence obtained independently of the breach of Art. 3 (for example a second confession during trial, new real evidence found separately), if shown to have existed separately, is perfectly admissible and not a violation of Art. 6 when used during the trial and resulting in a conviction. The rights of the defence should also be respected in regards to that evidence (possibility to examine it, for instance) Loss of victim status under Art. 34 ECHR: The applicant, in principle, does not lose their status of a “victim” of a breach of Art. 3 ECHR, even if a decision or a measure favourable to them was issued by the State. However, if the national authorities acknowledged the violation and afforded redress directly for it, a person may lose their status of a victim CRITERIA Art. 3 ECHR Attaining the minimum level of severity - no interference with a person’s physical integrity 1. Duration of the treatment 2. Physical or mental effects 3. Intentional or otherwise 4. Purpose 5. Context in which it was inflicted Loss of victim status 1. Acknowledgement, expressly or in substance, of the breach of the Convention 2. Appropriate and sufficient redress for the breach of Art. 3 24 a. Thorough and effective investigation into those who violated the ECHR i. Promptness ii. Outcome of the investigation and of the criminal proceedings 1. Sanction imposed 2. Disciplinary measures taken b. Compensation to the applicant c. Exclusion of all evidence obtained as a direct result of the violation of Art. 3 ECHR from the trial d. (Continuing impact of the breach on the trial) Art. 6 ECHR Whether the proceedings as a whole were fair (in the context of Art. 3) 1. Examination of “unlawfulness” a. Whether the rights of the defence have been respected, including (but not limited to) i. Opportunity to challenge evidence ii. Quality of evidence iii. Circumstances in which evidence was obtained iv. Whether the evidence was of a decisive nature 2. Nature of the violation of another ECHR article (if applicable) a. Statements i. Used - automatic violation (no matter the degree of severity) ii. Not used - further exploration b. Real evidence i. Obtained through torture and used - violation ii. Obtained through inhuman or degrading treatment and used - left open; depends on the circumstances 3. Did the breach of Art. 3 have an impact on the conviction of the applicant? (very circumstantial) a. The use of real evidence obtained separately from the evidence procured following a violation of Art. 3 is not in breach of Art. 6 ECHR (if the rights of the defence were respected) 25 JUDGMENT 1. Art. 3: Violation, as the State owned up to their mistakes 2. Art. 6: No violation, as the failure to exclude the impugned real evidence, secured following a statement extracted by means of inhuman treatment, did not have a bearing on the applicant’s conviction and sentence. 26 ALLAN V UK CASE SUMMARY Mr Allan, a person suspected of killing another, was put in a pre-trial detention with another suspect, H., who, unbeknownst to Allan, was recruited by the police to try and obtain confession from Allan in return for a lighter sentence. One day, after being first interrogated by the police, Allan confessed to H. His statement was used during the trial and Allan was convicted. RELEVANT ARTICLE(S) Art. 8 ECHR: “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Art. 6 ECHR: “In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” QUESTION(S) OF LAW 1. Did the use of covert video- and audio-recording devices in his cell and prison visiting area and on the person of a fellow prisoner violate the applicant’s right to a private life under Art. 6 ECHR? 2. Was the use of evidence obtained by covert recording devices during the trial a violation of Art. 6 ECHR? a. Were the proceedings, as a whole, fair? i. Was the right to remain silent and the right not to incriminate oneself violated CONCEPTS The right to remain silent and not incriminate oneself: The right, which the Court has previously observed is at the heart of the notion of a fair procedure, serves in principle to protect the freedom of a suspected person to choose 12 whether to speak or to remain silent when questioned by the police. 27 Such freedom of choice is effectively undermined in a case in which, the suspect having elected to remain silent during questioning, the authorities use subterfuge to elicit, from the suspect, confessions or other statements of an incriminatory nature, which they were unable to obtain during such questioning and where the confessions or statements thereby obtained are adduced in evidence at trial. Difference between Allan and Khan; functional equivalent of interrogation: In contrast to the position in Khan, the admissions allegedly made by the applicant to H., and which formed the main or decisive evidence against him at trial, were not spontaneous and unprompted statements volunteered by the applicant, but were induced by the persistent questioning of H., who, at the instance of the police, channelled their conversations into discussions of the murder in circumstances which can be regarded as the functional equivalent of interrogation, without any of the safeguards which would attach to a formal police interview, including the attendance of a solicitor and the issuing of the usual caution CRITERIA Art. 8 ECHR - criteria from Niemietz + Khan 1. Was the interference legitimate? a. In accordance with the law? (+ criteria of Khan) i. Prescribed by domestic law? ii. Accessible? iii. Foreseeable? b. Falling under the scope of one of the goals of Art. 8? c. Necessary in a democratic society? i. Proportionate? Art. 6 ECHR: Whether the privilege against self-incrimination and the right to remain silent was violated 1. Whether there was a functional equivalent of an interrogation 2. Criteria for assessing whether the right not to incriminate oneself were violated (Jalloh) a. Nature and degree of compulsion b. Existence of any relevant safeguards c. The use to which evidence is put d. Weight of public interest 28 JUDGMENT 1. Violation of Art. 8 ECHR as there use of covert devices was not prescribed by domestic law, and hence not in accordance with the law 2. Violation of Art. 6 ECHR, as the right to remain silent and not incriminate oneself were violated; the evidence was obtained in defiance of the will of the defendant 29 SALDUZ V TURKEY CASE SUMMARY RELEVANT ARTICLE(S) Art. 6 Par. 3 under c) ECHR: “3. Everyone charged with a criminal offence has the following minimum rights: (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.” QUESTION(S) OF LAW Did the restriction of the access to a lawyer violate the right under Art. 6 Par. 3 under c) ECHR? CONCEPTS Applicability of Art. 6 Par. 3 under c) to pre-trial proceedings: The primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions Scope of guaranteeing the respect for Art. 6 Par. 3 under c): Nevertheless, Article 6 § 3 (c) does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems Possible restrictions of the provision: However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances 30 Moment of applicability: In order for the right to a fair trial to remain sufficiently “practical and effective”, Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. A suspect should have access to legal assistance from the moment there is a “criminal charge.” CRITERIA 1. The right to have a lawyer present during the proceedings (“practical and effective”) a. Restriction of the right? b. If so, is it justifiable? i. Does the restriction prejudice the rights of the accused? If yes - violation (NB: JUDGMENT The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction) 31 DE SALVADOR TORRES V SPAIN CASE SUMMARY Mr Salvador Torres was charged in the first instance with embezzlement of public funds under Art. 394 Par. 4 Criminal Code. The court of the second instance decided that simple embezzlement, without the “public funds” part, should be applicable. After an appeal to cassation, the Supreme Court convicted him of the offence of simple embezzlement with an aggravating circumstance, with which the applicant was never explicitly charged. The applicant claimed that such a reclassification of an offence violated his right to a fair trial. RELEVANT ARTICLE(S) Art. 6 Par. 3 under a) ECHR: "Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, ... and in detail, of the nature and cause of the accusation against him;" QUESTION(S) OF LAW Did the fact that the applicant had been convicted of an offence with an aggravating circumstance with which he had never been expressly charged constituted a violation of Article 6 para. 3 (a) of the Convention? CONCEPTS Reclassification of an offence: The accused must be duly and fully informed of any changes in the accusation, including changes in its “cause”, and must be provided with adequate time and facilities to react to them and organise his defence on the basis of any new information or allegation. A reclassification of the offence is considered to be sufficiently foreseeable to the accused if it concerns an element which is intrinsic to the accusation CRITERIA Did the reclassification of an offence contain an element intrinsic to the accusation? If yes, no violation 32 JUDGMENT No violation, as the fact that the applicant was a public person was acknowledged by both parties and hence the addition of an aggravating factor was sufficiently foreseeable in the reclassification of an offence. 33 PELISSIER AND SASSI V FRANCE CASE SUMMARY Pelissier and Sassi were charged in the first instance with criminal bankruptcy. After an appeal, the court of the second instance found them guilty of a crime of “aiding and abetting” criminal bankruptcy, which is a completely different offence in itself. RELEVANT ARTICLE(S) Art. 6 Par. 1 & Par. 3 under a) and b) ECHR: 1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ... 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; QUESTION(S) OF LAW Was the reclassification of an offence from criminal bankruptcy to “aiding and abetting” criminal bankruptcy a violation of the Convention? CONCEPTS Art. 6 Par. 3 under a): Article 6 § 3 (a) does not impose any special formal requirement as to the manner in which the accused is to be informed of the nature and cause of the accusation against him Connection of Art. 6 Par. 3 under a) and Art. 6 Par. 1 ECHR: The scope of Article 6 § 3 (a) must be assessed in the light of the more general right to a fair hearing guaranteed by Article 6 § 1 of the Convention. In criminal matters the provision of full, detailed information concerning the charges against a defendant, and consequently the legal characterisation that the court might adopt in the matter, is an essential prerequisite for ensuring that the proceedings are fair Connection of Art. 6 Par. 3 under a) and Art. 6 Par, 3 under b): Sub-paragraphs (a) and (b) of Article 6 § 3 are connected and that the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused’s right to prepare his defence. 34 CRITERIA Did the reclassification of an offence contain an element intrinsic to the accusation? If yes, no violation. Different actus reus and/or mens rea? Not intrinsic, hence violation. JUDGMENT Although the offence of “aiding and abetting” criminal bankruptcy is connected to the offence of criminal bankruptcy (which constitutes a principal offence), “aiding and abetting” requires a different set of mens rea and actus reus, and hence is not intrinsic to the principal offence. Reclassification would need to be explicitly stated, and the defence given time and facilities to prepare. This was not done, and so the Convention was violated. 35 RANTSEV V CYPRUS AND RUSSIA CASE SUMMARY Oxana Rantseva, the daughter of the applicant, was a 20-year-old Russian woman recruited to work as an ‘artiste’ in Cyprus. She was trafficked to Cyprus, a destination country for women trafficked from Eastern and Central Europe, for the purpose of sexual exploitation. While in Cyprus, she was subjected to sexual exploitation in a cabaret in the island’s largest coastal resort, Limassol. Shortly after her arrival in Cyprus, Miss Rantseva died in suspicious circumstances. Miss Rantseva was found dead in March 2001 below the balcony of an apartment belonging to an employee of the cabaret, having been taken there from a police station by the cabaret’s owner. RELEVANT ARTICLE(S) 1. Art. 2 ECHR: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Art. 4 ECHR: “1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour QUESTION(S) OF LAW 1. Did the States fail to conduct a proper investigation into the death of the victim, as a positive obligation enshrined in Art. 2 ECHR compels them to? 2. Did the States fail to fulfill their positive obligations in regard to prevention and punishment of human trafficking, as prescribed in Art. 4 ECHR? CONCEPTS Positive obligations: In the view of the European Court, the prime characteristic of positive obligations is that they in practice require national authorities to take the necessary measures to safeguard a right or, more precisely, to take the necessary measures to safeguard a right or, more specifically, to adopt reasonable and suitable measures to protect the rights of the individual. Such measures may be judicial. 36 Positive obligations in Art. 2: Article 2 contains two substantive obligations: the general obligation to protect by law the right to life, and the prohibition of intentional deprivation of life, delimited by a list of exceptions. Having regard to its fundamental character, Article 2 of the Convention also contains a procedural obligation to carry out an effective investigation into alleged breaches of its substantive limb. The Court underlined that the obligation to protect the right to life under this provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in the Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State Positive obligation in Art. 2 - investigation: This obligation arises in a variety of situations where an individual has sustained life-threatening injuries, died or has disappeared in violent or suspicious circumstances, irrespective of whether those allegedly responsible are State agents or private persons or are unknown or self-inflicted. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. For an investigation to be effective, the persons responsible for carrying it out must be independent from those implicated in the events. This requires not only hierarchical or institutional independence but also practical independence. Positive obligations in Art. 4: Article 4 requires that member States penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour. In order to comply with this obligation, member States are required to put in place a legislative and administrative framework to prohibit and punish such acts. Two of the aspects of the positive obligations – the duty to put in place a legislative and administrative framework and the duty to take operational measures – can be denoted as substantive, whereas the third aspect concerns the procedural obligation to investigate Human trafficking in the light of Art. 4 ECHR: Article 4 makes no mention of trafficking, proscribing “slavery”, “servitude” and “forced and compulsory labour. Trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention 37 CRITERIA 1. Art. 2 ECHR - positive obligation of conducting an investigation (taken jointly; not a hierarchy) a. b. c. d. 2. Art. 4 a. b. c. JUDGMENT 1. Art. 2 a. b. 2. Art. 4 a. b. Investigation conducted by independent entities Adequate investigation (capable of leading to a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible; means and not result) Promptness and reasonable expedition Involvement of the next of kin (and public scrutiny) ECHR - list of positive obligations (taken jointly; not a hierarchy) To put in place an appropriate legislative and administrative framework To take protective measures To investigate (potential) trafficking i. Domestic ii. International Cyprus - violation, as the investigation they conducted was not adequate Russia - no violation, as the obligation to conduct an investigation lied primarily with Cyprus and Russia did what it could to aid it Cyprus: i. Did not have an appropriate legislative and administrative framework against human trafficking (violation) ii. Failed to take protective measures (violation) iii. No need to examine the investigation within the scope of Art. 4 as Art. 2 was found to be violated Russia: i. The legislation at the time was appropriate (no violation) ii. Circumstances did not create a positive obligation to take operational measures (no violation) iii. No investigation into the recruitment of the victim (violation) 38 DE CUBBER V BELGIUM CASE SUMMARY The applicant on a trial was put before a panel of judges, amongst whom one served as the applicant’s investigative judge in previous cases. RELEVANT ARTICLE(S) Art. 6 Par. 1 ECHR: "In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by an ... impartial tribunal ... ." QUESTION(S) OF LAW Did the fact that an investigating judge, who previously was involved with the applicant, also sat as the trial judge and sentenced the applicant violate the right to have a hearing by an “impartial tribunal” as protected in Art. 6 Par. 1 ECHR? CONCEPTS Impartiality vs independence: The right to a fair trial in Article 6 § 1 requires that a case be heard by an “independent and impartial tribunal” established by law. There is a close link between the concepts of independence and objective impartiality. For this reason the Court commonly considers the two requirements together. 1. Article 6 § 1 of the Convention requires independence from the other branches of power – that is, the executive and the legislature – and also from the parties 2. Article 6 § 1 of the Convention requires a tribunal falling within its scope to be “impartial”. Impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways Assessing impartiality: The Court has distinguish between: 1. Subjective approach - endeavouring to ascertain the personal conviction or interest of a given judge in a particular case; 2. Objective approach - an objective approach, that is, determining whether he or she offered sufficient guarantees to exclude any legitimate doubt in this respect (appearance of the court; "justice must not only be done: it must also be seen to be done") 39 CRITERIA 1. Subjective approach a. Presumption of impartiality until there is proof to the contrary, for example i. Hostility or ill will ii. Arrangement to have a case assigned for personal reasons 2. Objective approach (always has to be checked) a. Varies on a case-to-case basis b. No fixed criteria; logical deduction JUDGMENT Violation, as objectivity of the court could have appeared as doubtful to the applicant and external observers 40 COLOZZA V ITALY CASE SUMMARY The applicant, charged with various offences, could not have been found by the Italian authorities and was given the status “latitante.” The trial was held in absentia, after which Mr Colozza was sentenced to prison time. The State said that the fact the applicant was declared “latitante” meant he waived his rights under Art. 6 Par. 1 ECHR RELEVANT ARTICLE(S) Art. 6 Par. 1 ECHR: "In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ." QUESTION(S) OF LAW Whether the combined recourse to the procedure for notifying persons who are untraceable (irreperibile) and to the procedure for holding a trial by default - in the form applicable to "latitanti" - deprived the applicant of the rights under Art. 6 Par. 1 ECHR. CONCEPTS General right to be present during the trial: The principle of an oral and public hearing is particularly important in the criminal context, where a person charged with a criminal offence must generally be able to attend a hearing at first instance. Without being present, it is difficult to see how that person could exercise the specific rights set out in sub-paragraphs (c), (d) and (e) of paragraph 3 of Article 6, namely the right to “defend himself in person”, “to examine or have examined witnesses” and “to have the free assistance of an interpreter if he cannot understand or speak the language used in court”. The duty to guarantee the right of a criminal defendant to be present in the courtroom ranks therefore as one of the essential requirements of Article 6. Domestic courts must exercise due diligence in securing the presence of the accused at a trial. Trial in absentia: Trials in absentia are not, in principle, against the Convention, until certain rights are respected. A hearing may be held in the accused’s absence, if he or she has waived the right to be present at the hearing. Such a waiver may be explicit or implied through one’s conduct, such as when he or she seeks to evade the trial. However, any waiver of guarantees under Article 6 must satisfy the 41 test of a “knowing and intelligent” waiver as established in the Court’s case-law. When domestic law permits a trial to be held notwithstanding the absence of a person “charged with a criminal offence” who is in the applicant’s position, that person should, once he becomes aware of the proceedings, be able to obtain, from a court which has heard him, a fresh determination of the merits of the charge Status of a “latitante” (fugitive): Where a person charged with a criminal offence had not been notified in person, it could not be inferred merely from one’s status as a “fugitive”, which was founded on a presumption with an insufficient factual basis, that the defendant had waived the right to appear at trial and defend oneself. Moreover, a person charged with a criminal offence must not be left with the burden of proving that he was not seeking to evade justice or that his absence was due to force majeure. At the same time, it is open to the national authorities to assess whether the accused showed good cause for his absence or whether there was anything in the case file to warrant finding that he had been absent for reasons beyond his control CRITERIA Whether the trial in absentia was permissible (+ criteria from Lala v Netherlands) 1. Once the “fugitive” is found, the Courts must issue a fresh determination of the merits of the charge and allow for a retrial 2. The authorities must have exercised due diligence in their attempts to contact and inform the accused of charges against him 3. The right to appear before the Court can be waived. The waiver can be explicit or implicit (if, for instance, the person deliberately evades the trial). However, the waiver needs to have the three characteristics: a. Intelligent b. Knowing c. Unequivocal JUDGMENT Violation, as after the suspect was found, there was no retrial. A possibility to appeal does not satisfy the requirement of a retrial 42 LALA V NETHERLANDS CASE SUMMARY The applicant did not show for his trial in fear of being captured and having a previous sentence executed. However, his defence council was ready to represent him. Nevertheless, the judge stated that, because neither the counsel nor the defendant gave an explicit wish for the counsel to represent the applicant, they were not allowed to participate in the trial as the court assumed the right to defence was waived. RELEVANT ARTICLE(S) Art. 6 Par. 1 & Par. 3 under c) ECHR: "1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing ..." QUESTION(S) OF LAW Did the restrictions on defence counsel imposed by the state violate the applicant’s right to defence under Art. 6 Par. 3 under c) ECHR? CONCEPTS Joint consideration of Art. 6 Par. 3 under c) and Art. 6 Par. 1: As the requirements of paragraph 3 of Article 6 (art. 6-3) are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1, the Court will examine the complaints under both provisions taken together Trial in default: The right to legal representation is not dependent upon the accused’s presence. The fact that the defendant, despite having been properly summoned, does not appear, cannot – even in the absence of an excuse – justify depriving him of his right to be defended by counsel. Even if the legislature must be able to discourage unjustified absences, it cannot penalise them by creating exceptions to the right to legal assistance. The legitimate requirement that defendants must attend court hearings can be satisfied by means other than deprivation of the right to be defended. Thus, an issue arises under Article 6 § 3 (c) if an applicant’s defence counsel is unable to conduct the defence in the applicant’s absence in a hearing before the relevant court, including an appellate court 43 CRITERIA Whether the trial in absentia was permissible (+ criteria from Colozza v Italy) 4. Once the “fugitive” is found, the Courts must issue a fresh determination of the merits of the charge and allow for a retrial 5. The authorities must have exercised due diligence in their attempts to contact and inform the accused of charges against him 6. The right to appear before the Court can be waived. The waiver can be explicit or implicit (if, for instance, the person deliberately evades the trial). However, the waiver needs to have the three characteristics: a. Intelligent b. Knowing c. Unequivocal JUDGMENT Violation, as the rights of the defence were not respected 44 SCHATSCHASCHWILI V GERMANY CASE SUMMARY During the trial against the applicant, the statements of the only two eye-witnesses, taken during the pre-trial investigation, were included in the evidence proper. The applicant had no possibility to examine the witnesses as they were not present during the trial. RELEVANT ARTICLE(S) Art. 6 Par. 1 & Art. 6 Par. 3 under d) ECHR: QUESTION(S) OF LAW Was the use of pre-trial statements of witnesses who did not appear at the trial as evidence violate the rights under Art. 6 Par. 3 under d) ECHR? CONCEPTS Connection between Art. 6 Par. 3 under d) and Art. 6 Par. 1 ECHR: 486. The guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision, and the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings. In making this assessment, the Court looks at the proceedings as a whole, including the way in which the evidence was obtained, having regard to the rights of the defence but also to the interests of the public and the victims in proper prosecution and, where necessary, to the rights of witnesses Competences of the Court: Given that the admissibility of evidence is a matter for regulation by national law and the national courts, the Court’s only concern under Articles 6 §§ 1 and 3 (d) of the Convention is to examine whether the proceedings have been conducted fairly The basics of using witness statements Pursuant to Article 6 § 3 (d), before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe upon the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness 45 makes his statement or at a later stage of proceedings. These principles particularly hold true when using witness statements obtained during police inquiry and judicial investigation at a hearing “Sole” and “decisive” evidence: Sole evidence means “the only evidence”. Decisive evidence is narrowly interpreted as “indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case” Clarification of the “Al Khawaja test” in Schatschaschwili: These principles have been further clarified in Schatschaschwili v. Germany (§§ 111-131) in which the Court confirmed that the absence of good reason for the non-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3(d). Furthermore, The Court explained that given that its concern was to ascertain whether the proceedings as a whole were fair, it should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence. CRITERIA 1. Art. 6 ECHR has application also in pre-trial proceedings insofar as the fairness of the trial can be seriously prejudiced by its non-application (Imbrioscia v Switzerland). In the judgement Al Khawaja and Tahery v UK, the Court developed the three-step model of assessment whether the pre-trial statements of an absent witness can be used as evidence. The include: a. whether there was a good reason for the non-attendance of the witness and, consequently, for the admission of the absent witness’s untested statements as evidence b. whether the evidence of the absent witness was the sole or decisive basis for the defendant’s conviction c. whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps caused to the defence as a result of the admission of the untested evidence and to ensure that the trial, judged as a whole, was fair 46 2. As to the relationship of those steps with each other, the court made the followings observation in the present case a. b. c. Art. 6 Par. 3 refined in the 1. Good The lack of a good reason for the non-attendance of the witness by itself does not violate Art. 6 ECHR, but is a very important factor The assessment of counterbalancing factors must be given even in cases where the evidence was neither sole nor decisive. The more important the statements to the conviction, however, the stronger the need for counterbalancing factors The steps of the Al Khawaja test are not firmly set and can be assessed in a different order than presented in that judgement. They are also very strongly correlated to one another, and so the Al Khawaja test follows the most logical path of assessing violation of Art. 6 under d): non-attendance of witnesses at trial (the Al-Khawaja and Tahery v UK case; current case) reason for the non-attendance of the witness and admission of their statements into evidence 1.1. Due diligence of the court to secure the witness's attendance 2. Whether the statements were the sole or decisive basis for the conviction 3. Sufficient counterbalancing factors, including procedural safeguards (possible examples; not a definitive list) 3.1. Approach of the statements with caution 3.2. Existence of a video recording 3.3. Availability of corroborative evidence 3.4. Possibility for the defence to put its questions to the witness indirectly (e.g. in writing) 3.5. Possibility of questioning the witness during the investigation stage 3.6. Opportunity for the defendant to present their own version of events and put doubt onto the statements of the absent witness JUDGMENT Violation, as there were insufficient counterbalancing factors the defence could have availed itself of 47 NATSVLISHVILI AND TOGONIDZE V GEORGIA CASE SUMMARY Plea bargaining case RELEVANT ARTICLE(S) Art. 6 Par. 1 ECHR & Art. 2 Protocol no. 7: 1. Art. 6: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...” 2. Art. 2 Prot. no. 7: “1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.” QUESTION(S) OF LAW Was the plea bargaining process an abuse of process which, in addition, violated the right to appeal the case to a higher court, in breach of Art. 6 Par. 1 ECHR and Art. 2 Protocol no. 7? CONCEPTS Plea bargaining: The Court has noted that it can be considered a common feature of European criminal-justice systems for an accused to receive a lesser charge or a reduced sentence in exchange for a guilty or nolo contendere plea in advance of trial, or for providing substantial cooperation with the investigative authority. There cannot therefore be anything improper in the process of charge or sentence bargaining in itself. For the Court, plea bargaining, apart from offering important benefits of speedy adjudication of criminal cases and alleviating the workload of courts, prosecutors and lawyers, can also, if applied correctly, be a successful tool in combating corruption and organised crime and can contribute to the reduction of the number of sentences imposed and, as a result, the number of prisoners. The abridged form of judicial examination used in the process of plea bargaining means that certain procedural rights are waived while entering it. CRITERIA Two basic characteristics of proper plea bargains: 48 1. The bargain had to be accepted by the first applicant in full awareness of the facts of the case and the legal consequences and in a genuinely voluntary manner; and 2. The content of the bargain and the fairness of the manner in which it had been reached between the parties had to be subjected to sufficient judicial review. JUDGMENT No violation as the plea bargain the applicant entered respected the two criteria given by the court 49 KREMZOW V AUSTRIA CASE SUMMARY An ex-judge killed a person and was sentenced to 20 years imprisonment in a mental institution. Upon appeal, for which an applicant was denied his presence, the sentence was changed to life imprisonment in a regular jail. He was also not able to participate in hearings about nullity pleas. The applicant complained that his right to defend himself was not respected as he was unable to participate in appellate proceedings. RELEVANT ARTICLE(S) 1. Art. 6 Par. 1 jo. Par. 3 under b): "1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence; 2. Art. 6 Par. 1 jo. Par. 3 under c): "1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...3. Everyone charged with a criminal offence has the following minimum rights (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; QUESTION(S) OF LAW 1. Was the issuance of the Attorney General's position papers 3 weeks before the proceedings in violation of Art. 6 Par. 1 jo. Par. 3 under b)? 2. Was the applicant’s absence during the hearing on pleas of nullity and the appeal trial in violation of Art. 6 Par. 1 jo. Par. 3 under c)? CONCEPTS Presence at appeal hearing: The principle that hearings should be held in public entails the right of the accused to give evidence in person to an appellate court. From that perspective, the principle of publicity pursues the aim of guaranteeing the accused’s defence rights. However, the personal attendance of the defendant does not take on the same crucial significance for an appeal hearing as it 50 does for a trial hearing. Leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, despite the fact that the appellant is not given the opportunity to be heard in person by the appeal or cassation court, provided that a public hearing is held at first instance. Appellate court - modification of sentence: Where the appellate court is competent to modify, including to increase, the sentence imposed by the lower court and when the appeal proceedings are capable of raising issues involving an assessment of the accused’s personality and character and his or her state of mind at the time of the offence, which make such proceedings of crucial importance for the accused, it is essential to the fairness of the proceedings that he or she be enabled to be present at the hearing and afforded the opportunity to participate in it Positive obligation to ensure presence in court: Even if domestic law requires a specific request to be made by the accused to allow his presence during appeal trials, in cases where the stakes for the applicant are high, there exists a positive obligation on the State under Art. 6 Par. 3 under c) to ensure that the applicant appears before the court. CRITERIA Presence at appeal hearing 1. On what points is the appeal formed? a. Points of law - the right to be present does not have to be guaranteed (if rights of defence are respected) b. Points of fact (especially modification of sentence) - the right to be present must be guaranteed JUDGMENT 1. Art. 6 Par. 1 jo. Par. 3 under b) - no violation, as there was enough time and facilities to prepare 2. Art. 6 Par. 1 jo. Par. 3 under c) - violation, as the national courts did not ascertain the defendant’s presence in-person during appellate hearing