6. The right to a fair trial in criminal cases under Article 6 + Article 7

Question 1

What does the paraprag say?

Answer 1

The right to a fair trial in criminal cases

Question 2

What is the scope of art. 6(2) and (3)

Answer 2

• Both apply to everyone charged with a criminal offence. The court has adopted an autonomous interpretation, independent of the categorisation of legal proceedings under national law.
• Indeed, there does not appear to be any significant difference between the (2)-(3) and (1) except as regards the duration of the proceedings covered.

Question 3

whats the fair trial guarantees in criminal cases

Answer 3

The court has held that a person charged with a criminal offence enjoys certain additional rights, which are considered below. The five rights set out in (3) are stated to be minimum rights in criminal cases.

Question 4

whats the fair trial guarantees in criminal cases

Police methods of investigation

Answer 4

• Even before charges are brought against an accused, unfairness of the part of the police responsible for the investigation against him or her may be sufficient to give rise to a violation of article 6 (1).
• It is only in rare and extreme cases, that the court considers unlawful behaviour by the police or investigators sufficient in itself to bring the trial into breach of article 6.
• Cases page 311-312.

Question 5

whats the fair trial guarantees in criminal cases

The right to silence, the principle against self-incrimination and the presumption of innocence

Answer 5

• Although it is not mentioned in article 6, the court has held, that the right to silence and the right not to incriminate oneself are generally recognised international standards which lie a the hearth of the notion of a fair criminal procedure under article 6 (1). These rights are closely linked to the principle enshrined in article 6 (2), that a person accused of a crime is innocent until proved guilty according to law.
• The right to silence is a composite term which in fact encompasses a number of separate rights - page 312.
• The right not to incriminate oneself can include protecting against the requirement to produce documents, as well as the right not to make statements or admissions.
o Cases page 312-314.
• There is also considerable case-law under paragraphs (1) and (2) on the extent to which a criminal court may draw an inference of guilt from an accused’s silence.
o Cases page 314-315.
• Is it clear, that the court does not consider that the drawing of inferences from an accused’s silence is in itself incompatible with article 6, as long as judicial safeguards operate to ensure fairness.
o Case page 315.

Question 6

whats the fair trial guarantees in criminal cases

The burden of proof and statutory presumptions

Answer 6

• It is interesting to speculate as to what type of reversed burden of proof the court would find inconsistent with article 6.
o Cases page 316.
• Owning property and spending money are activities undertaken by almost everyone in western society and, unlike possessing illegal drugs, are not prima facie unlawful. Page 316.

Question 7

whats the fair trial guarantees in criminal cases

Answer 7

• Article 6 (2) is not merely concerned with the burden of proof. It also prohibits the authorities from saying or doing anything which indicates that they believe a person is guilty of an offence, unless or until guilt is proven. This does not prevent the authorities from informing the public about criminal investigations in progress, but it does require them to be discreet and circumspect in order to preserve the presumption of innocence.
• The court has indicated that the protection of article 6 (2) may be infringed not only by a judge or a court, but also by other public authorities.
o More on page 317.
o Also cases.
• The court has found that the use of a dock or metal cage during legal proceedings in degrading under article 3. But it has not found, that the use undermines the presumption of innocence.

Question 8

whats the fair trial guarantees in criminal cases

Use of evidence obtained by ill-treatment

Answer 8

• See article 15 about torture in another convention (page 319) - result of torture can not be evidence. There is no corresponding provision in the convention, but the court has read such obligation into article 6.

Question 9

whats the fair trial guarantees in criminal cases

Prompt notification of the charges and interpretation

Answer 9

• The possibility for an accused to know the case against him is essential to the preparation of a defence.
o Article 6 (3) a demands prompt information in a language the accused can understand in detail.
o Article 6 (3) e grants the right to free interpretation if a person cannot understand or speak the language used in court.
• Cases page 321.
• An accused person whose own conduct has been the principal cause of his not receiving notification of the charges against him cannot complain under article 6 (3) a.
• The court has found that an interpreter should be provided during pre-trial proceedings including the investigation stage, unless it is demonstrated in the light of the circumstances of the case, that there are compelling reasons to restrict access. It has also found that illiterate detainees require additional protection for example in cases where the state claims the detainee her right to a lawyer.

Question 10

whats the fair trial guarantees in criminal cases

Time and facilities to run a defence

Answer 10

• The obligation in article 6 (3) b that those charged with a criminal offence are to have adequate time and facilities for the preparation of a defence is linked to the right in article 6 (3) c to personal representation or legal assistance. There are only few cases, where article 6 (3) b alone has resulted in violation of the convention.

Question 11

whats the fair trial guarantees in criminal cases

Legal assistance

Answer 11

• Article 6 (3) c provides that everyone charge with a criminal offence has three minimum rights:
o To defend himself in person
o To defend himself through legal assistance of his own choice
o If he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
• Only shortcomings in legal representation which are imputable to the state authorities can give rise to a violation of article 6 (3) c.
• The rights in article 6 (3) c are capable of applying pre-trial, since absence of legal representation at this stage could in certain circumstances affect the fairness of the proceedings as a whole.
• The right to see a lawyer in the early stages of a police investigation is not absolute, and where there is a good reason, can be subjected to restrictions.
• Cases page 323-324.
• The court has ruled that a person does not lose his right to the benefit of legal assistance by virtue of his own absence from court.
• Free legal assistance must be given where a substantial prison sentence is involved and there is a real issue to be considered.
• While the national authorities should, as a rule, endeavor to choose a lawyer in whom the defendant places confidence, the accused does not have an unlimited veto where his legal representation is publicly funded.

Question 12

whats the fair trial guarantees in criminal cases

Witnesses and evidence

Answer 12

• Article 6 (3) d grants a number of rights in respect of defense witnesses; to secure their attendance and to examine their evidence on the same basis as the witnesses against the accused.
• Article 6 (3) d is intended to ensure, under each system, that the accused is placed on a footing of equality with the prosecution as regards the calling and examination of witnesses, but it does not give defendants a right to call witnesses without restriction.
• It is normally for the national courts to decide whether it is necessary or advisable to call a witness, and provided the principle of equality has been respected, the court would find a violation only in exceptional circumstances. A court can therefore refuse to hear a witness for the reason that his statement would be irrelevant and even when the evidence is relevant, the court fulfils the obligations if it takes all appropriate steps to ensure the appearance of the witness.
• About evidence of anonymous witness - page 326.
• In criminal proceedings concerning accusations of sexual abuse, particularly where the complainant is a child, the court has held that certain measures may be taken to protect him or her, provided that such measures can be reconciled with an adequate and effective exercise of the rights of the defence.

Question 13

The starting-point for the assessment of the applicability of the criminal aspect of Art. 6 is based on

Answer 13

on the Engel criteria outlined in Engel and Others v. the Netherlands:

1. classification in domestic law;
2. nature of the offence;
3. severity of the penalty that the person concerned risks incurring.

Question 14

At what stage of criminal proceeding does Art. 6(1) apply?

Answer 14

The protection of Art. 6 starts from the time when a person is charge with a criminal offence. As the object of Art. 6 is to protect a person throughout the criminal process, and since formal charges may not be brought until a fairly advanced stage of an investigation, it is necessary to find a criterion for the opening of criminal proceedings which is independent of the actual development of the procedure in a specific case.

Question 15

Right to acces to court

Answer 15

The right of access to a court for the purposes of Art. 6 was defined in Golder v. the United Kingdom
Golder v UK – The applicant was detained in an English prison where serious disturbances broke out. He was accused of assault by a prison officer and wished to bring proceedings for defamation in order to have his record cleare, but this was precluded by the Prison Rules.
ECtHR Held: fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings. Art. 6 also includes a right to invoke legal procedures consistent with the article when a victim faces a loss of rights or an imposition of obligations

Question 16

3.3. Reasoned decision

Answer 16

The guarantees enshrined in Art. 6(1) include the obligation for courts to give sufficient reasons for their decisions. A reasoned decision shows the parties that their case has truly been heard. If the Court gives some reasons, there is a presumption that the requirement of a fair hearing is met. It can be rebutted if it is shown that the Court ignored fundamental arguments and evidence presented to it, which would have discharged the applicant fully or partly from liability.

Question 17

• Gafgen v Germany 2010 (paras 10 - 23; 162 - 188)

Use of evidence obtained by ill-treatment

Answer 17

Gäfgen v Germany (no violation) – Torture and other forms of ill-treatment are to be differentiated. All evidence gathered through torture whether from the confession or flowing from it are excluded. If the victim suffers human or degrading treatment, the initial confession is excluded; however, if the evidence flowing from it is not relied upon to find guilt, then the overall trial can still be held to be fair.

Question 18

• Jalloh v Germany 2006

The right to silence, the principle against self-incrimination, and the presumption of innocence

Answer 18

– On Jalloh’s arrest on suspicion of dealing in drugs, he was seen to swallow a plastic bag. On authorisation of the public prosecutor, an emetic was forcible administered which resulted in his vomiting and one bag of cocaine was found. He complained that the use at his trial of this evidence violated his rights under Art. 6 not to incriminate himself.
ECtHR held: It could be said that the bag of cocaine was evidence which had an existence independent of the will of the accused, but the force violated Art. 3. In order to determine whether the applicant’s right not to incriminate himself has been violated, the Court will have regard, in turn, to the following factors: the nature and degree of compulsion used to obtain the evidence; the weight of the public interest in the investigation and punishment of the offence at issue, the existence of any relevant safeguards in the procedure, and the use to which any material so obtained is put. All in all, there was a violation of Art. 6.