Art.6 ECHR

Question 1

What is a common misconception about the ECtHR?

Answer 1

That it is an appellate body… it is not!
- The Court does not have the function of rectifying errors made by domestic judges in applying domestic law.

IT DOES ensure observance of the Convention and its protocols.

Question 2

Authority which originally developed the meaning of “criminal charge” in Art.6(1) ECHR

Answer 2

Engel v Netherlands (1976) - the Engel criteria

FACTS - involved the imposition of severe sanctions including sending people to military camps. They argued this didn’t come under Art.6(1) ECHR because the Dutch constitution has separate military law so wouldn’t come within criminal charges.

Question 3

3 criteria for assessing on a case by case basis what should be classified as a criminal charge

Answer 3

Engel criteria -

1. Consider how the particular proceedings were classified in national law
2. Consider the substance of the proceedings against the person
3. Nature of the punishment - i.e. severity of the sanctions

Question 4

Are Strasbourg bound by national law when considering what a ‘criminal charge’ means?

Answer 4

Not bound by national law but they must take it into account

Question 5

Example case which considered the substance of the proceedings against the person when discussing if it is a “criminal charge”

Answer 5

2nd engel criteria -
Ozturk v Germany (1984)

FACTS - he was a driver involved in a rider car collision only damage done was to the car. in German law this is dealt with as an administrative offence and he received a fine for careless driving by local council. He brought a claim that this wasn’t fair proceedings but Germany argued it wasn’t a criminal charge so didn’t come within art.6(1) ECHR

HELD - considered how other member states classified that behaviour and the court found that most other ECHR states dealt with minor driving offences as criminal offences so was a criminal trial under art.6(1) even if Germany didn’t classify it as one.

Question 6

What have the ECtHR determined are the FOUR elements for a fair hearing under Art.6(1) ECHR?

Answer 6

1. Equality of arms
2. Right to silence
3. Right of defendants to participate effectively in their trials
4. admission of evidence

Question 7

Authority for equality of arms being a necessary element of a fair hearing under Art.6(1) ECHR

Answer 7

Rowe; Davis v UK (2000)
FACTS - series of connected crimes involving a murder and a robbery and the national media picked up on this and said they were using the M25 as an escape route. due to public outcry the police offered a reward for info. This info led them to Davis and he was subsequently convicted with accomplices but the police never told the defence that the informant had been paid.

HELD - Both sides must share their cases with each other so the fact that the informant had been paid should have been disclosed to Mr Davis and his lawyers at trial to allow them to properly dispute it - found this was a violation of equality of arms necessary for a fair trial

Question 8

THREE cases which developed the right to silence as an element of a fair trial under Art.6 ECHR

Answer 8

1. John Murray v UK (1996)
2. Saunders v UK (1997)
3. O’Halloran and Francis v UK (2007)

Question 9

Case which held read into Art.6(1) ECHR the right to silence but said it was a qualified right

Answer 9

John Murray v UK (1996)

FACTS - Police in N.Ireland got info that the IRA had taken someone hostage. They received info on the location and people were found there with a man held hostage, caught red handed at the crime scene. Taken to police station and they threatened that not answering police questions would have negative evidential consequences. But he still refused to give evidence. He was convicted because there was no reasonable excuse why he was there and the judge said that silence was a secondary element which could count against him.
Murray sought to challenge silence being a secondary element

HELD - considered what other member states approach was and said they would read into the right to a fair trial and imply a right to silence BUT…because this was an implied right it couldn’t be absolute so there had to be factors to be considered on a case by case basis.
- so no breach of his art.6 right to silence because it was only one factor of his conviction

Question 10

THREE Murray criteria when considering an individuals qualified right to silence

Answer 10

John Murray v UK (1996)

1. Circumstances where rights are considered
2. Conviction attached – weight attached to the person’s silence
3. Degree of force to answer imposed on the person

Question 11

Case which developed the Murray criteria for the right to silence

Answer 11

Saunders v UK (1997)

FACTS - Businessman who was under govt. inquiry because of a questionable company merger. There was an inspector for the investigations who had the power to compel the offices to appear before them (could bring a lawyer) and answer questions if they didn’t then they could be certified by the high court as in contempt of court and could face imprisonment for up to 10yrs. So was forced to give incriminating evidence and that was later a key reason used in his criminal trial in which he was sentenced to 7yrs.

HELD - this was a violation of his right to silence - he had only given the answers because of the serious sanctions and the conviction attached to those answers so there hadn’t been a fair trial.

Question 12

Example of a breach of the 3 factors in the right to silence implied into Art.6 ECHR

Answer 12

Saunders v UK (1997)

Question 13

Authority that the qualified right to silence implied into Art.6 ECHR can have special restrictions imposed in special circumstances

Answer 13

O’Halloran and Francis v UK (2007)

FACTS - sought to challenge the rule that you had to say who was driving the car if you were caught on a speed camera or be prosecuted for failing to provide info.

HELD - agreed with the HoL that it is a privilege to have a driving license and so there are special restrictions imposed to protect people - NO VIOLATION of right to silence

BUT… arguably this was allowed for public safety reasons because by people claiming a right to silence in this case it would undermine the use of speed cameras across Europe.

Question 14

Leading authority for the right of defendants to participate effectively in their trials

Answer 14

V v UK (2000)

FACTS - famous case of the two 10yr-old boys who murdered a 2yr old child. The prosecution service decided that because of public concern regarding the case the 2 youngsters should be put on trial in ordinary crown court proceedings rather than special juvenile courts. But, did make physical procedural changes to make allowance for their age

HELD - an 11yr old wasn’t able to effectively participate so there was a violation of the right to a fair trial.

Question 15

Authority which held that it is not for ECtHR to lay down rules on the admissibility of evidence, only to consider the fairness of the trial

Answer 15

Schenk v Switzerland (1988)

FACTS - Man going through an acrimonious divorce tried to hire a hit man. The potential hit man collaborated with the ex-wife and recorded incriminating phone calls. The man was convicted based on these recordings. He sought to argue that these recordings should have been held inadmissible under Art.6 ECHR

HELD - rules on the admissibility of evidence are different across all 47 member states, the ECtHR’s job is primarily to determine the fairness of the trial

Question 16

Case which determined if a time period violates the reasonable time period guarantee under Art.6(1) ECHR

Answer 16

Konig v Germany (1978)

- provided 3 legal considerations which the ECtHR apply on a case by case basis

Question 17

When does the time period within which the reasonable time period for criminal charges guarantee applies begin?

Answer 17

Depends on when a person has been charged in domestic proceedings
- in England it is simply when the police charge
- typical end is when the defendant is acquitted or convicted at their criminal trial
or at the end of the appeals procedure if national law provides appellate rights

Question 18

What are the criteria to consider whether criminal proceedings occurred within a reasonable time

Answer 18

Konig v Germany (1978) -

1. Complexity of the case
2. Behaviour of the defendant (that will be the applicant at Strasbourg) in the criminal proceedings
3. Responsibility for delays caused by state officials

Question 19

Which ground under Art.6(1) ECHR has been very successful?

Answer 19

Requirement to determine criminal charges within a reasonable time

• In 1990s – so many Italian cases coming up that this was a ‘practice’ of an Italian courts taking too long –> connected violations
• In 2018 over 40 filings against Ukraine

Question 20

Case which held that the Art.6 ECHR right to a fair trial requires independence

Answer 20

Incal v Turkey (1998)
FACTS - defendant charged with publishing subversive political leaflet. the court contained military judges.

HELD - this was a breach of art.6(1) requirement of an independent trial because military judges answer to the government and this is against the separation of powers and undermines the independence.

Question 21

Case which adopted the objective test for considering the impartiality of the judge to ensure the citizens right to a fair trial under Art.6 ECHR

Answer 21

Piersack v Belgium (1982)
FACTS - the judge in the case had been a senior prosecutor on the case before.

HELD - If you show sufficient objective evidence then it is up to the respondent state to show there were sufficient guarantees to overcome that bias.
- held that belgium hadn’t done enough to overcome apparent partiality

NB - the subjective approach has been used in some cases but is rare

Question 22

Leading case on ‘public pronouncement’ of a judgment within Art.6(1) ECHR

Answer 22

Pretto v Italy (1983)
HELD - public pronouncement could be met by providing printed copies of the judgment, don’t have to verbally read their judgments

Question 23

Case on the the presumption of innocence under Art.6(2) ECHR

Answer 23

Minelli v Switzerland (1983)
FACTS - Minelli and other journalists wrote critical articles on a man. the man was successful in bringing defamation claims against the other journalists. By the time the courts got to Minelli the claim had fallen foul to the limitation period. But the swiss court ruled that Minelli had to pay a significant amount of court costs in to proceedings anyway.

HELD - it violated his presumption of innocence to impose a judicial decision that reflected an opinion that he was guilty before he was able to have a trial.

Question 24

Leading case which is a dramatic example of a violation of Art.6(3)(b) ECHR - to have adequate time and facilities for preparation of defence

Answer 24

Ocalan v Turkey
FACTS - leader of a terrorist organisation was brought back to turkey to face trial. Prosecution documents amounted to 17,000 pages of detailed accusations but him and his lawyers were only given 2 weeks to look over them

HELD - this was a breach of Art.6(3)(b) ECHR

Question 25

FOUR cases on Art.6(3) ECHR

Answer 25

1. Artico v Italy (1980) - held that the convention rights must be interpreted and applied in a way which makes them practical and effective - not enough to just provide a legal aid lawyer if they do not help
2. Salduz v Turkey (2008) - extended right to access legal advice to while in police custody - unless there are compelling reasons to restrict the right and incriminating evidence given while restricting this right will be scrutinised
3. Ibrahim and Others v UK (2016) - held that the Salduz test was comprised of two stages.
4. Simeonovi v Bulgaria (2017) - extended Salduz even further with the Grand Chamber applying Ibrahim from time of arrest (before police questioning) –> but case lost because no evidence that was obtained during this time was used at trial

Question 26

What is the two stage test from Salduz v Turkey (2008) for individuals rights under Art.6(3)(c) ECHR?

Answer 26

set out in Ibrahim and Others v UK (2016)
- suspects of train bombings 2 weeks after the 7/7 attacks

1. Court had to decide if there were compelling reasons for delaying the applicant’s access to a lawyer.
2. Secondly, it was necessary to examine the overall fairness of the domestic criminal proceedings against the applicant to determine if the applicant had been unfairly prejudiced by the delayed access to a lawyer.

In the case they held that the 4th applicant who was an accomplice to the terrorists (rather than actual bomber) - the courts must apply a light touch approach to incriminating evidence obtained during the rare occasion the suspect is denied access to legal advice

Question 27

Case which held it wasn’t a violation of Art.6(3)(d) ECHR right to call witnesses and examine prosecution witnesses if the identities of the witnesses are concealed

Answer 27

Doorson v Netherlands (1996)

FACTS - Charged with gross drug supply offences, number of prosecution witnesses. Doorson’s lawyers were allowed to cross examine them but witnesses were there in court but their identities weren’t known.

HELD - this wasn’t a breach because the lawyer’s were able to cross examine
BUT… they did limit this ruling by saying that anonymous statements shouldn’t be the basis of the whole conviction

Question 28

Case which held it was a violation of Art.6(3)(d) ECHR right to call witnesses and examine prosecution witnesses if the identities of the witnesses are concealed if this prevents effective cross examination

Answer 28

Van Mechelen v Netherlands (1997)

FACTS - alleged to be a member of a violent armed gang of robbers, the Dutch police arrested him and brought prosecution. officers believed them and their families were at risk for making statements so there was a sound link between them and the trial, allowing them to be cross-examined without them being present in court

HELD - there was a breach because this prevented effective cross examination

Question 29

Case which is a controversial example of the Doorson rule under Art.6(3)(d) ECHR and an example of dialogue between domestic law and Strasbourg.

Answer 29

Al-Khawaja v UK (2011)

Strasbourg held it was a breach of Art.6(3)(d) ECHR to use evidence of a sexual assault from a woman who committed suicide and so wasn’t present for cross examination as a main part of the case
- The SC subsequently criticised this saying that Strasbourg didn’t understand English criminal procedures and held there wouldn’t be an absolute ban on the use of evidence which the witness isn’t present, there has to be consideration of the fairness.

Question 30

Leading case on the provision of a free interpreter under Art.6(3)(e) ECHR

Answer 30

Luedicke, Belkacem; Koc v Germany (1980)

HELD - it was a breach for German courts to charge 3 suspects for the interpreters provided because they were charged rather than acquitted.