Article 6 ECHR - Right To Fair Trial

Question 1

What were the facts of the oztruk v. Germany case?

Answer 1

The applicant is fined for a traffic accident (a ‘regulatory offence’) through a decision of an administrative authority. He challenged the decision at a hearing before a court, despite the prosecution service finding no reason to object to a purely written procedure. At this hearing, the applicant required the assistance of an interpreter. The applicant withdrew his objection, the decision to impose the fine was made final, and the court directed the applicant to bear the costs of the interpreter.

Question 2

What was the issue in the oztruk v. Germany case?

Answer 2

The question before the court is whether forcing the applicant to bear the cost of the interpreter violates Art 6(3)(e) ECHR (right to free assistance of an interpreter in criminal proceedings).

Question 3

How did the court define the term ‘charge in the oztruk v. Germany case

Answer 3

Charge: can official notification Geiger to an individual by the competent authority of an allegation that he has committed a criminal offence

Question 4

What was the framework analysis/Engels criteria for the oztruk v. Germany case?

Answer 4

I. Does it constitute an offence under national law?

II. Nature of the offence
A) does it apply to everyone?
B) does it have a punitive purpose(intention of imposing punishment)
C) do other countries consider such action as a criminal offence?

Iii. Nature and degree of severity of the sanction ( the more severe the penalty, the more likely it is to be criminal, based on greatest possible penalty, not what was imposed)

NB. Heck the criteria in this corner, and if one is fulfilled, there is no need to check the rest

Question 5

What was the conclusion in the oztruk v. Germany case?

Answer 5

Art 6 ECHR is applicable in this case, and forcing the applicant to pay for an interpreter clearly violates Art 6(3)(e) ECHR.

Question 6

What were the facts of the venditteli v. Italy case

Answer 6

The applicant had his apartment sealed on the grounds that he had violated planning regulations. He was unable to access his apartment for a period of 4.5 years due to slow legal proceedings. However, during this time a law came into effect which granted the applicant amnesty for the criminal offence he was charged with.

Question 7

What was the issue in the venditelli v. Italy case?

Answer 7

Was the time frame of the legal proceedings so unreasonable that it violated Art 6(1) ECHR, which guarantees a hearing within a reasonable time?

Question 8

What was the rule that was established by the vendetelli v. Italy case?

Answer 8

2 step approach:

1. What is the relevant time?
   -starting point= criminal charge
   -ending point= when the decision becomes final
2. Factors to assess?
   -complexity of the case?
   -conduct of state authorities?
   -were there long periods of state inaction?
   -conduct of the applicant?
   -what was at stake for the applicant? ( how inconvenient are the proceedings, e.g house closed, salary reduced etc.)

Question 9

What was the conclusion in the case of vendetelli v. Italy?

Answer 9

Conclusion: The Court found no interference with the applicant’s right to justice in a timely manner under Art 6(1) ECHR.-> much of the delay could be attributed to the applicants since he could have obtained a printed copy of the decision after it was made orally in court

Question 10

What was the key concept of the Saunders v. Uk case?

Answer 10

Self- incrimination -> art 6 (1) ECHR

Question 11

What were the facts of the Saunders v. Uk case

Answer 11

The applicant in this case was the CEO of Guiness. In an attempt to secure the take-over of another company, Guinness engaged in market manipulation. In response to this, the British Department of Trade and Industry (DTI) assigned an investigator who conducted oral interviews with the applicant, which he was obliged by law to participate. Transcripts of those interviews were then used as evidence by the Crown Prosecution Service to secure the applicant’s criminal conviction.

Question 12

What was the issue in the Saunders c. Uk case

Answer 12

Does the use of this evidence in the criminal proceedings violate the applicants right to a fair trial as protected by art 6(1) ECHR?

Question 13

What rule did the Saunders v. Uk case establish

Answer 13

Evidence which has an existence depending on the will of the accused falls within the scope of article 6(1) ECHR:

-applies for: statements (oral)
-does not apply for: DNA testing, blood or urine samples, documents obtained with a warrant etc.

Question 14

What conclusion was made in the Saunders v. Uk case

Answer 14

The applicants right to fair trial (right to non-self incrimination) under art 6(1) was violated.

-> because the While the statements provided by the applicant to the DTI were exculpatory in content, they
had the effect of making him appear less credible before the jury, which made them incriminatory in nature.
The applicant had no choice but to participate in the interview with the DTI, or he risked being held in contempt of court and could suffer penalties.-> not voluntary

Question 15

What is the legal principle of non-incrimination?

Answer 15

Non-incrimination refers to the legal principle or protection that individuals cannot be complelled to make statements or provide evidence that may incriminate them in legal proceedings. -> a fundamental right that includes voluntariness(statements), privilege to refuse to answer , can be invoked during police interrogations, court proceedings and other legal contexts.

Question 16

What was the concept of jalloh v. Germany case

Answer 16

How does evidence obtained in VIOLATION OF ARTICLE 3 relate to the RIGHT TO FAIR TRIAL IN ARTICLE 6(1) ECHR?

Question 17

What were the facts of the jalloh v. Germany case

Answer 17

In this case, the applicant is caught by police in the act of exchanging drugs for money. When confronted by police, the applicant swallows a plastic baggie containing the drug. The applicant is taken to the hospital, and administered an emetic through a tube in his nose, in order for him to vomit up the drug. He does not consent to this procedure and is held down by officers while it is performed. He vomits up the drug, and it is used as evidence to secure his criminal conviction.

Question 18

What was the issue int he jalloh v. Germany case

Answer 18

Was the evidence obtained in violation of Art 3 ECHR which protects against inhumane or degrading treatment?

If so, does using that evidence to secure the applicant’s criminal conviction constitute a breach of the applicant’s right to a fair trial under Art 6(1) ECHR?

Question 19

Why was the application of article 6(1) in the jalloh v. Germany case different to the Saunders v. Uk case

Answer 19

The Court asserts that the facts, in this case, fall within the scope of self-incrimination, and therefore engage Art 6(1), as the evidence has three distinct differences from the kind of criminal evidence (DNA sample collection) excluded from self-incrimination in Saunders v. UK( difference between the two cases) :

A) the measures were used to procure material evidence, rather than to retrieve material for forensic examinations

B) the measures involved a much greater degree of force

C) the measures violated art. 3

Question 20

What rule with regards to article 6(1) (not 3) was established by the jalloh v. Germany case?

Answer 20

Criteria to determine violation of art 6(1)

-nature and degree of compulsion

-weight of the public interest and possible punishment (he was just punished for drug dealing which is not very serious with regards to society)

-existence of relevant safeguards in the procedures (e.g domestic law-> in this case jalloh didnt know the language so couldn’t invoke this)

-the use to which the material was put in trial

Question 21

What was the conclusion of the jalloh v. Germany case

Answer 21

The court concluded that there was a violation of art 3 and art 6(1)

Question 22

What were the key concepts of the garden v. Germany case

Answer 22

-evidence obtained in violation of art 3

-how does such evidence relate to art 6(1)

Question 23

What are the facts of the gafgen v. Germany case

Answer 23

The applicant in this case has murdered a child. Despite the child already being dead he attempts to extract a ransom from the parents, but is arrested. He consults with a lawyer for 30 minutes. At this point the police believed the child to still be alive, so the Deputy Chief of Police in Frankfurt ordered a subordinate officer to threaten the applicant with considerable physical pain
(including sexual violation) if he did not disclose the child’s whereabouts. In the course of this
questioning, the officer hit the applicant several times. Because of this threat, the applicant disclosed
the location of the boy’s body, and went with officers to where they uncovered the child’s body. After returning to the police station, the applicant is again allowed to consult with his lawyer.

Question 24

What was the issue in the gafgen v. Germany case

Answer 24

Issue: Did the threats issued by police constitute torture or inhumane or degrading treatment such that they violated Art 3 ECHR?
If so, did these threats influence the fairness of the trial as to constitute a violation of Art 6(1) ECHR.

Question 25

What rule did the gafgen v. Germany case establish?

Answer 25

A violation of art 3 doesnt automatically mean violation of art 6 -> torture has more severity than inhuman or degrading treatment thus there is a an automatic breach of art 6 if torture is used

Rule(art 3) : criteria to detriment whether a treatment has attained the minimum level of severity to bring within the scope of article 3

1. Duration of treatment 

 2. Physical/ mental effects 

 3.In some cases: sex, age and state of health of the applicant 

 4. Purpose for which the treatment was inflicted together with intention or motivation behind it 

Rule(art 6(1)) : to detriment if an interference with the right to silence or privilege against self- incrimination constitutes an art 6(1) violation, the court must assess:

   1. The nature and degree of compulsion (e.g from the gafgen v. Germany case: the nature of the compulsion was quite severe, such that it violated art 3 ECHR) 

    2. The existence of relevant safeguards 

    3. The use to which the material was put

Question 26

What conclusions as made in the case gafgen v. Germany?

Answer 26

There has been a violation of art 3 ECHR but not of art 6(1) ECHR -> becuase:

• The applicant had opportunities to challenge the use of the evidence in his criminal trial, and
part of the evidence was in fact excluded. .

• The testimony provided by the applicant under threat of violence was excluded from
admissibility, and not used to secure his conviction. The finding of the child’s body, despite
being based on the statement provided, was not excluded from admissibility given that the
body would likely have been found anyways.

Question 27

What were the facts of the case Allan v. UK

Answer 27

Facts: Based on an anonymous tip, the applicant is arrested and remanded in custody on allegations of murder. When questioned by police, the applicant availed himself of his right to remain silent. Police put recording equipment in the cell where he is being held, and they assigned a long-time police informant as his cell mate. The police coached the informant to get the applicant to reveal information. The informant claimed that while the recording devices were not present, the applicant admitted to being at the scene of the alleged murder. After a voir dire procedure, this testimony by the witness was used to secure the applicant’s conviction.

Question 28

What was the issue in the Allan v. Uk case

Answer 28

Does the use of these recordings (which violate Art 8 following Khan v. UK) to secure the conviction of the applicant constitute a violation of his right to a fair trial under Art 6(1) ECHR?

Question 29

What was the rule of Allan v. Uk

Answer 29

Rule: to determine if an interference with the right to silence or privilege against self incrimination constitutes an art 6(1) violation the court assesses:

1. Nature and degree of compulsion
2. Weight to the public interest
3. Existence of relevant safeguards in the procedures
4. Use to which any material so obtained is put in trial

-> Where the police employ an informant to elicit information from a suspect, the right to silence is infringed only if the informant is acting as a direct agent of the state, and the information revealed would not have come to light but for the instruction of state authorities.

Question 30

What conclusions as made in the Allan v. Uk case?

Answer 30

There has been a violation of art 6(1) ECHR.

-> no statutory provisions in the uk regulating the use of recording devices by police, thus its not in accordance with domestic law

-> the Court finds that the informant was acting as a direct agent of the state in this case, given the high degree of coaching he received from police. Therefore, the information he provided to the informant cannot be considered voluntary, and given that he lacked all safeguards of a typical interrogation, there has been a violation of Art 6(1) ECHR.

->The evidence was the basis for the applicant’s conviction

Question 31

What were the facts of the salduz v. Turkey case

Answer 31

Facts: The applicant was arrested at a PKK protest. He was arrested, and questioned without having consulted a lawyer. In the course of this questioning, he confessed to writing an illegal banner. On the same day he was brought before an investigating judge, where he retracted his confession and claimed that it had been extracted from him through beating. He was remanded into custody, and only then did he have access to a lawyer. He was convicted on the basis of his earlier confession, and the similarities between his handwriting and the writing on the banner.

Question 32

What was the salduz v. Turkey case?

Answer 32

The applicant alleged that there had been a violation of his right to access to an attorney as protected by Art 6(3)(c) ECHR.

Question 33

What rule did the case of salduz v. Turkey establish

Answer 33

-Access to a lawyer should be provided from the first interrogation of a suspect
by the police

-Even where compelling reasons may exceptonally justfy denial of
access to a lawyer, such restricton must not prejudice the right to a fair trial

-Incriminating statements made during police interrogation without access to a lawyer cannot be used for conviction

UNLESS:

1. There are compelling reasons to restrict this right OR
2. The suspects has waived their right to a lawyer. Such a waiver must be:
   -unequivocal ( clear and definite)
   -voluntary ( made willingly)
   -knowing and intelligent ( understood by the person)
   -the consequences of waiving the right must be foreseeable

Question 34

What was the conclusion that was made in the salduz v. Turkey case?

Answer 34

Conclusion: there was a violation of art 6(3) (c) in conjunction with art 6(1) ECHR.

-> The applicant in this case had no access to a lawyer during his first interrogation. There were no compelling reasons to restrict this right, and he did not waive his right to consult a lawyer. This violation of Art 6(3)(c) fundamentally affected the fairness of the trial.

Question 35

What was the conclusion that was made in the salduz v. Turkey case?

Answer 35

Conclusion: there was a violation of art 6(3) (c) in conjunction with art 6(1) ECHR.

-> The applicant in this case had no access to a lawyer during his first interrogation. There were no compelling reasons to restrict this right, and he did not waive his right to consult a lawyer. This violation of Art 6(3)(c) fundamentally affected the fairness of the trial.