Cases Flashcards
ECtHR, Gäfgen v. Germany
Prohibition of torture is absolute right and no derogation allowed. Torture is within the scope of art. 3 if minimum level of severity is reached:
(gäfgen test)
1.Intentional infliction of severe pain
- Severity of treatment
- Aim: obtaining information, punishment, intimidation
ECtHR, Kruslin & Huvig v. France
Kruslin test
The conduct has to be in accordance with national law:
1. national legal basis
2. That is accessible, precise and foreseeable
3.adequate guarantees against abuse:
a category of people, nature of the offence, maximum duration, procedure followed (need for prior judicial authorization), record keeping and precautions
ECtHR, Buck v. Germany
”Necessity” implies that the interference corresponds to a social need and is proportionate to the legitimate aim pursued. To determine this:
-Seriousness of the offence
-manner in which the interference was made
-circumstance in which the order was issued (evidence available at the time)
-Effects on individuals
ECtHR, Modestou v. Greece
ADEQUATE QUARANTEES AGAINST ABUSE (search of premises)
Authorities need to provide relevant and sufficient resons to justify issuing a search warrant. Warrant needs to contain:
1. Scope of search
2. Justification of search
3. Precise description of what can be searched
Making it possible to verify wheter the officials who executed it complied with the scope of the investogation thus authorised
If no prior judicial authorization is possible: ex post judicial control and precense of affected person, prosecutor or third persons
ECtHR, Dragojevic v. Croatia
QUARANTEES AGAINST ABUSE (interception of telecommunications)
Judicial authorisation must contain detailed reasoning on specific grounds and not stereotypical abstract sentences
Czarnecki v. Poland
Continued detention is justified only if there are specific indications of a genuine requirement of public interest and that if the interest outweights individual liberty.
There are 4 acceptable reasons for refusing bail:
-Risk of absconding (character, personal ties to commonity, job, family, integrated to society etc.)
-Risk of obstruction of justice (factual evidence not abstract danger)
-Risk of re-offending (prior record possible indicator)
-Preservation of public order (factual evidence of actual and existing danger)
Magee and others v. The uk
The purpose of Art. 5(3) ECHR (right to liberty) is to ensure that arrested persons are physically brought before an independent judge promptly and automatically. The judge needs to have the power to order release.
In addition, ECHR says that has to happen in less than 4 days but court held in this case that depending on circumstances, offence and prior custody periods 4 days can be violation so has to happen as soon a possible.
Buzadji v. Moldova
Grounds of public interest start to apply from first appearance (set in czarnecki)
Kovrov and others v. Russia
No inconsistence in reasoning -continuation of judgements have to make sense
Salduz v turkey
(salduz principle)
1. The right to lawyer is triggered from first interrogation.
- Incriminating statements made during police intereogation without access to a lawyer violate 6§1 when used for a conviction —> the evidence has to be excluded if the right has not been respected
Right to a lawyer is autonomous and essential right of PRE-TRIAL stage
Ibrahim and others v uk
Restrictions on access to lawyer are permitted only in exceptional circumstances, must be of temporary nature and must be based on an individual assesment of the particular circumstances of the case. Compelling reasons must relate to an urgent need to avert serious adverse consequences for life, libery or physical integrity (geographical remotness)
No compelling reasons doesn’t lead automatically to a violation but tip the balance in favor or violation
Beuze v belgium
In determining the prejudice to the defence rights, a list of factors (e.g. vulnerability of the suspect, quality of the evidence, nature of the statements (incriminating?), use of evidence and guidance given to jury, weight of the evidence) must be taken into account. Overall assesment of the trial
Soytemiz v turkey
Removal and replacement was unlawful. Right to lawyer means consultation before interrogation, presence and participation during interrogation.
Bjarki H. Diego v. Iceland
You have a right to lawyer even if not detained (interrogation). There just has to be a criminal charge which exist from the moment that individual is officially notified by the competent authority of allegations against him or from the point at which his situation has been substantially affected
Natsvilishvili and togonidze v. Georgia
Plea agreement is not necessarily a violation of fair trial as long as:
Consent has to be unequivocal, voluntary and in full awareness of facts and consequences
Presence of a lawyer, consent more than once and before judge is needed
There also has to be sufficient judicial review of the content and fairness of the process: court is not bound by agreement, review of charges and evidence and adversarial guarantees (right to be heard…)
Zlicic v. Serbia
When article 3 ECHR is breached, this leads automatically to a breach of article 6 ECHR due to breach of procedural rights.
Statement (confession) obtained by inhumane or degrading treatment is not submissible.
Direct evidence (corpse, cocaine…) that was obtained as a result of an act that qualified as unhuman treatment, BUT did not have an impact on the convection of sentencing, does not breach article 6, ECHR (so this kind of evidence can be used depending on the weight it has on the putcome of the case)
Al khawaja en tahery v uk
Requirements to justify absent witness (Al-Khawaja test):
-Good reason for non-attendance
E.g. Death
-General fear (there must be objective grounds supported by evidence for that fear). Fear attributable to the defendant. Other measures, witness anonymity, had to be impractical or inappropriate
-”Sole or decisive’ rule
Sole→ the only evidence against the accused
Decisive → the evidence is determinative of the outcome of the case
Conviction based solely or to a decisive extent on evidence of an absent witness would be unfair.
There must be other sufficient counterbalancing factors to ensure a fair trial, otherwise there is a breach of Art. 6
Ellis, simms and martin v. Uk
Al khawaja test used for anonymous witnesses too (valid reasons for anonymity, evidence sole or decisive, counterbalancing factors…)
Scharschaschwili v germany
Settled the relationship of the different steps of Al khawaja test: not passing step 1 or 2 doesn’t automatically lead to violation of right to fair trial but means that there need to be very strong counterbalancing factors
Fikret karahan v turkey
Significance: in this case the problem was that the defendant wasn’t in court (his lawyer was) and the witness was there—> court still considered to be violation of art 6 (3) (d)!
The court found that in this case it would have been important to the defendant/ winess to confront and be able to recognize each other because there might have been a case of mistaken identity. Having a lawyer cross-examine is not enough in all cases (needs to be evaluated case by case).
Nitumescu v. Romania
In assessing fairness of the proceedings, the court need to consider:
1. Did the defence had the opportunity to challenge the evidence?
2. Is the evidence reliable and strong?
Prade v germany
added a third criteria to the earlier established in nitulescu: 3. Is there public interest weighted against rights of the accused? Prosecuting drug possession vs applicants right to a lawfully gathered evidence)
O’hara v uk
Reasonable suspicion exists when there are facts that would satisfy an objective observer that a person may have committed a crime
Allan v. Uk
Duress applied directly to the suspect or when the suspect have chosen to remain silent and the authorities use subterfuge to elivit a confession or other statement of incriminatlry nature.
Allan criteria (balanced not cumulative):
1. nature and degree of compulsion (age, character, type of compulsion, lenght and climate of questionning, breaks)
2. Procedural safeguards (lawyer)
3. how are materials used
