ECHR Case + Framework Flashcards
Article 3 & 6 Prohibition of Torture
Jalloh v Germany
Any evidence obtained through measures that breach Article 3, is always going to be a violation of Article 6
Assessment of ill treatment
* Duration
* Physical and mental effects
* Victim’s Characteristics
Article 3 & 6 Prohibition of Torture
Gafgen v Germany
Not all violations of Article 3 ECHR makes a trial unfair IF the evidence obtained through a breach of Article 3 is not the sole use of evidence
*Article 5(3) Right to appear at trial within a reasonable time”
Letellier v France
Assessment of (reasonableness) of pre-trial detention
1. Relevant Time Period
- Start : Arrest
- End : Conviction
2. Asessment of reasonableness of this time period
- Relevant and sufficient grounfs to prolong pre-trial detention
1. Pressure on Witness
2. Risk of Absconding
3. Inadequacy of court supervision
4. Preservation of Public Order
Article 5(3) Right to be brought promptly before a judge
Brogan and Others v UK
No detention period over 4 days
Art. 6 Applicability - Determination of Criminal Charge
Oztürk v Germany + Engel Criteria
- Classification of Offence
- Nature of the Offense
* Offense should be criminal in nature
* Addressed to everybody
* Sanction is retributive
* Exception : Medical and Military personel - Nature & Degree of the severity of the sanction incurred
* The more severe the sanction - more likely it is a criminal case
Article 6(1) Right to be tried within a reasonable time
Venditelli v Italy
- Relevant Time Period
* Start : Charge Issued
* End : Final Judgement - Complexity of the Case
- Stake for the applicant
- Conduct of the applicant
- Conduct of the State
Article 6(1) Right to Independent + Impartial Tribunal
De Cubber v Belgium
Subjective vs Objective Approach
Subjective
* Assessment of personal conviction of a given judge in a given case
* Presume Impartiality
* Does this judge show clear signs of bias?
* If no clear signs of bias, move to objective step
Objective
- Possibility of Bias - Justice my not only be done but also must be seen being done
- Are there sufficient guarantees offered to applicant ro exclude legit. doubt about impartiality of the judge/court
Article 6(1) & 3(c) Right to Legal Assistance & Fair Trial
Salduz v Turkey
Access to layer should be provided from initial questioning unless circumstances of the case are compelling to restrict them
*Article 6(3)(a) Reclassification of Offence *
Salavdor Torres v Spain & Pelissier and Sassi v France
Reclassification of offence is sufficiently forseeable and it concerns an element intrinsic to the original accusation
- Original Offense
- Reclassification of Offense
Principle of Immutability
- Change of Accusation on possible only after the change has been communicated to the defence
Article 6(3)(c) Right to be present in an appeal hearing
Kremzow v Austria
In Nullity : Defendant has no right to be present; council presence is sufficient
In determining facts of the case : Defendant has right to be present
Article 6(3)(d) Right to Witness Attendance
Schatschaschwili v Germany
Al-Khawaja 3 Step Test
1. Was there a good reason for the non attendance?
2. Was th evidence sole or decisive?
3. Were there sufficient counterbalancing factors including strong procedural safeguards to ensure a fair overall trial?
* More weight, more counterbalancing factors
Article 6(3)(e) Right to be Present At Trial
Colozza v Italy
- Did the defendant show to have unequivocally waived their right to appear and defend themselves?
- Yes; Rights are waived lawfully; No right to be present
- No; - Were there Adequate attempted to contact applicant?
- Possibility of retrial after a trial in absentia
Article 6(3)(e) Right to be Present At Trial
LaLa v Netherlands
Right to defense cannot be taken away even if applicant waived right to be present at trial
Article 8 Right to be tried within a reasonable time
Niemitz v Germany & Khan v UK
Test for Applicability and Violation of Art. 8 ECHR
1. Is the alleged interference covered by the scope of 8(1)
- What is the interference? By who?
- How is the interference related to the scope of 8(1)
2. If yes, is the interference by public authority justified
- Is it in accordance with domestic law?
- Yes? Is it under the goals stated in Art. 8(2)
- Yes? Is the infringement necessaary in a democratic society? Is it proportianate to the legit aims pursued?
Obligation of Rights
Rantsev v Cyprus and Russia
- Obligation to respect ; State organs cannot commit violations themselves
- Obligation to protect; Protect owner rights against 3rd party interference
- Obligation to implement/fulfill; positive measures to give full efect and realization to these rights.
