Right to a fair trial under Art. 6 (criminal limb)

Question 1

What is Ocalan v Turkey about?

Answer 1

Relates to guarantee under §3 - right to legal defense

Defendant was only allowed a 2 hour visit from his lawyer pr. week. The Government argued that the low frequency of visits were due to the defendant being detained on an island with few ferry departures.
Court stated that the Government should have provided transportation and that the few ferry departures did not have to restrict the time on the actual visits.

Violation of Art .6

Question 2

What is Jalloh v Germany about?

Answer 2

Relates to the admissibility of evidence obtained under ill - treatment

Applicant was arrested on suspicion of drug dealing and was seen swallowing a small plastic bag upon arrest. The police wanted to secure evidence in the case, so the prosecutor authorized the use of an emetic in order to make the applicant throw up the bag. The applicant refused, so the emetic was administered with force.

The Court as a result declared the evidence inadmissible in court, but did not state that real evidence obtained in violation of inhumane or degrading treatment would ALWAYS be in violation of Art. 6.
But evidence obtained under torture will always be inadmissible in a court.

Question 3

What are the implicit rights in Art. 6?

Answer 3

Access to Court
- Golder v UK
Effectiveness of proceedings
- outcome of trial must be enforceable
General fairness of trial
- Appearance in person
- Effective participation
- Equality of arms (admissibility of evidence, access to evidence, principle of immediacy, 
- Right to remain silent/principle against self - incrimination
- Adversarial nature of proceedings
- Issuance of reasoned judgement
- Res judicata

Question 4

What does adversarial nature of proceedings mean?

Answer 4

Protects the right to comment on arguments and evidence brought forth by the opposing party and also to get access to all evidence (also protected by equality of arms)

Question 5

What are the rules regarding admissibility of evidence in court obtained in violation of Art. 3?

Answer 5

If the evidence is not admissible the use of it during trial will breach Art. 6

Real evidence and confessions are two very different things, hence different rules regarding admissibility

Evidence obtained under inhumane or degrading treatment?
- might be admissible, IF it did not have any bearing on the outcome of the trial, i.e. it does not constitute the basis of the conviction or a bearing element

Evidence obtained under torture
- never admissible

Confession obtained under inhumane or degrading treatment
- never admissible

Confession obtained under torture
- never admissible

Question 6

Is the right for the defendant to access all evidence used in the case absolute?

Answer 6

No. Access to all evidence is the main rule, but it’s acceptable to limit the defense access to information used in the case due to national security or protection of witnesses or investigative procedures.

However, there must be certain safeguards put in place in order to maintain the defendants interests.
This requires judicial review with the decision to keep evidence from the defendant and to make sure that this does not mean that the defendant is effectively robbed of the opportunity to properly argue his case.

Question 7

Does §1 protect the right to remain silent?

Answer 7

Yes. The Court has recognized the right to freedom from self - incrimination as a element under “general fairness of proceedings” in Saunders v UK

Question 8

What did Saunders v UK concern?

Answer 8

The right to remain silent as a protected right under §1

It was an offence under domestic law to refuse to answer questions posed by certain police officials. The applicant thus had the choice of incriminating himself or being faced with a another charge.
The Court stated that the right to remain silent is recognized standard of international law and is crucial in a criminal trial.

Question 9

What did Saunders v UK concern?

Answer 9

The right to remain silent as a protected right under §1

It was an offence under domestic law to refuse to answer questions posed by certain police officials. The applicant thus had the choice of incriminating himself or being faced with a another charge.
The Court stated that the right to remain silent is recognized standard of international law and is crucial in a criminal trial and thus must be read into Art. 6

Question 10

What does “principle against self/incrimination”/right to remain silent entail?

Answer 10

It means that the prosecution must seek to prove their case without resorting to methods of coercion or oppression against the will of the accused

Question 11

When is the right to remain silent triggered?

Answer 11

As soon as statements given may be used in a criminal trial against you

Does not matter if the statements were given before criminal criminal proceedings were initiated

Question 12

What does the right to remain silent protect?

Answer 12

Right not to:

• produce incrimination documents
• give statements to authorities
• be subjected to bodily samples?

Question 13

Can you refuse all body samples with reference to right to remain silent?

Answer 13

No.

You can’t refuse procedures such as ordinary blood and spit samples under §1

Question 14

Does the right to remain silent protect against procedures for obtaining real evidence through inference with the accused’s bodily integrity?

Answer 14

Yes.
Traditionally the right has only protected from authorities forcing someone to speak against their will.

But through its case law the Court has broadened the meaning of “self - incrimination” and extended the protection to encompass interferences with the defendants physical integrity in order to produce real evidence

I.e., this may violate the right to remain silent

Question 15

Case law on this?

Answer 15

Jalloh v Germany - landmark case - extended scope of right to remain silent from Saunders v UK

Applicant was forcibly administered an emetic in order to retrieve evidence from his body.

Up until this point the Court had not considered real evidence, i.e., evidence with an existence independent from the will of the accused, to be protected by the right to remain silent (stated in Saunders v UK)

But the facts of this case deviated on several central elements from previous case law.

The evidence retrieved from the applicants body was not the usual blood or spit samples, but real evidence and furthermore it was retrieved from the applicants body using more force and invasiveness to the bodily integrity of the accused, than what is needed for retrieving blood, spit or urine samples
Also, the evidence was retrieved in violation of Art. 3.

These factors led the Court to state that the evidence was obtained in violation of the applicants right to remain silent

Question 16

Does the right to remain silent apply in all criminal cases?

Answer 16

No.

In criminal cases concerning driving offenses there exists an obligation to clarify who was driving the car at the time and in cases concerning tax offenses, the tax payer is obligated to make a tax declaration.

This means, that even though these are criminal cases and thus fall within the scope of Art. 6 (criminal limb) the entire scope of the provision is not applicable in these cases.

Question 17

What does Art. 7 protect?

Answer 17

The principle of legality.
Demands clarity of law (accessible and foreseeable, i.e,, requirement to a certain quality of law - effectively the same requirement as in Art. 8 - 11)

The provision contains two elements of prohibition:

1) Prohibits retroactive criminalization of acts, i.e.,criminal convictions not based on any law

2) Prohibits criminalization of a acts not criminal at the time they were committed
- either due to legislation taking effect after the act was committed or due to already existing legislation subsequently widening its scope to entail the act

Art. 7 also prevents imposing harsher punishments for a crime than what was allowed at the time it was committed!

Question 18

Difference between Art. 6 and 7?

Answer 18

Art. 6 is a procedural rule, focusing on procedural fairness of criminal (and civil) trials, while Art. 7 is a substantive rule, focusing on substantive fairness of criminal proceedings

Question 19

What does Art. 4 of Protocol 7 protect?

Answer 19

It protects against double punishment for the same case (“double jeopardy rule”)

Only applies to criminal cases

Question 20

Does the rule protect against being convicted twice in the same case in all Contracting States?

Answer 20

No.

It only protects against double - conviction within the same jurisdiction

Question 21

Does it mean you can’t be convicted twice for the same crime?

Answer 21

No.

It means you can’t be convicted twice on the same facts - not that you can’t be convicted twice for the same crime

Question 22

Does Art. 4 of Protocol 7 prevent the reopening of criminal cases?

Answer 22

No, it does not prohibit the reopening of a case due to new evidence emerging

Question 23

When does the rule in Art. 4 of Protocol 7 apply?

Answer 23

The rule prevents a new conviction, as soon as the prior conviction or acquittal has acquired the force of res judicata

Question 24

Are there any exceptions to Art. 7?

Answer 24

Yes.

Crimes that are illegal under principles of international law recognized by civilized nations, such as war crimes, genocides ect., can always be punished, regardless of their status as illegal under domestic law at the time they were committed.

As long as they were prohibited under the principles of international law at the time, they can’t be punished.