Topic 3: Articles 5 & 6

Question 1

Highlight and explain the cases on the meaning of liberty

Answer 1

Guzzardi v Italy (1980) - Pursuant to special provisions of Italian law enacted to deal with suspected Mafia members, G was made to live in a given location, had a curfew, had to regularly check in with the police etc, which went on for over a year. G argued breach of A.5 but Gov argued liberty had not been lost. SC said liberty included but was not limited to physical restraint, other restrictions can fall within, and these measures which were tantamount to being in an open prison did so. No exceptions so breach.

Georgia v Russia - 3rd IS case to reach judgment. A.5(1) ‘in accordance with a procedure prescribed by law’. Russia argued that actions in arresting, detaining and deporting thousands of georgian nationals was lawful in Russian law. SC said that the point of the provision is to prevent arbitrary interferences into liberty, even though actions lawful in Russia, GC applied European notion of lawfulness and decided that deprivation of liberty was arbitrary act.

Question 2

What particular problem has the SC sought to address in its interpretation of A.5?

Answer 2

The phenomenon of forced disappearances. SC created procedural obigations and also a positive obligation:

Kurt v Turkey - unacknowledged detention of an individual is a complete violation of A.5.

• When authorities assume control of an individual they must account for their whereabouts.
• A.5 requires the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since.”
• Turkey failed all 3 on facts.
• El-Masri v Macedonia. EM was German national in Macedonia in 2003. He was detained by security and the authorities denied having any knowledge of this (which the SC later rejected as false). EM was allegedly held in a hotel by armed officials for weeks and then handed to the CIA, who beat him, stripped him and put him on a plane to Afghanistan where he was questioned for months. He was then flown to the countryside and dumped.
  SC found Macedonia to be liable for the torture by the CIA and the detention in the hotel, which was contrary to A.5. Significantly, the GC also held Macedonia to be liable for subsequent CIA detention since they ought to have foreseen this. ECHR states could not breach the convention by complying with the war on terror.

Question 3

What is the case law on the following A.5 gounds on which detention can be justified?:
(a) After conviction by a competent court

(b) For non-compliance with the lawful order of a court/to secure the fulfilment of any obligation prescribed by law

Answer 3

(a) After conviction by a competent court
- Weeks v UK - slight extension of the exception. Both original detention and recalling W for breach of parole provided under discretionary life sentence for armed robbery were covered under exception.

(b) For non-compliance with the lawful order of a court/to secure the fulfilment of any obligation prescribed by law
- Gatt v Malta - G was charged with drugs trafficking offences. Bail was granted pre-trial with a guarantee of £23,000. G breached night curfew once. At trial G was ordered to pay and when he couldn’t he was given 2000 days in prison for this failure pursuant to the Maltese tariff system. Case brought to SC. Even though the actions were lawful in Malta the SC applied its own lawfulness test which included a proportionality test, in this case the measures were disproportionate.

Question 4

What is the case law on the following A.5 gounds on which detention can be justified?:

(c) For the purpose of bringing a person before the competent legal authority on reasonable suspicion of having committed an offence

Answer 4

(c) For the purpose of bringing a person before the competent legal authority on reasonable suspicion of having committed an offence

• 2 grounds of justification fall under this exception.
• Fox, Campbell & Hartley v UK (1990) 3 applicants arrested separately in NI on suspicion of terror offences. The British Gov provided the explanation that 2 of them had previous terror convictions in the past. The government had further intelligence on all 3 but refused to disclose this as it would compromise their operations. The SC held:
  “32. . . .having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence.”
  The test is objective and the majority of the SC were not satisfied at the level of objective evidence. Previous convictions do not justify ongoing future arrests in themselves.
• Preventive detention.
• S.,V. and A. v Denmark - 3 suspected football hooligans arrested for allegedly inciting violence at an international match. Police had no intent to charge or convict but kept them for 8 hours to avoid violvence before releasing them.
  GC confirmed that preventive detention provided an alternative grounds of justification. The police could arrest and detain in relation to the prevention of a specific crime providing it was merely for a few hours, the arrest need only not be arbitrary or in bad faith. It would otherwise be imractical for police to maintain order and protect the public.
• Recently applied in GC in case of ‘zombie picnic’ protest at Prince William’s wedding.

Question 5

What is the case law on the following A.5 gounds on which detention can be justified?:

(d) Detention of minors for the purpose of educational supervision

Answer 5

(d) Detention of minors for the purpose of educational supervision
- Bouamar v Belgium. B was a 16 YO regularly charged and convicted of offences in Belgium. Every time he was ordered detention in a special unit for up to 2 weeks. These were always full and so B was placed in a normal prison. The SC ruled that the state had to provide special detention and could not just put minors in a normal prison.

Question 6

What is the case law on the following A.5 gounds on which detention can be justified?:

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.

(Discuss unsound mind and acoholics only)

Answer 6

(e) Detention of. . .persons of unsound mind
- Winterwerp v Netherlands (1979). W had serious mental health issues and his detention was ordered under emergency statutory powers as confirmed by a Dutch court. Case brought to SC. The SC could not define the notion of unsound mind: “37. . . .it is a term whose meaning is continually evolving as research in psychiatry progresses. . .”
SC did however state that it was a medical concept and so any decision had to be made by a medically trained person. Also, the mental illness specifically in question had to be one serious enough to require detention. The Dutch court had satisfied these requirements.

This was an important decision as many persons such as Soviet dissidents had been locked up for being of UM just for disagreeing with the state.

Alcoholics
- Litwa v Poland. Elderly Polish man put in sobering up box established by law for a few hours after argument with Post Office staff. SC held as a matter of law that the exception was not limited to those medicaly diagnosed as aloholics but also those who are a threat to the public or themselves as a result of alcohol. A proportionality standard must also be applied and on the facts the steps taken were disproportionate.

Question 7

Discuss the cases on: A.5(1)(e) infectious diseases and vagrants.

Answer 7

lawful detention of persons for the prevention of the spreading of Infectious diseases
- Enhorn v Sweden. E was HIV positive and had previously unintentionally infected another. Authorities imposed requirements on him which made him attend regular check-ups which E eventually stopped attending. His detention was ordered and repeatedly renewed by the court for several years.

The SC held that there was no complete definition of IDs but HIV was one. The SC applied the proportionality test and said that complete detention on the grounds of ID must be a measure of last resort. The authorities had failed to consider alternatives that could be used.

Vagrants
-  De Wilde, Ooms & Versyp v Belgium (Vagrancy cases) (1971) - this exception was put in in the early days of the convention when eastern European vagrancy was a large issue. In Belgium at the time there was no social welfare system, vagrants could hand themselves into the police to be detained as a vagrant for up to 2 years after a court ruling. The SC was willing to accept the Belgian definition of a vagrant as being a person with no home, income or resources and held that they could be detained.

Question 8

What is the case law on the following A.5 gounds on which detention can be justified?:

(f) Arrest/Detention to prevent unlawful immigration/of persons against whom action is being taken with a view to deportation/extradition

Answer 8

(f) Arrest/Detention to prevent unlawful immigration/of persons against whom action is being taken with a view to deportation/extradition
- Bozano v France (1986). B was an Italian national charged with serious crimes in Italy. Italian legal system allowed him to not be in detention while trial was going on. Convicted in absentia. B had fled the country, years later the authorities found that B was living in France. French courts refused to order extradition, because under French law there had been no fair trial. With hindsight, about 3 weeks after this refusal, internal minister in France exercised deportation order, nearest border was Spanish border. French police, acting on deportation order, transported him all the way to border with Switzerland, where he was taken into custody and then sent to Italy. B’s lawyers challenged these acts.

SC classified the issuing of deportation order as an ‘arbitrary action’ so the acts were not lawful by European standards. This was a ‘disguised extradition’ contrary to what the courts had decided.

Question 9

What right does A.5(2) provide and what case law is there on it?

Answer 9

A.5(2) (rights for those detained). Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

• Fox, Campbell & Hartley v UK. Suspected NI terrorist case. POs simply told all three that they were arrested on suspicion of being terrorists. After arriving at police stations they were questioned about individual terrorist crimes. FCH argued that this was a breach and that they should have been given detail at time of arrest. SC said as a matter of law:
  “40. . . .by virtue of paragraph 2 any person arrested must be told, in simple non-technical language that he can understand, the essential legal and factual grounds for his arrest. . .”
  In terms of the amount of information, A.5(2) could be satisfied by being told the type of offence initially and then being told the detail later, consequently the SC found no breach of A.5(2).

SC subsequently expanded A.5(2) to impose the obligation where people are detained under civil powers:

• Van der Leer v Netherlands (1990). VDL voluntarily went to mental health hospital. While in there the court ordered compulsory detention on basis of her condition. Only 10 days after when VDL was told that she was not allowed to leave. Argued that this was a breach of A.5(2) and that she should have been told. SC extended the obligation beyond criminal detention alone. You must know the reasons behind your detention if you are to challenge these under A.5(4).

Question 10

What right does A.5(3) provide?

Answer 10

Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

Question 11

What case law is there on A.5(3)? (Only first identifiable right).

Answer 11

Two separate rights can be identified. This Article only applies where a person has been arrested under A.5(1)(c):

Right to be brought promptly before a judge/judicial officer
- Brogan & Others v UK. NI terrorism case concerning promptness. NI law allowed detention for up to 7 days of questioning. At the end the suspect had to be brought before court or released without charge. All applicants involved had been held for less, 4 days 6 hours to just under 7 days were the periods of detention. Case brought). British government said that the difficulties in dealing with terror threats should be recognised to allow special treatment. SC acknowledged these difficulties but said that the right was so important that promptness had to be interpreted strictly, but SC did not lay down how long this is. On the facts, SC found that there was a breach in the case of each of the applicants, so in the context 4 days and 6 hours was too much.

• Nikolov v France (2016). N suspected of being member of international sex trafficking gang, France found out N was in Germany and N was handed over and transferred to Lyon via Strasbourg. When his case was first dealt with N had been in custody 3 days, 23 hours and 11 minutes. N argued this was not prompt. France said account must be had for the lengthy moving process between countries etc. SC said that 4 days should be the maximum time before which you can see a judge, but on the facts of individual cases, states could justify it taking up to 4 days with good reasons on facts. France had good enough reasons as to why there was a delay, no breach. 49 more minutes would have been a breach.

Question 12

Who can be a judge/judicial officer for the purpose of A 5(3)?

Answer 12

Assenov v Bulgaria (1998) A was suspected thief. Person who held office as an ‘investigator’ and under law had the power to order detention of persons did so. A’s lawyer sought to argue that they did not meet judicial officer requirement, as they were not sufficiently independent, investigators were subordinate to prosecutors under law). SC upheld this challenge.

Question 13

What case law is there on A.5(3)? (Only second identifiable right).

Answer 13

Bail (qualified right for people arrested for a criminal offence).

• Wemhoff v Germany (1968). Businessman refused bail and refusals uphelf by court for 4 years in belief that he had the resources and contacts to flee the country.
  SC held that states which refuse bail prior to trial must provide good reason. The obligation is on the state. SC accepted that given W’s contacts and resources there was good reason to refuse bail. The second part of the judgment was that states must justify the reasonableness of the length of time for which you are refused bail. Majority of the court found that 4 years was a reasonable period. These 2 criteria have been continuously applied subsequently but the court is now much stricter on states in applying them:
• Kalashnikov v Russia. K was Russian businessman suspected of serious criminal behaviour. Not detained in early stages of investigation but police thought that K was trying to destroy evidence so a request was made to refuse bail. Russian courts held that K should be detained without bail. Repeated refusals of bail applications ensued. 4 years passed again). SC said that in early stages of investigation there was good reason for detention, but as the years went by this reason got weaker as more evidence was collected. Good reason not present throughout period of detention. The length of time was also not reasonable under the second criteria.

Question 14

What right is provided for in A 5(4)?

Answer 14

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

Described as the ECHR version of the common law remedy ‘habeas corpus’. A right of access to a court to rule on the lawfulness of detention.

Question 15

What is the general case law on A.5(4)?

Answer 15

Vagrancy Cases – argued that given the length of time for which a vagrant could be detained, a more elaborate court procedure was needed to impose this. SC held:
“76. . . .must provide the fundamental guarantees of procedure applied in matters of deprivation of liberty.”
SC found that given C’s could be detained for up to two years, an extensive court procedure was needed. There were weaknesses in the Belgian procedure such as absence of legal representation for the vagrants, and that there was no power of adjournment to allow witnesses to give evidence etc. A.5(4) requirements not met.

A and Others v UK (2009). After the Chahal case the British Government set up a special body called the special immigration appeals commission to operate across 2 stages. Where the government wished to deport on foreign security grounds they can decide their own lawyer. Then in ‘close stage’ special lawyers would act on behalf of the individuals but would have no interaction with the suspects themselves. Security information disclosed through special advocates. Government trying to have balance with independent representatives and also the need to maintain secrecy of security matters.
SC said that the compatibility of these proceedings with A.5 (4) depended on the individual case. If D is given details of their alleged offence at ‘open stage’ this was fine. If just given general information then this is a breach. Following vagrancy approach in its robustness.

Question 16

Under A 5(4) how many reviews should there be into detention?

Answer 16

• Winterwerp complaint also brought under A.5(4) arguing that regular reviews required.
  SC ruled that where the reason for a person’s detention could change over time then the Article requires ongoing reviews. His mental health could change so there was a breach. This was extended to British life sentence prisoners:
• Weeks (discretionary life sentence then returned to prison). W argued that once period equivalent to punishment was served then need for ongoing detention for reason of public safety had to be regularly reviewed. SC agreed.
• Stafford v UK (2002). SC extended Weeks to mandatory life sentences. SC said that most people in the UK serving sentences for murder do not need to serve for their whole life. After the mandatory period their detention should be reviewed.

It is clear then that the SC is very robust when it comes to liberty and the need for review.

Question 17

What is A 6 and what is unique about it?

Answer 17

Article 6: Right to a Fair Trial (Criminal justice aspects)

There are more complaints under this article than any other. Systematic failings in member states are a contributing factor.

Question 18

What is required for A.6(1) to apply and how has the court interpreted this?

Answer 18

The applicability of A.6(1) depends on C being subject to a criminal charge.

Meaning of ‘criminal charge’
- Engel v Netherlands (1976). Military conscripts given military punishment, most severe sanction imposed involved imprisonment. Case brought to Strasbourg on the basis of there being no fair trial. Dutch Government argued that there had been no criminal charges, under the constitution military discipline was separate, so A.6(1) was inapplicable.
The SC articulated the Engel criteria: (1) how are the proceedings classified under national law? If they are criminal, the SC will accept this, if they are not, then the SC is not bound by this – the notion of an A.6(1) criminal charge is an autonomous concept. (2) Consider the substance of the proceedings against C. (3) Consider the nature of the punishment. Where C is imprisoned, the sanction is so serious that it merits classification as criminal charges. The SC will find this wherever C is imprisoned. National law cannot be blindly followed as there is a risk of A.6 requirements being subverted by such claims as the Dutch Government made here.

• Ozturk v Germany (1984). Consideration of the Engel (2) criterion. O was a driver involved in a minor collision that did not result in injury. Under German law this was not treated as a criminal matter but was dealt with as an administrative offence. O was given a fine for carelessness. O argued that this was a criminal charge that should invoke A.5. The SC applied Engel: (1) classified as an administrative charge, (2) (substance) SC looked at how similar offences were dealt with in other states, most used minor criminal charges therefore the fine used was a criminal charge despite its classification.

Question 19

What are the elements of a fair hearing under A 6(1)?

Answer 19

(i) Equality of arms
(ii) Right to silence
(iii) Right of defendants to participate effectively in their trials
(iv) Admission of evidence

Question 20

Outline the interpretation of (i) Equality of arms

Answer 20

• Rowe & Davis v UK (2000) EOA was created by the SC in Rowe, which attracted public attention at the time. After the M25 opened there were many serious crimes such as murder and burglary in which it was used as an escape. The police offered a reward for any connected information and paid £10K to one informant. The police got a search warrant for R and D and incriminating evidence was found, RD convicted. The prosecution did not disclose the existence of the informant at trial. CA judges were told in secret on appeal but the defence was still not told and RD’s appeal was dismissed. When RD found out they went to SC alleging a breach of their right to EOA:
  “60. It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. . .”
  The presence of the informant should have been disclosed so both of the proceedings were unfair.

Question 21

Outline the interpretation of (ii) Right to silence

Answer 21

• John Murray v UK (1996). Created right to silence. Information received that IRA had taken a suspected informant hostage. An operation was launched and JM and others were caught in the property with the hostage and were arrested. JM did not answer any questions and was told that under NI law adverse inferences could be drawn from his silence at trial but JM remained silent in interviews and trial. JM was convicted on the basis of his presence and his lack of explanation.
  The SC held that although the right is not expressly provided for in A.6(1) it would be implied into it because most MSs upheld it. However, the right could not be absolute, and 3 factors would be relevant in deciding a violation: (1) the circumstances of the silence, (2) the weight attached to the silence in criminal proceedings, and (3) degree of compulsion imposed on C to break their silence. Applied to the facts, JM was caught red handed, the silence was only one factor at trial and he was merely warned about his silence, as such there was no breach.
• Saunders v UK (1997). C was CEO of Guinness and well known. A merger had been arranged and went ahead with another company. Stories alleged illegal activity so a statutory inspector was appointed to investigate with the power to compel company directors to give evidence. Refusal could result in contempt of HC and committal for up to two years. As such, Saunders answered questions, he was convicted and given several years. His lawyers argued a breach of his RTS. The SC agreed with this after applying the JM criteria, particular weight had been attributed to the silence and serious sanctions for not answering.
• O’Halloran and Francis v UK (2007). Challenge to UK system of speed cameras requiring identification of the driver at the time. O and Fs cars were caught speeding separately and the registered owners were required to identify the driver. One admitted that it was him and the other refused to answer, he was prosecuted and got more points and a larger fine. HL said that this was not a violation of the RTS because this was a special legislative scheme. The SC expressly endorsed this ruling – the circumstances would normally violate the JM criteria but this was a special circumstance so there was no breach. Had the challenge been upheld there would have been huge implications of enforcement on speeding across the ECHR.

Question 22

Outline the interpretation of (iii) Right of defendants to participate effectively in their trials

Answer 22

• V v UK (2000) (High profile). The James Bulger case. The perpetrators would normally have been dealt with in a juvenile court but in exceptional cases the ordinary courts can be used and the prosecution decided that this should be done. The court had been adapted for the children, provisions were made to help them see, the timings of a school day were mimicked, social workers were present and explanations were provided. Venables argued before the SC that even with the modifications he was too overwhelmed to participate. By a majority the SC upheld this complaint in a ruling that was unpopular.

Question 23

Outline the interpretation of (iv) admission of evidence

Answer 23

• Schenk v Switzerland (1988) S wanted a member of the French foreign legion t to murder his wife. The man contacted S’s wife and they decided to record a conversation between himself and S. These recordings were passed on to prosecutors and formed a large part of their case. S was convicted in a Swiss court. S argued that this evidence was inadmissible under Swiss law and so a breach of the right to a fair trial.
  SC said that the rules of evidence are matters for individual MSs:
  “46. While A.6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law. The Court therefore cannot exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the present kind may be admissible. It has only to ascertain whether Mr Schenk’s trial as a whole was fair.”
  Held that S had a fair trial.

Question 24

When must a fair and public hearing under A 6(1) take place?

How has this been interpreted?

Answer 24

Criminal charges must be determined within a reasonable time.

The start of the clock depends on when C is charged in domestic proceedings, which is a matter for national law. In the UK, this would be when the charge is read to you. The time period ends at the end of your trial (normally). If national law provides appellate rights and C exercises these then the time period for the purposes of A.6(1) is extended to the end of these appellate stages. A.6(1) itself does not guarantee criminal appellate rights. How are these periods assessed?:

• Konig v Germany (1978) 3 factors to be applied: (1) the complexity of the case. The more complex it is the longer the proceedings can be expected to last. (2) The behaviour of D in the criminal proceedings, if they have requested delays, called upon expert witnesses, changed their lawyers etc. then these periods will be deducted by the SC. (3) How much of the delay is the responsibility of state officials? Police, prosecutors, judges and court staff. The SC weighs up all of the delays and considers whether they were unreasonable. In Konig’s case, 11 years passed in proceedings concerning offences committed in the running of an ENT clinic. This was unreasonable on the facts. No precise amount of time was articulated as the limit but it will normally be a number of years.

This ground of complaint under A.6(1) is the most successful under A.6, with systematic failures contributing. This can amount to a practice if consistent, e.g. in Italy in the 1990s.

Question 25

What qualities must the tribunal have under A 6(1)?

How has each aspect been interpreted.

Answer 25

It must be an independent and impartial tribunal.

Independence
This is based on the notion of SOP, independence from the executive and government is required.
-Incal v Turkey (1998). I was charged with publishing literature that incited violence. When he was charged, the offence was classified as one of national security which meant that the trial was in a special NS court. The NSC had 3 judges, 2 were full time and one was a ‘military judge’ a legally trained but serving member of the armed forces, who had a 4 year term. I was convicted. Complaints were brought under A.10 and A.6(1), and it was argued that the MJ was not independent since he was subordinate to superior officers and they were in turn subordinate to the government, so there was scope to be influenced by the executive. The SC upheld the complaint and Turkey changed the law to remove MJs.

Impartiality
- Piersack v Belgium. (1982) Judiciary included both judges and the prosecution service, and roles between both alternated. P was suspected of murder, and the prosecution office dealing with his case subsequently had its head prosecutor moved to be a TJ who was to oversee P’s case. P was convicted by the jury and sentenced. A challenge was brought on the grounds of impartiality:
“30. While impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably under A.6(1) of the Convention, be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubts in this respect.”

P satisfied the threshold for objective bias and Belgium could not provide the necessary guarantees, which would for example include that the TJ had no previous involvement in the case as a prosecutor.

Question 26

What is needed to sustain a subjective challenge to the impartiality of a tribunal?

What is needed to sustain an objective challenge to the impartiality of a tribunal?

Answer 26

 A subjective challenge requires facts to be established that demonstrate the personal bias within a TJ. The starting presumption of the SC is that no national judge is biased and there are very few successful claims on these grounds.

Objective bias requires evidence to establish legitimate doubts surrounding impartiality. If this is shown then the offending state must show sufficient guarantees to exclude any legitimate doubts in this respect.

Question 27

What is the last right provided in A 6(1)? How has it been interpreted?

Answer 27

Public pronouncement of judgment (subject to exceptions).

• Pretto v Italy (1983). It was an Italian practice that appellate courts did not read out their judgments, they issued printed copies instead. P challenged this and Italy argued that it would not be efficient to read them all out. The SC agreed that making printed copies of the judgments available was sufficient.

Question 28

Outline the interpretation of the right contained within A 6(2).

Answer 28

A 6(2) - everyone charged with a criminal ffence shall be presumed innocent until proven guilty according to the law.

• Minelli v Switzerland (1983). M was a journalist who published a critical article about B. B brought criminal defamation proceedings against M and others. Case against M was brought last. In his other claims B was successful but by the time he claimed against M the claim had become time-barred. Nonetheless, M was required to pay B’s costs by the court since the judge said it was very probably that M would have been convicted.
  The SC took a robust stance on protection of this right:
  “37. In the Court’s judgment, the presumption of innocence will be violated if, without the accused’s having previously been proven guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty. This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty.”

Question 29

Outline the interpretation of the rights contained within A 6(3)(a) and (b).

Answer 29

A 6(3) (further guarantees).
(a)To be informed-in detail and in a language they understand-of the accusations against them.
- Brozicek v Italy (1990) B was a German national who allegedly destroyed flags belonging to a political party while in Italy. B returned home but the Italian prosecutors brought charges under the Italian criminal code. B’s address was found and he was mailed specifying the alleged breaches of the code and the factual basis of the claims. All of the information was in Italian. B replied in German but the IP pursued the matter in Italian anyway. The Italian courts convicted B in absentia. B took his case to the SC.
The SC said that the IP had satisfied the necessary level of detail but accepted B’s argument that it had not been provided in a language he understood.

(b) To have adequate time/facilities for the preparation of defence
- Ocalan v Turkey. O was the leader of the PKK living in the Turkish ambassador’s residence in Kenya. The Turkish authorities abducted him in Kenya and flew him to Turkey to put him on trial for a huge list of offences. The prosecution documents came to 17,000 pages. O was given a few weeks to prepare for his trial with his lawyers. He went to the SC, which found that given the scale of the documents and the complexity of the case there was a clear breach.

Question 30

Outline the interpretation of the right contained within A 6(3)(c).

Answer 30

(c) To be provided with free legal assistance when the interests of justice so require and persons cannot afford to pay.
- Artico v Italy (1980) A was charged with various complex frauds and was convicted. A was allowed to appeal and he asked for a legal aid lawyer due to the complexity of his case. This request was accepted and a lawyer was appointed but they did not help A. The appellate court did not care, arguing that their obligation under A.6(3)(c) had been discharged, and that A should sue L over any issues. The SC said that convention rights must be interpreted and applied in a way that makes them practical and effective. Accordingly, the ECHR had been breached.

-Benham v UK (1996) B was imprisoned for not payment of poll tax. He was not entitled to legal aid in the proceedings:
“61. . . .where deprivation of liberty is at stake, the interests of justice in principle call for legal representation.”

The SC has subsequently extended A.6(3)(c) to extend the right to legal aid to pre-charge stages, i.e. questioning. Logically, such rights should fall within A.5 but they are not mentioned there.

• Salduz v Turkey (2008). S was a youth supporter of the PKK engaged in a peaceful but unlawful protest. He was arrested, when he asked for a lawyer the police refused and he was duly charged and convicted. The case went to the GC:
  55. …as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction- whatever its justification- must not unduly prejudice the rights of the accused under Article 6… The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

On the facts, no good reasons had been provided for denying S a lawyer. The reliance on statements made by S during this time to convict him also breached A.6.

• Ibrahim and Others v UK (2016). Weeks after bombings in London in July 2005, others had attempted more suicide bombings but detonation was unsuccessful and they escaped. The first 3 applicants were arrested separately in the belief that they were the bombers. When they asked for lawyers the police refused and interrogated them for a few hours to try to first establish whether there was any risk of attacks in the immediate future (‘safety interviews’). The fourth applicant was the friend of a suspect who had allowed the suspect to stay in his flat overnight. He was questioned as a witness rather than a suspect but made incriminating statements, at which point he should have been cautioned and told of his right of access to a lawyer but he wasn’t. All were charged. The first 3 suspects alleged that they had been taking part in a hoax.

GC said:
The Salduz test was comprised of two stages. First the Court had to decide if there were compelling reasons for delaying the applicant’s access to a lawyer. 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.
The majority of the GC found that (1) was satisfied given the national terror threat but a smaller majority thought that applicant 4 should have had access to a lawyer. For (2), it was fair to rely on statements made because the applicants had sought to invent a defence through the claim of hoaxing. With regard to App4, the GC said that where there are no compelling reasons to deny access to a lawyer the GC would take a much stricter approach in assessing the overall fairness of domestic proceedings (and vice versa - if there were compelling reasons to deny a lawyer initially then the court will take a more relxed approach to assessing overall fairness). It ultimately found a breach of (2) for the second applicant as well.

• Simeonovi v Bulgaria (2017). Grand Chamber applied Ibrahim from time of arrest. The right of access to a lawyer begins as soon as you are arrested, but this is still subject to the Ibrahim interpretation. S was arrested and denied a lawyer for 3 days, but he was not questioned during this time. He was convicted ultimately. The SC held that this was not unfair as no evidence from those 3 days had been used against him at trial.

Question 31

Outline the interpretation of the right contained within A 6(3)(d)

Answer 31

(d) To call witnesses and examine prosecution witnesses

• Doorson v Netherlands (1996). Some of the prosecution witnesses had been cross-examined by D’s lawyer anonymously. The SC found that this was not a breach because there had been an opportunity to CE, but:
  “76. . . .a conviction should not be based either solely or to a decisive extent on anonymous statements.”
• Van Mechelen v Netherlands. (1997) armed gang member arrested and charged. The main witnesses were investigating officers who did not want to put themselves or their families at risk and so they did not want to appear in the court room. TJ arranged for them to be in another room with a sound link to the court and they were cross examined over this. VM was convicted and took his case to the SC, which upheld his complaint. A.6(3)(d) requires effective cross examination.
• Al-Khawaja v UK (2011) (controversial). AK was an NHS consultant. 2 patients separately alleged sexual assaults by AK. One of the witnesses gave a statement to the police but subsequently committed suicide which was apparently unconnected to the case. As such, the prosecution relied on the statement and on the sole remaining witness. AK was convicted on both counts. SC chamber applied Doorson and found that there was a breach insofar as the statement had been relied on alone. In a separate case the UK Supreme Court criticised this decision of the chamber and asked the SC to rehear the case. The GC overruled the chamber – it depends on the individual case whether it is fair or not for a key witness to be absent. There had been sufficient fairness in AK’s case.

Question 32

Outline the interpretation of the right contained within A 6(3)(e)

Answer 32

(e) To be provided with a free interpreter if you do not understand the language used in court
- Luedicke, Belkacem & Koc v Germany (1980). None of the defendants spoke German, interpreters were provided but they were all convicted and required to pay the costs of the interpreters under law. The case went to the SC, which rejected Germany’s argument that the interpreters could only be free if you were acquitted, free interpreters are necessary, innocent or not.

Question 33

What can be done in problem questions with regards to A 6 rights?

Answer 33

Minor breaches can be srawn together to say the trial as a whole was unfair. E.g. we might not be able to say tha evidence should not have been admitted, but we can say that there was an element of unfairness in its admission (e.g. evidence given in breach of confidence). This can then be coupled with a minor breach of C’s right to silence and the stricter appraisal that stems from C having no lawyer to say that overall there was an unfair trial which might not have been established with only one of these breaches.

Question 34

What is the key distinction between A 5(2) and A 6(3)(a)?

Answer 34

A 5(2) is right to reasons for arrest and charges before charges are given.
A 6(3)(a) is the right to be informed of nature and cause of accusations against you in detail and understandable language post-charge but pre-trial.

Question 35

What differences are there generally between states in this area?

How has the ECHR sought to address this?

Answer 35

In examining cases remember that this is an area where the differences between the common law (predominantly adversarial) system of criminal process and the civil law (predominantly inquisitorial) system come into play.

The Convention attempts to set down minimum guarantees for both.

It is a useful question to ask yourself as to whether this is an impossible task.