The right to defence in pre-trial procedures under
the Covenant and under the European Convention
Marco Pedrazzi
1. Introduction.
The pre-trial phase in criminal proceedings is an extremely delicate one, from two points
of view. Firstly, pre-trial procedures per se may severely affect the rights and interests of
the suspect, or the accused, even more severely than the trial proper: personal or housing
search, attachment of assets, ill-treatment by the police, torture, long preventive detention,
damage to reputation are only some examples of the legitimate or illegitimate, usual or
extreme consequences that pre-trial procedures may produce on the individual. The
prejudice may be irreparable, even when a fair trial follows, even when the trial ends up
with a total acquittal. Secondly, the pre-trial phase, according to the procedural law of the
State concerned, and to the particular circumstances of the case, may have a direct bearing
on the trial: it may even determine the issue of the trial, as it happens when the judgment is
based on evidence taken before trial. That means that an evaluation of the “fairness” of the
trial needs to be based on an examination of the whole of the proceedings, and that the
pre-trial procedures play a crucial role in this respect.
It follows from the foregoing that there are at least two reasons to guarantee an effective
enjoyment of the right to defence of the suspect, or the accused, during the pre-trial phase:
the first is that the individual has to be afforded the possibility of defending himself (or
herself) against the above mentioned prejudicial consequences that the preliminary
investigations may entail for him (or her), independently of the subsequent conduct and of
the exit of the trial. The second is that, if the defence with regard to the criminal charge
directed against the accused mainly takes place at the public hearing, the pre-trial phase is
necessary, at times essential for its preparation: needless to say that even when the taking
of evidence is entirely confined to the hearing, the preparation of the defence has to start
before trial.
The pre-trial phase is not as such taken into consideration by the International Covenant on
Civil and Political Rights (ICCPR) or by the European Convention on Human Rights
(ECHR); but in both treaties, two sets of similar provisions have a direct or indirect bearing
on the pre-trial situation, as far as the right to defence is concerned: the provisions

Professor of University of Milan, Italy.
1
concerning the right to liberty and security of persons, with special regard to arrest pending
trial and preventive detention, on one side (Art. 9, ICCPR; Art. 5, ECHR); the provisions
on fair trial, on the other side (Art. 14, ICCPR; Art. 6, ECHR). In relation to preventive
detention, habeas corpus procedures are specifically envisioned by both documents. Fair
trial provisions can be relevant in pre-trial situations, whether the suspect or the accused is
under custody or detention or not. The jurisprudence of both the Human Rights Committee
(HRC) and the European Court have contributed in clarifying the content of the provisions
in question and their applicability to the pre-trial phase. There are some differences in the
formulation and in the interpretation of the two treaties: the Covenant, as it is read by HRC,
appears in some respect to afford a stronger protection to defence rights in the pre-trial
phase than the European Convention, as read by the Court. It is true that the Committee has
often dealt, more frequently than the Court, with extreme cases of denial of defence rights;
but this is only a partial explanation of the differing views. However, and above all,
concrete solutions adopted in the two systems are largely convergent.
2. The scope of the fair trial provisions: divergences between ICCPR and
ECHR.
A first element which has a certain relevance in determining the extent of defence rights in
the pre-trial phase is given by the scope of the fair trial provisions of, respectively, Art. 14,
ICCPR, and Art. 6, ECHR. The two articles have a different length, but both contain a first
paragraph, enunciating the right to a fair trial1; a second paragraph, which proclaims the
principle of the presumption of innocence; and a third paragraph, where some specific
“minimum guarantees”, or “minimum rights”, are set out to the benefit of individuals
“charged with a criminal offence” (Art. 6, ECHR; or “in the determination of any criminal
charge against” them, in Art. 14, ICCPR). Art. 14.3, ICCPR, is more detailed than Art. 6.3,
ECHR. Anyhow, as underlined by HRC, paragraph 3 of Art. 14, ICCPR, “elaborates on the
requirements of a “fair hearing” in regard to the determination of criminal charges” 2.
Similarly, according to the Strasbourg Court, “the guarantees in paragraph 3 of Article 6 …
are specific aspects of the right to a fair trial set forth in paragraph 1”3. Nonetheless, while
the approach of the Committee tends to be that of directly applying Article 14.3
“In the determination of any criminal charge against him, or of his rights and obligations in a suit at law,
everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal
established by law”, in the words of Art. 14.1, ICCPR; “In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law”, in the words of Art. 6.1,
ECHR.
2
CCPR General Comment 13, Equality before the courts and the right to a fair and public hearing by an
independent court established by law (Article 14), 13 April 1984, par. 5.
3
Kostovski case (Appl. n. 11454/85), judgment of 25 October 1989, par. 39.
1
2
requirements to the whole of the proceedings, including the pre-trial phase4, according to
the European Court “the primary purpose of Article 6 … as far as criminal matters are
concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal
charge””. The Court specifies that “it does not follow that the Article has no application to
pre-trial proceedings. Thus, Article 6 – especially paragraph 3 – may be relevant before a
case is sent to trial if and so far as the fairness of the trial is likely to be seriously
prejudiced by an initial failure to comply with its provisions”5. The difference in the two
approaches is subtle, but it might lead in some situations to a better protection under the
Covenant.
What is sure is that both provisions apply, as far as criminal proceedings are concerned,
only “in the determination of criminal charges”. Here, the concept of “criminal charge”
could not be overly formalistic; otherwise States parties could escape too easily from the
fair trial requirements, just by postponing the moment of the issue of a formal criminal
charge against the suspect. And, in fact, here, the HRC and European Court approaches
converge in the identification of a substantial notion of criminal charge, at least for the
purposes of “paragraphs 2 and 3 requirements”, even if they are not exempt of ambiguities
and inconsistencies. If, for example, the Committee underlines that the right of the accused
to be informed of the charge against him arises “when in the course of an investigation a
court or an authority of the prosecution decides to take procedural steps against a person
suspected of a crime or publicly names him as such”6, the European Court takes the
following position:
“Whilst “charge”, for the purposes of Article 6 § 1 …, may in general be defined as “the official notification
given to an individual by the competent authority of an allegation that he has committed a criminal offence”,
it may in some instances take the form of other measures which carry the implication of such an allegation
and which likewise substantially affect the situation of the suspect”7.
Anyway, a brief examination of the solutions given by the two bodies to some of the main
right to defence issues arising in the pre-trial phase will permit to better understand the
approaches of the two bodies.
See again General Comment 13, at par. 15: “In order to safeguard the rights of the accused under
paragraphs 1 and 3 of article 14, judges should have authority to consider any allegations made of violations
of the rights of the accused during any stage of the prosecution”.
5
Brennan v. the United Kingdom case, Appl. n. 39846/98, judgment of 16 October 2001. The line of
reasoning had been traced by the Court in the Imbrioscia v. Switzerland case, Appl. n. 13972/88, judgment of
28 October 1993. See also C. Focarelli, Equo processo e Convenzione europea dei diritti dell’uomo, Padova,
2001, p. 123 ff.
6
General Comment 13, par. 8. See, however, on the ambiguity of the concept of “procedural steps”, D.
McGoldrick, The Human Rights Committee. Its Role in the Development of the International Covenant on
Civil and Political Rights, Oxford, 1991, p. 406.
7
Foti and others case (Appl. nos. 7604/76, 7719/76, 7781/77 and 7913/77), judgment of 23 November 1982.
4
3
3. The right to defence of the suspect (or the accused) under arrest or
detention pending trial.
Let us consider, first, the situation of a person under arrest or detention pending trial. It is
obvious that the deprivation of liberty is the measure most heavily affecting the rights and
interests of the suspect, or the accused, in itself, and for the risk of abuses that it may entail.
On one side, the person under pre-trial arrest and detention needs to be put in condition to
defend himself against the continued deprivation of his liberty, and against any other
measure that may affect him under police custody or during detention. On the other side,
he needs to be able to prepare his defence in relation to the criminal charge which has been
or will be formulated against him, in view of the trial.
a) Information about the reasons of arrest and the criminal charges.
In order to exercise his right to defence, the suspect or the accused who is arrested shall,
first of all, be informed, in a language which he understands, of the reasons for his arrest
and of the charges against him. Each of the two treaties contains two provisions which are
relevant in the situation. On one hand, Art. 14.3 (a), ICCPR, provides that in the
determination of any criminal charge against him, everyone shall be entitled “to be
informed promptly and in detail in a language which he understands of the nature and
cause of the charge against him”; Art. 6.3 (a), ECHR, is spelled out in about the same
words 8 . The provisions are applicable to every individual under a criminal charge,
independently of the fact that he has or has not been deprived of his liberty. On the other
hand, Art. 9.2, ICCPR, and Art. 5.2, ECHR, specifically refer to the situation of the
individual under arrest. According to Art. 9.2, ICCPR, “he shall be informed, at the time of
arrest, of the reasons for his arrest and shall be promptly informed of any charges against
him”9. Art. 5.2 is a bit less demanding with regard to the time, providing that both kinds of
information shall be given promptly 10 . Now, apart from the temporal question, the
difference between articles 14.3 (a), ICCPR, and 6.3 (a), ECHR, on one side, and articles
9.2, ICCPR, and 5.2, ECHR, on the other side, is that the first ones require “detailed
information” on the charges, while the latter ones merely require “information”. That
means that the information given at the moment of arrest (or immediately afterwards) may
be more concise than the information required when the criminal charge appears to have
been issued. This is confirmed by HRC jurisprudence, when it states that:
“For the purposes of article 14, paragraph 3(a), detailed information about the charges against the accused
must not be provided immediately upon arrest, but with the beginning of the preliminary investigation or the
Art. 6.3, ECHR: “Everyone charged with a criminal offence has the following minimum rights: a) to be
informed promptly, in a language which he understands and in detail, of the nature and cause of the
accusation against him; …”.
9
Evidence added.
10
Art. 5.2, ECHR: “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”.
8
4
setting of some other hearing which gives rise to a clear official suspicion against the accused”11.
The situation does not seem to be substantially different under the European Convention12.
What is important is that there is a requirement, under both treaties, that “anyone who is
arrested shall be informed sufficiently of the reasons for his arrest to enable him to take
immediate steps to secure his release if he believes that the reasons given are invalid or
unfounded”13.
b) Access to a lawyer.
A second fundamental guarantee for any arrested person is given by the possibility of
having access to a lawyer. Access to a lawyer is essential under three respects: firstly, a
lawyer can help the detainee in challenging before a competent court the legality of his
detention; secondly, consultations with the lawyer are necessary for the preparation of the
defence for the trial, particularly when evidence is taken during the preliminary
investigations; thirdly, contacts with the lawyer are helpful, among other means, in
preventing the infliction on the detainee of torture or ill-treatment, which is particularly
true if the lawyer is permitted to assist at interrogations, especially by the police. These are
the reasons why the need of granting access to legal counsel is particularly insisted upon in
the various international standards relating to the treatment of detainees14.
As far as the Covenant and the European Convention are concerned, Art. 9, ICCPR, and
Art. 5, ECHR, do not specifically provide for the access to a lawyer of persons arrested on
remand. Both the Committee and the European Court have, however, relied for the purpose
on the fair trial provisions of, respectively, Art. 14, ICCPR, and Art. 6, ECHR, although in
different ways, and with partly different results. The following minimum guarantees for
“everyone charged with a criminal offence”, which are relevant to the present point, are
enunciated by both provisions: to have adequate time and facilities for the preparation of
his defence (Art. 14.3 (b); Art. 6.3 (b)); to defend himself in person or through legal
assistance of his own choosing or, if he does not have sufficient means to pay for it and if
the interests of justice so require, to have free legal assistance given to him (Art. 14.3 (d);
11
Williams v. Jamaica, Comm. n. 561/1993, HRC views of 8 April 1997, par. 9.2. See also McLawrence v.
Jamaica, Comm. n. 702/1996, HRC views of 18 July 1997, par. 5.9, where it is stated that “the duty to inform
the accused under article 14, paragraph 3 (a), is more precise than that for arrested persons under article 9,
paragraph 2”; and Kelly v. Jamaica, Comm. n. 253/1987, HRC views of 8 April 1991, where the Committee
specifies that Art. 14.3 (a) does not apply to “those remanded in custody pending the result of police
investigations: the latter situation is covered by article 9, paragraph 2, of the Covenant”.
12
See P. van Dijk, G.J.H. van Hoof, Theory and Practice of the European Convention on Human Rights,
The Hague, 1998, pp. 367 ff., 464 f.; M. Pisani, “Art. 5”, in S. Bartole, B. Conforti, G. Raimondi,
Commentario alla Convenzione europea per la tutela dei diritti dell’uomo e delle libertà fondamentali,
Padova, 2001, p. 130 ff.; M. Chiavario, “Art. 6”, ibid., p. 222 ff.
13
Drescher Caldas v. Uruguay, Comm. n. 43/1979, HRC views of 21 July 1983, par. 13.2.
14
See, inter alia, the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, approved by Res. 43/173 by the General Assembly on 9 December 1988, in particular at
principles 15, 17, 18. See also HRC, General Comment n. 20 (1992), on Art. 7, ICCPR, at par. 11: “The
protection of detainees … requires that prompt and regular access be given to … lawyers …”.
5
Art. 6.3 (c)). Only in Art. 14.3 (b), ICCPR, the right “to communicate with counsel of his
own choosing” is also specifically mentioned, which can have some bearing on the
outcome of the jurisprudence with regard to the pre-trial phase.
As I mentioned before, HRC follows a rather straightforward line of reasoning, tending to
interpret Art. 14, ICCPR, as a provision directly applying to the criminal proceedings
considered as a whole, the pre-trial phase included. That has an immediate repercussion on
the evaluation of the rights of the person arrested on remand. Any kind of incommunicado
detention implying the denial of access to a lawyer, be it only for five days, is deemed to
be a violation of the right to “communicate with counsel of his own choosing”, enunciated
by Art. 14.3 (b) 15 . Obviously, communication with the lawyer shall respect the
requirements of confidentiality16. The European Court follows a more complex approach,
which has been set out in the 1993 Imbrioscia judgment. It may be helpful to reproduce the
whole reasoning:
“Certainly the primary purpose of Article 6 … as far as criminal matters are concerned is to ensure a fair trial
by a “tribunal” competent to determine “any criminal charge”, but it does not follow that the Article has no
application to pre-trial proceedings. The “reasonable time” mentioned in paragraph 1 …, for instance, begins
to run from the moment a “charge” comes into being, within the autonomous, substantive meaning to be
given to that term … Other requirements of Article 6 … - especially of paragraph 3 …- may also be relevant
before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by
an initial failure to comply with them … the manner in which Article 6 paras. 1 and 3 (c) … is to be applied
during the preliminary investigation depends on the special features of the proceedings involved and on the
circumstances of the case; in order to determine whether the aim of Article 6 … - a fair trial – has been
achieved, regard must be had to the entirety of the domestic proceedings conducted in the case”17.
According to this approach, on one hand, in a case where the national legislation permitted
to draw adverse inferences from the suspect’s silence at police questioning, and the
applicant’s right of access to a lawyer during the first 48 hours of police detention had been
restricted, the Court found a violation of Art. 6:
“National laws may attach consequences to the attitude of an accused at the initial stages of police
interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In
15
See for example Kelly v. Jamaica, Comm. n. 537/1993, HRC views of 17 July 1996, at par. 9.2:
“According to the file … the author, when brought the police station in Hanover on 24 march 1988, told the
police officers that he wanted to speak to his lawyer, Mr. McLeod, but the police officers ignored the request
for five days. In the circumstances, the Committee concludes that the author’s right, under article 14,
paragraph 3 (b), to communicate with counsel of his choice, was violated”. See also HRC, Concluding
observations on the report from Spain, 3 April 1996 (CCPR/C/79/Add.61), at par. 12, where: “The
Committee expresses concern at the maintenance on a continuous basis of special legislation under which
persons suspected of belonging to or collaborating with armed groups may be detained incommunicado for
up to five days, may not have a lawyer of their own choosing …”.
16
See for example Gridin v. Russian Federation, Comm. n. 770/1997, HRC views of 20 July 2000, par. 8.5:
“… the fact that the author was unable to consult with his lawyer in private … also constitutes a violation of
article 14, paragraph 3 (b) of the Covenant”.
17
Imbrioscia v. Switzerland case, note n. 5 above, at paras. 36 and 38.
6
such circumstances Article 6 … will normally require that the accused be allowed to benefit from the
assistance of a lawyer already at the initial stages of police interrogations. However this right, which is not
explicitly set out in the Convention, may be subject to restrictions for good cause. The question, in each case,
is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair
hearing”; and, after examining the circumstances of the case: “Under such conditions the concept of fairness
enshrined in Article 6 … requires that the accused has the benefit of the assistance of a lawyer already at the
initial stages of police interrogation. To deny access to a lawyer for the first 48 hours of police questioning, in
a situation where the rights of the defence may well be irretrievably prejudiced, is … incompatible with the
rights of the accused under Article 6 …”18.
Similarly, a violation of Art. 6 was ascertained by the Court in the Öcalan case, where the
applicant had received no legal assistance for almost seven days, while he was held in
police custody and questioned by the security forces, a public prosecutor and a judge of the
State Security Court and had “made several self-incriminating statements that were
subsequently to become crucial elements of the indictment and the public prosecutor’s
submissions and a major contributing factor in his conviction”19. On the other hand, no
violation was found in a case where the denial of access to a lawyer had lasted 24 hours
and during that period the applicant had not made incriminating admissions20. In the same
case, the Court held that, although the attendance of the suspect’s lawyer at interviews with
the police, as well as the recording of those interviews, “provides a safeguard against
police misconduct”, “it is not persuaded that these are an indispensable precondition of
fairness within the meaning of Article 6 § 1 of the Convention”21. It found, however, a
violation of Article 6 in the fact that the first consultation with the solicitor was not
confidential:
“… the presence of the police officer within hearing during the applicant’s first consultation with his solicitor
infringed his right to an effective exercise of his defence rights … there has been, in that respect, a violation
of Article 6 § 3 (c) of the Convention taken in conjunction with Article 6 § 1” 22.
In another case, where the applicants complained about the absence of their lawyer during
the first phase of their police custody and the presence of policemen when the consultation
with the lawyer became possible, the Court held that the applicants had not proven that the
absence of their lawyer during police custody had affected their rights: the situation
appeared, however, to be characterised by a short duration of the denial of access to
counsel and by an insufficient substantiation of the claims 23 . Summing up, from a
theoretical point of view HRC’s approach would seem more suited to guarantee an
adequate protection of the rights of arrested suspects against the risks of denial of access to
18
John Murray v. the United Kingdom case, Appl. n. 18731/91, judgment of 25 January 1996, paras. 63 and
66. See also Magee v. the United Kingdom case, Appl. n. 28135/95, judgment of 6 June 2000.
19
Öcalan v. Turkey case, Appl. N. 46221/99, judgment of 12 March 2003, par. 140 ff.
20
Brennan v. the United Kingdom case, Appl. n. 39846/98, judgment of 16 October 2001, at par. 44 ff.
21
Ibid., par. 53.
22
Ibid., par. 63. See also the Öcalan v. Turkey case, note 19 above, at par. 144 ff.
23
Mamaç and others v. Turkey case, Appl. nos. 29486/95, 29487/95 and 29853/96), judgment of 20 April
2004, par. 43 ff.
7
a lawyer, especially during the first days of police custody; but from a practical point of
view, while the Committee has generally been considering rather serious denial cases, the
European Court is very attentive in evaluating the circumstances, the duration and the
impact of the denial, which has not been considered a violation of the right to defence in
only some limited cases where a short deferral of legal assistance had apparently not
produced prejudicial effects on the ensuing proceedings. Nonetheless, the principle is, and
should remain, that legal assistance should be available since the moment a person is
deprived of his liberty.
4. The right to defence in habeas corpus procedures.
Both the Covenant (Art. 9.4) and the European Convention (Art. 5.4) provide that anyone
who is deprived of his liberty, including any person arrested or detained on a criminal
charge24, shall be entitled to take proceedings before a court by which the lawfulness of his
detention may be decided and his release ordered if the detention is not lawful. It is
self-evident how this right will be respected only if the detainee will be afforded the
possibility of fully defending his case. That is recognised, although in slightly different
terms, by both HRC and the European Court. The position of the Committee is simply that
habeas corpus proceedings fall under the fair trial provision of Art. 14.1, ICCPR25: which
also means that the right to legal assistance must be respected26. The departing point in the
European Court’s reasoning is that “it is not always necessary that the procedure under
Article 5 § 4 be attended by the same guarantees as those required under Article 6 § 1 of
the Convention for criminal or civil litigation”27. Nonetheless, the Court holds that Art. 5.4
procedure
“must be of a judicial nature, which implies that “the person concerned should have access to a court and
the opportunity to be heard either in person or, where necessary, through some form of representation, failing
which he will not have been afforded the fundamental guarantees of procedure applied in matters of
deprivation of liberty””28.
Who shall in any case “be brought promptly before a judge”: Art. 9.3, ICCPR; Art. 5.3, ECHR.
See HRC, Concluding observations on the report from India, 30 July 1997, at par. 24, where it is held that
“the decision as to continued detention must be considered as a determination falling within the meaning of
article 14, paragraph 1, of the Covenant, and … proceedings to decide the continuation of detention must,
therefore, comply with that provision”.
26
See Kelly v. Jamaica, note 11 above, where, after finding a violation of Art. 9.3, on account of a delay of
over one month in bringing the author before a judge, HRC considered “it to be an aggravating circumstance
that, throughout this period, the author was denied access to legal representation and any contact with his
family. As a result, his right under Article 9, paragraph 4, was also violated, since he was not in due time
afforded the opportunity to obtain, on his own initiative, a decision by the court on the lawfulness of his
detention” (par. 5.6).
27
Niedbala v. Poland case, Appl. n. 27915/95, judgment of 4 July 2000, par. 66.
28
Öcalan v. Turkey case, note 19 above, par. 69, quoting the Winterwerp v. the Netherlands case, judgment
of 24 October 1979.
24
25
8
It follows that the proceedings should in principle meet “to the largest extent possible
under the circumstances of an ongoing investigation, the basic requirements of a fair trial,
such as the right to an adversarial procedure” and to equality of arms between the parties 29.
Where a person, with no legal training, is held in police custody in total isolation, without
the opportunity to contact his lawyers and where even his lawyers’ movements are
obstructed, the remedy cannot be considered available30. Equality of arms in the procedure
is not ensured “if counsel is denied access to those documents in the investigation file
which are essential in order effectively to challenge the lawfulness of his client’s
detention”31. Notwithstanding the different departing points, the results under the two
treaties are quite similar.
5. The right to defence in the pre-trial phase as necessary to safeguard the
fairness of the trial.
Whether the accused is or is not deprived of his liberty, the pre-trial phase can be
extremely relevant in order to test the fairness of the trial, under two respects: firstly, it is a
period which is necessary to the defence in order to start the preparation for the hearing;
secondly, and especially in some procedural systems, the final judgment may at times be
based, partly, or even decisively, on the results of the interrogation of the accused or on
some other pieces of evidence taken before trial. It is therefore essential that the accused
may enjoy the time and facilities necessary to prepare his defence; that he may have access
as soon as possible, personally or through his lawyer, to the documents in the case-file; that
he may be present, in person and with the assistance of his lawyer, at the taking of
evidence and examine the witnesses against him; that he may consult with his lawyer as
much as necessary, and in private; that he is afforded legal assistance if he does not have a
lawyer, at no cost, if he does not have the means to pay for it; that he is afforded an
interpreter, if he does not speak the language of the court. All these requirements, which
are more or less clearly set out in Art. 14.3, ICCPR, and in Art. 6.3, ECHR, and in any case
are included in the notion of a “fair hearing” enunciated, respectively, in Art. 14.1 and in
Art. 6.1, cannot be deemed to apply only to the hearing: they need to be applied to the
pre-trial phase too, at least as far as what happens in this phase is able to affect the trial as a
whole. Also in relation to these aspects, a substantial convergence emerges between HRC’s
and European Court’s case-law.
a. Time and facilities for the preparation of the defence; legal assistance; interpretation.
A violation of Art. 14.3 (b), ICCPR (providing for adequate time and facilities for the
preparation of the defence, and for communication with counsel) was found by HRC in the
29
30
31
Schöps v. Germany case, Appl. n. 25116/94, judgment of 13 February 2001, par. 44.
See again the Öcalan v. Turkey case, note 19 above, at par. 66 ff.
Schöps v. Germany case, note 29 above, par. 44.
9
fact that “the author did not have more than half an hour for consultation with counsel prior
to the trial”; that was all the more unacceptable as it happened in a capital punishment
case32. In another case, however, where “none of the accused met with their lawyers more
than twice prior to the trial”, HRC could not “conclude that the lawyers were placed in a
situation where they were unable properly to prepare the case for the defence”; it also
remarked that an adjournment of the case did not seem to have been requested on grounds
of insufficient time for the preparation of the defence and that any shortcomings regarding
time for consultation and preparation of the defence could not be attributed to the State
party33. Obviously, no violation can be found when the restrictions on the defence in the
pre-trial phase entirely depend on the fault of the accused, or his lawyer, or when a remedy
would have been available during the trial, but the accused did not resort to it34.
The Committee is quite firm in stating that “legal assistance should be available at all
stages of criminal proceedings”35. It follows that Art. 14.3 (d) was deemed to be violated in
a case where counsel was not assigned to the accused until the day of the trial 36; and in
another case, where an accused, charged with a capital crime, was not represented by
counsel at the preliminary hearing37. If the State cannot be held responsible for any
lawyer’s mistake, “it is incumbent upon the State party to ensure that legal representation
provided by the State guarantees effective representation”: as it happens when the accused
is “not provided legal representation from the time of his arrest to his release from
detention”, because the lawyer assigned by the State failed to appear at the interrogation or
at the detention hearing38.
By analogy, also the right to the free assistance of an interpreter 39 , which is an
indispensable prerequisite for an effective exercise of the right to defence, is not limited to
“the oral hearing”, as highlighted by the European Court:
“Construed in the context of the right to a fair trial guaranteed by Article 6, paragraph 3 (e) … signifies that
an accused who cannot understand or speak the language used in court has the right to the free assistance of
an interpreter for the translation or interpretation of all those documents or statements in the proceedings
instituted against him which it is necessary for him to understand in order to have the benefit of a fair trial” 40.
b. Cross-examination of witnesses.
32
Little v. Jamaica, Comm. n. 283/1988, HRC views of 1 st November 1991, paras. 8.3 and 8.4.
Sawyers, McLean and McLean v. Jamaica, Comm. nos. 226/1987 and 256/1987, HRC views of 11 April
1991, paras. 13.6 and 13.7.
34
See also Semey v. Spain, Comm. n. 986/2001, HRC views of 30 July 2003, at par. 8.8.
35
Borisenko v. Hungary, Comm. n. 852/1999, HRC views of 14 October 2002, par. 7.5.
36
Teesdale v. Trinidad and Tobago, Comm. n. 677/1996, HRC views of 1 st April 2002, par. 9.5.
37
Wright and Harvey v. Jamaica, Comm. n. 459/1991, HRC views of 27 October 1995, par. 10.2.
38
Borisenko v. Hungary, note 36 above, at 7.5.
39
See Art. 14. 3 (f), ICCPR; Art. 6.3 (e), ECHR.
40
Luedicke, Belkacem and Koç case, judgment of 23 October 1978, par. 48. See also the Kamasinski case,
Appl. n. 9783/82, judgment of 23 November 1989, paras. 76-77.
33
10
An essential guarantee of the rights of the defence is the one provided by Art. 14.3 (e),
ICCPR:
“To examine, or have examined, the witnesses against him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as witnesses against him” 41.
Obviously, a serious prejudice for the accused may arise if the final outcome of the case
depends, wholly or in part, on the statements of witnesses examined before the trial, if, for
one reason or another, the accused or his lawyer have not been able to examine those
witnesses and the examination is not repeated at the hearing. Thus, HRC found a violation
of Art. 14.3 (d) in a case where the author’s representative was absent during the deposition
of two prosecution witnesses at the preliminary hearing:
“the magistrate, when aware of the absence of the author’s defence counsel, should not have proceeded with
the deposition of the witnesses without allowing the author an opportunity to ensure the presence of his
counsel”42.
Conversely, a violation was not found in a case where the witness was unable to give
evidence during the trial, because he had left the country, but where counsel to the author
had cross-examined the witness at the preliminary hearing (the author being present), and
nor the author nor his counsel had objected to the introduction of this evidence before the
court43.
The European Court’s case-law is based on the assumption that “all the evidence must in
principle be produced in the presence of the accused at a public hearing with a view to
adversarial argument”44.
“This does not mean, however, that in order to be used as evidence statements of witnesses should always be
made at a public hearing in court: to use as evidence such statements obtained at the pre-trial stage is not in
itself inconsistent with paragraphs 3 (d) and 1 of Article 6 … provided the rights of the defence have been
respected. As a rule, these rights require that an accused should be given an adequate and proper opportunity
to challenge and question a witness against him, either at the time the witness was making his statement or at
some later stage of the proceedings” 45.
Consequently, the Court holds that “the rights of the defence are restricted to an extent that
is incompatible with the requirements of Article 6 if the conviction is based solely, or in a
decisive manner, on the depositions of a witness whom the accused has had no opportunity
41
The terms are nearly identical to the ones appearing in Art. 6.3 (d), ECHR.
Brown v. Jamaica, Comm. n. 775/1997, HRC views of 23 March 1999, par. 6.6. See also Garyverdy ogly
Aliev v. Ukraine, Comm. n. 781/1997, views of 7 August 2003, par. 7.2, where a violation of Art. 14.1 was
found in that the author had not been invited at the “reconstruction of the crime”.
43
Compass v. Jamaica, Comm. n. 375/1989, HRC views of 19 October 1993, par. 10.3.
44
Barberà, Messegué and Jabardo case, Appl. nos. 10588/83-10590/83, judgment of 27 October 1988, par.
78.
45
Kostovski case, Appl. n. 11454/85, judgment of 25 October 1989, par. 41.
42
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to examine or to have examined either during the investigation or at trial” 46 . But,
conversely, the Court found no violation of Art. 6.1 and 3 (d), ECHR, in a case where it
had been impossible to organise a confrontation between the applicant and the witness, for
a long period of time due to the absence of the applicant, and later on account of the
witness’s disappearance; where it was impossible to secure the attendance of the witness at
the hearing; and where the national court had apparently based its judgment not only on the
statements of the witness obtained by the police, but also on other evidence corroborating
them47.
6. Conclusive remarks.
The pre-trial phase tends to escape the realm of legal regulations and is, therefore, an ideal
place for all kinds of abuses, which may be relevant in themselves and/or in as much as
they are the sources of prejudice affecting the subsequent trial. A proper protection of the
right to defence in this phase is therefore essential in order to prevent and to remedy to
those abuses, thereby ensuring that the fair trial principle is respected throughout the whole
of the proceedings. Both the Covenant and the European Convention are the testimonies of
an inadequate consideration of the needs of the defence during the preliminary
investigations and the different stages preceding the public hearing. The Court and the
Committee, however, have interpreted the existing provisions, maybe according to
arguments which are not always entirely convincing and not always consistent, but, in the
end, in such a way as to afford the suspects and the accused, before the formal starting of
the trial, the essential minimum guarantees. The underlying criteria is that the various
aspects of the right to defence have to be guaranteed during the whole period that starts at
the moment when a person has been formally charged of a criminal offence, or, before that,
at the moment when he has been deprived of his liberty or has undergone any other
measure affecting his rights, or seriously impairing his interests. It is important that the
standards and the jurisprudence of international bodies continue to develop along these
lines, in order to arrive at a proper recognition of the crucial place of the pre-trial phases in
any fair trial reasoning.
46
A.M. v. Italy case, Appl. n. 37019/97, judgment of 14 December 1999, par. 25. See also the
Unterpertinger case, Appl. n. 9120/80, judgment of 22 October 1986, at par. 28 ff.
47
See the Artner v. Austria case, Appl. n. 13161/87, judgment of 25 June 1992, at par. 20 ff.
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