International human rights standards for the right to defence from a European perspective:
Veronique Joosten
The Council of Europe and the European Convention on Human Rights:
Europe has several institutions concerned with human rights.1 The 1975 Final Act of Helsinki
lists ‘respect for human rights and fundamental freedoms’ as one of the principles of the
Organisation for Security and Co-operation in Europe.2 While human rights protection is not
their primary concern the 1992 Treaty on the European Union and the jurisprudence of the
European Court of Justice do not disregard human rights either. But the human rights scheme
set up by the Council of Europe is without doubt the most prominent system within the
European arrangements for the promotion and protection of human rights. The Council of
Europe is a regional intergovernmental organisation of democratic states committed to the
rule of law and the enjoyment by all persons within their jurisdiction of human rights and
fundamental freedoms.3 The organisation was established in 1949 by a group of Western
European countries and has now 45 member states4, including many Eastern European states.
The Council’s first activity in the field of human rights was the conclusion of the 1950
Convention for the Protection of Human Rights and Fundamental Freedoms (the European
Convention on Human Rights).5
This Convention entered into force in 1953. It proclaims a catalogue of civil and political
rights and freedoms and establishes its own institutional framework to supervise compliance.
Subsequent protocols add further rights and liberties. Other protocols involve institutional
changes. Originally, the Convention created two institutions for the enforcement of the States
Parties’ obligations: the part-time European Court of Human Rights and the European
Commission of Human Rights. The Committee of Ministers, a body that already existed, was
the third organ responsible for monitoring implementation of the rights. The recognition of
the right of individual application was optional for States Parties. Protocol No. 11 restructured
the supervisory mechanism and put a new system into place, which came into force on 1
November 1998.6 A single, full-time Court replaced the Court and the Commission and the
1
See for more information on the European human rights system: T. BUERGENTHAL, International Human
Rights in a nutshell (2nd ed.), St. Paul, West Publishing Co., 1995, 102-173.; J.G. MERRILLS, ‘Promotion and
protection of human rights within the European Arrangements’, in R. HANSKI and M. SUKSI (eds.) , An
Introduction to the International Protection of Human Rights. A Textbook (2nd ed.), Turku, Institute for Human
Rights, Abo Akademi University, 1999, 275-285.
2
Until 1994 called the Conference on Security and Co-operation in Europe.
3
See the Statute of the Council of Europe.
4
The 45 member states of the Council of Europe are Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium,
Bosnia & Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia,
Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta,
Moldova, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, San Marino, Serbia and
Montenegro, Slovakia, Slovenia, Spain, Sweden, Switzerland, “The former Yugoslav Republic of Macedonia”,
Turkey, Ukraine and the United Kingdom.
5
Other human rights treaties concluded within the Council of Europe worth mentioning are the 1961 European
Social Charter, the 1987 European Convention for the Prevention of Torture and the 1995 Framework
Convention for the Protection of National Minorities.
6
A reform of the enforcement mechanism was necessitated by the growing number of cases, partly due to the
accession of new Contracting States from 1990 onwards. To illustrate the increasing caseload: between 1998 and
2001 the number of applications registered rose from 5,979 to 13,858, an increase of approximately 130%.
1
Committee of Ministers’ adjudicative role was abolished. Recognizing the right to individual
application was made compulsory for States Parties.7 The treatment of a person facing
criminal charges by the public authorities in Europe is largely determined by the relevant
principles derived from the above-mentioned European Convention on Human Rights. The
case law of the European Court on Human Rights (and the Commission) will therefore be our
principal guide in formulating the standards for the right to defence from a European
perspective.
Article 6 European Convention on Human Rights: the right to a fair trial
Article 6 guarantees ‘a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law’. The Court has held that Article 6 occupies a
‘central position’ in the Convention and ‘reflects the fundamental principle of the rule of
law’.8 Because of its fundamental importance to the operation of democracy, the Court has
adopted a broad interpretation of this provision: ‘In a democratic society within the meaning
of the Convention, the right to a fair administration of justice holds such a prominent place
that a restrictive interpretation of Article 6 (1) would not correspond to the aim and the
purpose of that provision.’9
Article 6 is constructed in another, more detailed way than most of the other articles,
guaranteeing other rights and freedoms. In those articles the first sentence or paragraph
contains a general affirmation of the right, while the following paragraph sets out the
limitations to which that right may be subjected. In general such limitations need to be
prescribed by law and necessary in a democratic society to safeguard some aspect of the
public interests. Article 6 is composed of three paragraphs. The first paragraph applies to both
civil and criminal proceedings, whereas the second and third paragraphs apply only to
criminal proceedings. Thus, for a person facing a criminal charge, Article 6 in its entirety is
relevant.
The question now is to what stage of the criminal proceedings Article 6 applies? It is clear
from the case law that Article 6 covers the proceedings as a whole: the court proceedings as
well as the stages which both precede and follow them, i.e. pre-trial police investigations and
post-hearing procedures such as the execution of a judgement. If a right of appeal is provided
for in domestic law than this procedure also falls under the guarantees of Article 6. But the
way in which the guarantees apply must depend on the special features of such proceedings.
When considering whether Article 6 has been complied with at any particular stage, the
entirety of the proceedings conducted in the domestic legal order has to be taken into account.
The functions in law and practice of the appellate body, and the powers and the manner in
which the interests of the parties are presented and protected have to be considered too.
Deficiencies at one stage may be compensated for at another stage.10
See J.G. MERRILLS, ‘The Council of Europe (I): The European Convention on Human Rights’, in R.
HANSKI and M. SUKSI (eds.), o.c., 287-306.
8
Sunday Times v. United Kingdom, 26 April 1979, para. 55.
9
Delcourt v. Belgium, 17 January 1970, para. 25.
10
A. GROTRIAN, Article 6 of the European Convention on Human Rights. The right to a fair trial, Strasbourg,
Council of Europe Press, 1994, 25; N. MOLE and C. HARBY, The right to a fair trial. A guide to the
implementation of Article 6 of the European Convention on Human Rights, Strasbourg, Council of Europe
Publishing, 2001, 10.
7
2
The next question, relevant for the applicability of Article 6, is what the wording ‘criminal
charge’ in the Convention exactly means? In its answer, the Court has stressed the autonomy
of this concept under the Convention. The definition given in domestic law is not decisive.
The word ‘charge’ should be given a ‘substantive rather than a formal meaning’ and the
Court will ‘look behind the appearances and investigate the realities of the procedure in
question’.11 The Court’s definition of a ‘charge’ is ‘the official notification given to an
individual by the competent authority of an allegation that he has committed a criminal
offence, or where the situation of the suspect has been substantially affected’ and ‘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’.12
Whether such a ‘charge’ is considered as criminal, disciplinary or administrative in the
domestic legal system is not a determinative factor for the Court. Of course, the normal
exercise of Convention rights, for example freedom of speech, cannot be a criminal offence.
For the purpose of determining if a charge is ‘criminal’ in the sense of Article 6, the Court has
developed three criteria in the Engel case. The first factor is the classification in domestic law.
If domestic law categorizes a particular charge as ‘criminal’, the charge will ipso facto be a
‘criminal’ charge for the purposes of the Convention. Is a particular charge not described as
‘criminal’ under national law, than the Convention organs must consider whether the charge
is nonetheless ‘criminal’ within the autonomous Convention meaning. Here the two
remaining criteria are of use. First, the nature of the offence plays a role. To verify the nature
of the offence the scope of the violated norm and the purpose of the penalty need to be
examined. If the norm in question only applies to a limited group of people, it is probably a
disciplinary rule, while a norm of general effect is likely to be a criminal one. The nature of
the penalty helps to distinguish criminal from purely administrative sanctions. Last factor is
the nature and severity of the penalty. Deprivation of liberty as a penalty generally makes a
norm criminal, but not every deprivation of liberty makes Article 6 applicable. In case the
penalty is a fine, the intention behind it needs to be established: is it a pecuniary compensation
for damage or a punishment to deter re-offending?13
It cannot be left unmentioned that there also exist underlying principles of ‘fairness’ that are
not articulated in Article 6 itself but are important to understanding its operation. The most
important of the unspoken principles is the principle of ‘equality of arms’, i.e. the idea that
each party to a proceeding should have equal opportunity to present his case and that neither
should enjoy any substantial advantage over his opponent. The privilege against self –
incrimination, which appears in the International Covenant on Civil and Political Rights, is
not explicitly included in the Convention either. Nevertheless, the Court has held that the right
to silence and the right not to incriminate oneself are generally recognised international
standards which lie at the heart of the notion of a fair criminal procedure under Article 6 § 1.14
The presumption of innocence in Article 6 § 215
11
Deweer v. Belgium, 27 February 1980, para. 44.
Ibid., para. 46, Eckle v. Germany, 15 July 1982, para. 73, Foti and others v. Italy, 10 December 1982, para. 52.
13
D. GOMIEN, Short guide to the European Convention on human rights, Strasbourg, Council of Europe
Publishing, 1998, 37; A. GROTRIAN, o.c., 20-22; N. MOLE and C. HARBY, o.c., 15-18.
14
Saunders v. United Kingdom, 17 December 1996, para. 23; D. GOMIEN, o.c., 38-39, 43.
15
N. MOLE and C. HARBY, o.c., 50-51; C. OVEY and R. WHITE, The European Convention on Human
Rights (3th ed.), Oxford, Oxford University Press, 2002, 177.
12
3
Article 6 § 2 says that ‘everyone charged with a criminal offence shall be presumed innocent
until proved guilty according to law’.
The Court has explained that this right ‘requires, inter alia, that when carrying out their
duties, members of a court should not start with the preconceived idea that the accused has
committed the offence charged; the burden of proof is on the prosecution, and any doubt
should benefit the accused’.16 This does not entail a prohibition of rules transferring the
burden of proof to the accused nor of presumptions of fact or law. Such presumptions operate
in every legal system. Clearly, Article 6 § 2 does not prohibit such presumptions in principle.
It does, however, require the Contracting States to remain within certain limits in this respect
as regards criminal law.
The principle of the presumption of innocence is not merely a procedural guarantee; the
provision also places a duty on legislators to respect the rights of the accused when framing
offences. Other State organs are also bound by this principle.
The minimum standards in Article 6 § 3
Article 6 § 3 contains a non-exhaustive list of certain specific aspects of the right to a fair trial
that are described as ‘minimum rights’. The relationship between this paragraph and
paragraph 1 has been established by the Court as ‘that of the general to the particular’. Thus,
non-fulfilment of the requirements of a fair trial is possible, even if the minimum guarantees
in §3 are respected. In other words, even if the Court finds that the guarantees in Article 6 § 3
are met in a particular case, it can still conclude that Article 6 § 1 has been violated.
A. The right to prompt intelligible notification of charges:
‘Everyone charged with a criminal offence has the right to be informed promptly, in a
language which he understands and in detail, of the nature and cause of the accusation
against him’
It goes without saying that the right to be informed of the accusation is essential to the
preparation of a defence. This provision is aimed at the information that is required to be
given to the accused at the time of the charge or the commencement of the proceedings. It
demands generally more specific and detailed information of the accusation than is required
by Article 5 § 2.17
B. Adequate time and facilities:
‘Everyone charged with a criminal offence has the right to have adequate time and facilities
for the preparation of his defence’
This provision is closely connected with Article 6 § 3 a and c. At the same time, the
requirement to conclude a trial within a reasonable time has to be taken into account. The
proper balance between all these requirements has to be achieved. Consequently, the Court
16
17
Barbera, Messegué and Jabardo v. Spain, 6 December 1988, para. 77.
N. MOLE and C. HARBY, o.c., 52.
4
has taken a pragmatic view in its interpretation of this minimum right. What forms an
‘adequate time’ for preparation of the defence will depend on all the circumstances of the
case, including the nature and complexity of the case and the stage the proceedings have
reached. The ‘facilities’ necessary for the preparation of the defence will also depend largely
on the particular circumstances. Yet the right of the accused to communicate freely with his
lawyer is considered as essential to the concept of a fair trial. Still, this right is not absolute
either and may be subject to restrictions in certain exceptional circumstances. Another
illustration of the practical approach by the Court is that access by an accused’s defence
counsel to the relevant files suffices. The accused himself has no automatic independent right
to review his files. Lastly, it is for an applicant alleging a breach of this provision to show in
each case that a particular ‘facility’ was necessary to enable him adequately to prepare his
defence.18
C. The right to defence in person or through legal assistance:
‘Everyone charged with a criminal offence has the right to defend himself in person or
through legal assistance of his own choosing or, if he has not sufficient means to pay for
legal assistance, to be given it free when the interests of justice so require’
The right for an accused to defend himself in person is not an absolute right. The state is free
to require that a defendant be assisted by a lawyer and to regulate the appearance of lawyers
in its courts. A defendant has the right to the legal assistance of his own choosing provided
he has the necessary means. If not, he can only be required to defend himself in person if the
‘interests of justice’ do not require legal representation. The right to be given free legal
assistance when the interests of justice so require is not an alternative to the right to defend
oneself, but an independent right to which objective standards apply. The right to legal aid
for an accused depends on two circumstances. Firstly, the accused has to lack sufficient
means to pay for legal assistance. Secondly, the interests of justice require legal aid to be
granted.19 The question as whether ‘the interests of justice’ require the grant of free legal
assistance will largely depend on the circumstances and it will be for the competent
authorities to assess the matter in the first place. Relevant factors will include the seriousness
of the case and the importance of what is at stake for the accused and the relative complexity
of the facts and law involved. ‘Where the deprivation of liberty is at stake, the interests of
justice in principle call for legal representation’.20 It is not enough for the authorities merely
to nominate a lawyer to act for him, since the accused is entitled to legal assistance which is
‘practical and effective’ and not merely ‘theoretical and illusory’.21
D. The right to witness attendance and examination22:
‘Everyone charged with a criminal offence has the right to examine or have examined
witnesses against him and to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him’
18
D. GOMIEN, o.c., 46-47; A. GROTRIAN, o.c., 49-50; N. MOLE and C. HARBY, o.c., 54-56.
D. GOMIEN, o.c., 48; A. GROTRIAN, o.c., 51-53; N. MOLE and C. HARBY, o.c., 57-59.
20
Benham v. United Kingdom, 10 June 1996, para.
21
N. MOLE and C. HARBY, o.c., 57.
22
A. GROTRIAN, o.c., 55; N. MOLE and C. HARBY, o.c., 60-62.
19
5
This provision is an aspect of the general principle of equality of arms. It does not give the
accused an absolute right to call witnesses. Domestic law can lay down conditions for the
admission of witnesses and the competent courts can refuse to allow a witness to be called if
it appears that the evidence will not be relevant. It is therefore for the applicant to establish
that failure to hear a particular witness prejudiced his case.
In principle, all evidence relied on by the prosecution should be produced in the presence of
the accused at a public hearing with a view to adversarial argument. A problem will therefore
arise with anonymous witnesses. There have to be counterbalancing procedures which
preserve the right to defence. These counterbalancing procedures will vary from case to
case. Important factors are whether the accused or his lawyer was present when the witness
was questioned, whether questions could be asked and whether the judge was aware of the
identity of the witness. Even if the counterbalancing procedures suffice, a conviction should
not be based solely or to a decisive extent on evidence from anonymous witnesses.
E. The right to an interpreter:
‘Everyone charged with a criminal offence has the right to have the free assistance of an
interpreter if he cannot understand or speak the language used in court’
This provision implies that a defendant cannot be ordered to pay for the costs of an
interpreter, even if he is convicted. It does not require written translations of all documentary
material disclosed before trial.23
The additional rights in Protocol No. 7:
Protocol No. 724 includes a number of additional rights in respect of the criminal process.
Because Article 6 of the Convention does not itself guarantee a right of appeal, Article 2 of
the Protocol provides that ‘everyone convicted of a criminal offence by a tribunal shall have
the right to have his conviction or sentence reviewed by a higher tribunal.’ The second
paragraph permits exceptions to this right of appeal in criminal matters.
The right to compensation for wrongful conviction or miscarriage of justice is guaranteed in
Article 3. Such compensation will not be granted when it is proved that the non-disclosure of
the unknown fact in time is wholly or partly attributable to the person who has suffered the
punishment.
Article 4 introduces a rule against double jeopardy by stating that ‘no one shall be liable to be
tried or punished again in criminal proceedings under the jurisdiction of the same State for
an offence for which he has already been finally acquitted or convicted in accordance with
the law and penal procedure of that State.’ This right not to be tried or punished twice is
limited to proceedings in a single State.
There is little case law concerning these additional rights guaranteed by Protocol No. 7. None
of the cases concerns new member states.25
23
24
N. MOLE and C. HARBY, o.c., 63.
36 member states have ratified this Protocol.
6
New member states and the Strasbourg jurisprudence relating to Article 6 § 3:
The jurisprudence related to Article 6 represents the greater part of the voluminous case law
of the European Court on Human Rights. No other article of the Convention has generated
more case law. Giving an overview of the entire Article 6 case law is impossible. Our aim is
therefore to reflect the flavour of the Strasbourg jurisprudence about the right to defence by
reviewing the Article 6 § 3 cases filled against the new member states26. Even though only a
few cases dealing with the minimum standards have been decided upon against those new
member states, they reveal the tendencies of the Court’s jurisprudence on the topic.
The minimum rights guaranteed in Article 6 §3 a and b were at stake in the cases of Dallos
v. Hungary and Sipavicius v. Lithuania. The outcome in the two cases was the same - no
violation of Article 6. Assessing the fairness of the proceedings as a whole, the Court was
satisfied that any defects in the proceedings before the lower courts were cured before a
higher court.
Before reaching that conclusion, the Court reminded that the fairness of proceedings must be
assessed with regard to the proceedings as a whole. The provisions of paragraph 3 (a) of
Article 6 point to the need for special attention to be paid to the notification of the
“accusation” to the defendant. Particulars of the offence play a crucial role in the criminal
process, in that it is from the moment of their service that the suspect is formally put on
written notice of the factual and legal basis of the charges against him. Article 6 § 3 (a)
affords the defendant the right to be informed not only of the “cause” of the accusation, that is
to say the acts he is alleged to have committed and on which the accusation is based, but also
the legal characterisation given to those acts. That information should be detailed.
The scope of the above provision must in particular be assessed in the light of the more
general right to a fair hearing guaranteed by Article 6 § 1. In criminal matters the provision of
full, detailed information concerning the charges against a defendant, and consequently the
legal characterisation that the court might adopt in the matter, is an essential prerequisite for
ensuring that the proceedings are fair. In this respect it is to be observed that Article 6 § 3 (a)
does not impose any special formal requirement as to the manner in which the accused is to be
informed of the nature and cause of the accusation against him. Furthermore, it has to be kept
in mind that sub-paragraphs (a) and (b) of Article 6 § 3 are connected and that the right to be
informed of the nature and the cause of the accusation must be considered in the light of the
accused’s right to prepare his defence.27
Subsequently, three different cases dealing with various aspects of the right to
representation and legal aid in Article 6 § 3 c have been brought before the European Court
on Human Rights against Poland.
The right of everyone charged with a criminal offence to defend himself in person was
infringed in the Belziuk case. The fundamental principles, which emerge from the Court’s
25
5 cases concern Article 2 (3 against France, 1 against Finland and 1 against Iceland) and 11 cases deal with
Article 4 (9 against Austria, 1 against France and 1 against Switserland).
26
We consider states becoming a State Party after 1990 as new member states. These states are Albania,
Andorra, Armenia, Azerbaijan, Bosnia & Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, Georgia,
Hungary, Latvia, Lithuania, Moldova, Poland, Romania, Russian Federation, Serbia and Montenegro, Slovakia,
Slovenia, “The former Yugoslav Republic of Macedonia”, and Ukraine.
27
Dallos v. Hungary, 1 March 2001, para. 47; Sipavicius v. Lithuania, 10 July 2002, paras. 27-28.
7
jurisprudence relating to Article 6 § 1 in conjunction with paragraph 3 (c), were brought to
mind by the Court:
(i)
Criminal proceedings form an entity and the protection afforded by Article 6 does not
cease with the decision at first instance. A State is required to ensure also before courts of
appeal that persons amenable to the law shall enjoy before these courts the fundamental
guarantees contained in this Article.
(ii)
A person charged with a criminal offence should, as a general principle based on the
notion of a fair trial, be entitled to be present at the first-instance trial hearing. However, the
personal attendance of the defendant does not necessarily take on the same significance for an
appeal hearing. Indeed, even where an appellate court has full jurisdiction to review the case
on questions both of fact and law, Article 6 does not always entail rights to a public hearing
and to be present in person. In assessing this question regard must be given to, inter alia, the
special features of the proceedings involved and the manner in which the defence’s interests
are presented and protected before the appellate court, particularly in the light of the issues to
be decided by it and their importance for the appellant.
(iii) The principle of equality of arms is only one feature of the wider concept of a fair trial,
which also includes the fundamental right that criminal proceedings should be adversarial.
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. Various ways are conceivable in which national
law may secure that this requirement is met. However, whatever method is chosen, it should
ensure that the other party is aware that observations have been filed and gets a real
opportunity to comment thereon. Mr Belziuk, who had been sentenced to three years’
imprisonment, was not present at the appeal hearing. Considering what was at stake for him,
the issues to be determined by the appeal court, as a matter of fair trial, were not properly
examined without a direct assessment of the evidence given by the applicant in person. 28
The question whether pre-trail proceedings are covered by the guarantees in Article 6 in
general and Article 6 § 3 c in particular is dealt with in the Berlinski case.
Even if 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”, it does not follow
that this provision of the Convention has no application to pre-trial proceedings, according to
the Court. Thus, Article 6 - especially paragraph 3 - may be relevant before a case is sent for
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. The manner in which Article 6 §§ 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. Although Article 6 will normally
require that the accused be allowed to benefit from the assistance of a lawyer at the initial
stages of police interrogation, this right, which is not explicitly set out in the Convention, may
be subject to restriction 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. The
applicants in question had no defence council for more than a year because the authorities
ignored their request for an official lawyer to be appointed. This restriction deprived them of
the right to adequately defend themselves during the investigation and trial.29
The case of R. D. against Poland addresses the issue of legal assistance at the other end of
the proceeding, i.e. in cassation proceedings.
28
29
Belziuk v. Poland, 25 March 1998, paras. 37-38.
Berlinski v. Poland, 20 September 2002, paras. 75-76.
8
Before looking into the concrete situation of the case, the Court reiterates some general
principles as regards the right to legal assistance. The right of an accused to free legal
assistance, laid down in Article 6 § 3 (c) of the Convention, is one of the elements inherent in
the notion of fair trial. That provision attaches two conditions to this right. The first is lack of
“sufficient means to pay for legal assistance”; the second is that “the interests of justice” must
require that such assistance be given free. The manner in which Article 6 is to be applied to
courts of appeal or of cassation depends on the special features of the proceedings in question.
Nevertheless, a State which does institute such courts is required to ensure that persons
amenable to the law shall enjoy before them the fundamental guarantees of fair trial contained
in that Article, including the right to free legal assistance. In discharging that obligation, the
State must, moreover, display diligence so as to secure to those persons the genuine and
effective enjoyment of the rights guaranteed under Article 6.30
In assessing the first requirement of “sufficient means to pay for legal assistance”, the Court
cannot substitute itself for the national courts in order to evaluate the applicant’s financial
situation at the material time but must review whether those courts, when exercising their
power of appreciation in respect of the assessment of evidence, acted in accordance with
Article 6 § 1. In the present case there were reasonable grounds to consider that the
applicant’s financial means were limited.31
In previous cases before it, the Court has set out the applicable criteria for the second
requirement of the “interest of justice”. It has, for instance, held that the nature of the charges
against the applicant, the need to develop appropriate arguments on complicated legal issues
or the complexity of the cassation procedure may necessitate that he be granted free legal
assistance. There is, however, a primary, indispensable requirement of the “interests of
justice” that must be satisfied in each case. That is the requirement of a fair procedure before
courts, which, among other things, imposes on the State authorities an obligation to offer an
accused a realistic chance to defend himself throughout the entire trial. In the context of
cassation proceedings, that means that the authorities must give an accused the opportunity of
putting his case in the cassation court in a concrete and effective way. In that regard, the
Polish law does not give a convicted appellant any choice: a defendant has to be assisted by
an advocate in the preparation of a cassation appeal, an appeal filed by himself being rejected.
Not only did the Court of Appeal refuse to grant R.D. further free assistance but it also
communicated its refusal to him eight working days before the expiry of the time limit for the
submission of his cassation appeal. These circumstances did not give the applicant a realistic
opportunity of having his case brought to and defended in the cassation court in a “concrete
and effective way”. 32
Finally, the last two cases of Solakov v. The former Yugoslav Republic of Macedonia and
of Birutis and others v. Lithuania concern Article 6 § 3 d, which provides the right to
witness attendance and examination.
As a general rule, the Court declares that it is for the national courts to assess the evidence
before them as well as the relevance of the evidence which defendants seek to adduce. More
specifically, Article 6 § 3 (d) leaves it to them to assess whether it is appropriate to call
witnesses, in the “autonomous” sense given to that word in the Convention system. It “does
not require the attendance and examination of every witness on the accused’s behalf: its
30
R.D.v. Poland, 18 March 2002, paras. 43-44.
Ibid., paras. 45-46.
32
Ibid., paras. 48-51.
31
9
essential aim, as is indicated by the words ‘under the same conditions’, is a full ‘equality of
arms’ in the matter”. The concept of “equality of arms” does not, however, exhaust the
content of paragraph 3 (d) of Article 6, nor that of paragraph 1 of which this phrase represents
one application among many others. The Court’s task under the Convention is not to give a
ruling as to whether statements of witnesses were properly admitted as evidence, but rather to
ascertain whether the proceedings as a whole, including the way in which evidence was taken,
were fair. Despite the refusal to summon two additional witnesses, the Court found that this was
the case for the proceedings against Solakov, who was convicted for drug trafficking. 33
Another problem relates to the right of the accused to cross-examine the witnesses against
him, i.e. the notion of the anonymous witness.
Criminal evidence must normally be produced at a public hearing, in the presence of the
accused, with a view to adversarial argument. There are exceptions to this principle, but they
must not infringe the rights of the defence. As a general rule, paragraphs 1 and 3 (d) of Article
6 require that the defendant be given an adequate and proper opportunity to challenge and
question a witness against him, either when he makes his statements or at a later stage.
As stated in previous cases, the use of statements made by anonymous witnesses to found a
conviction is not in all circumstances incompatible with the Convention. However, if the
anonymity of prosecution witnesses is maintained, the defence will be faced with difficulties
which criminal proceedings should not normally involve. Accordingly, the Court has
recognised that in such cases Article 6 § 1, taken together with Article 6 § 3 (d), require that
the handicaps under which the defence labours be sufficiently counterbalanced by the
procedures followed by the judicial authorities. With this in mind, an applicant should not be
prevented from testing the anonymous witness’s reliability. In addition, no conviction should
be based either solely or to a decisive extent on anonymous statements. The courts’ failure in
the Birutis case to question anonymous witnesses, and to conduct a scrutiny of the manner
and circumstances in which the anonymous statements had been obtained, violated the
applicants’ defence rights and their right to a fair trial under Article 6 §§ 1 and 3 (d). 34
Conclusion:
The European Court on Human Rights has not yet considered a great number of cases
regarding the minimum standards in Article 6 § 3. Only seven cases involving just four of the
new member states, namely Hungary, Lithuania, Macedonia and Poland, have been brought
before the Court.
The cases reaching the Court have been touching on diverse aspects of the minimum
standards, like the right to prompt intelligible notification of charges and to adequate time and
facilities, the right to representation and legal assistance and the right to witness attendance
and examination. They demonstrate that the new member states are struggling with the same
issues as the other member states. The jurisprudence of the Court does not reveal any
innovations; on the contrary, it confirms the earlier case law.
In a small majority of the cases - four out of seven - the Court holds that Article 6 §3 has been
violated. Three of those violations concern the right to representation and legal aid in
different stages of the criminal proceedings in Poland, while the fourth case involves the
problem of anonymous witnesses in Lithuania. No violation was found in another case
33
34
Solakov v. The former Yugoslav Republic of Macedonia, 31 October 2001, para. 57.
Birutis and others v. Lithuania, 28 June 2002, paras. 28-29, 34.
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concerning witness attendance against Macedonia. In two cases, against Hungary and
Lithuania, the right to prompt intelligible notification of the charge and to adequate time and
facilities were not violated either.
In this respect, it is important to mention that a complaint will only be held admissible by the
Court when all domestic remedies have been exhausted. Consequently, almost all cases
alleging violations of Article 6 will have preceded the highest national courts before reaching
Strasbourg. The Court will frequently find no violation of Article 6 because it considers that
the proceedings ‘taken as a whole’ were fair, as a higher court was able to rectify the errors of
the lower court.35
Finally, in case the Court establishes a violation of Article 6, such a violation is often not
attributable to wrong national laws, but to the wrong practice of the courts. Therefore, the
challenge for the new member states is not legal reforms, but adjusting the practice of the
courts.
35
N. MOLE and C. HARBY, o.c., 6.
11
Appendix:
Article 6 – Right to a fair trial
1. 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. Judgment shall be pronounced publicly
but the press and public may be excluded from all or part of the trial in the interests of morals,
public order or national security in a democratic society, where the interests of juveniles or
the protection of the private life of the parties so require, or to the extent strictly necessary in
the opinion of the court in special circumstances where publicity would prejudice the interests
of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty
according to law.
3. 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;
b. to have adequate time and facilities for the preparation of his defence;
c. to defend himself in person or through legal assistance of his own choosing or, if he has not
sufficient means to pay for legal assistance, to be given it free when the interests of justice so
require;
d. to examine or have examined witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against him;
e. to have the free assistance of an interpreter if he cannot understand or speak the language
used in court.
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Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental
Freedoms
Article 2 – Right of appeal in criminal matters
1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his
conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the
grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences of a minor character, as
prescribed by law, or in cases in which the person concerned was tried in the first instance by
the highest tribunal or was convicted following an appeal against acquittal.
Article 3 – Compensation for wrongful conviction
When a person has by a final decision been convicted of a criminal offence and when
subsequently his conviction has been reversed, or he has been pardoned, on the ground that a
new or newly discovered fact shows conclusively that there has been a miscarriage of justice,
the person who has suffered punishment as a result of such conviction shall be compensated
according to the law or the practice of the State concerned, unless it is proved that the nondisclosure of the unknown fact in time is wholly or partly attributable to him.
Article 4 – Right not to be tried or punished twice
1. No one shall be liable to be tried or punished again in criminal proceedings under the
jurisdiction of the same State for an offence for which he has already been finally acquitted or
convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in
accordance with the law and penal procedure of the State concerned, if there is evidence of
new or newly discovered facts, or if there has been a fundamental defect in the previous
proceedings, which could affect the outcome of the case.
3. No derogation from this Article shall be made under Article 15 of the Convention.
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