RIGHT TO A FAIR TRIAL
(Article 6 of the ECHR)
Elizabeta Ivičević Karas
Faculty of Law, University of Zagreb
Right to a fair trial (art. 6)
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. Judgement 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.
Right to a fair trial (art. 6)
Positive obligations of the state
legislation
finances
respect of “reasonable time”
Negative obligations of the state
not to influence the outcome of the procedure
Obligations of all other state authorities
Right to a fair trial (art. 6)
Inspiration found in the Anglo-Saxon legal tradition
There is no specific definition
Undetermined legal standard – the court specifies its
content
Basic principles - defined in English and American law
Right to a fair trial (art. 6)
Autonomous interpretation:
Universal meaning of the notion
General and particular elements
Right to a fair trial (art. 6)
“Criminal charge”, Deweer v. Belgium, 1980.
“Criminal”, Engel et al. v. Netherlands 1976:
1.
the classification of the offence under national law
2.
the nature of the offence
3.
the nature and degree of severity of the sanction
incurred
Right to a fair trial (art. 6)
Independent and impartial tribunal established by law
Independence: lack of subordination to any other organ of
the state (executive)
Impartiality: the judge is not biased in favour of either party
the manner of appointment
the term of office
safeguards from outside pressure
the appearance of independence
Right to a fair trial (art. 6)
The right to a public hearing
protection from “administration of justice in secret
without public scrutiny”
one of the means whereby confidence in the courts
can be maintained
limitations: reasons of public order and security
Right to a fair trial (art. 6)
The right to be tried within a reasonable time, Deweer v.
Belgium, 1980.
from the official notification given to an individual by
the competent authority of an allegation that he has
committed a criminal offence
or
if the situation of the suspect has been substantially
affected
Right to a fair trial (art. 6)
The right to be tried within a reasonable time – assessment
of the period, Eckle v. Germany, 1982.
the conduct of the applicant
the importance of the proceedings for the accused
the complexity of the case
the conduct of the domestic authorities
Right to a fair trial (art. 6)
Examination of cases in concreto and in globo:
Evaluation of facts of the concrete case, and
not of the national law, in the light of ECHR
Certain violations of the right to a fair trial may
be compensated during the proceedings,
under the condition that a trial as a whole had
been fair
Right to a fair trial (art. 6)
General elements of the fair trial:
1. The right to adversarial proceedings
2. Equality of arms
3. The right to a reasoned judgment
(4. The judgment must not be founded on unlawfully
obtained evidence)
Adversary principale
The right to be heard
Prosecution and defence must be given
the opportunity to have knowledge of and
comment on the observations filed and
evidence adduced by the other party
(Kamasinski v. Austria, 1989)
Principle of equality of arms
The right of the party to take the same actions in
the procedure that the opposite party can take
Each party must be afforded a reasonable
opportunity to present his case – including his
evidence – under conditions that do not place
him at a substantial disadvantage vis-a-vis his
opponent
Principle of equality of arms
Basic aspects:
1. Right of the parties to access the
information
- consultation of the file
2. Right of the parties to participate in the
procedure
Dolenec v Croatia, 2009.
violation of Art. 6-1 taken together with Art. 6-3
the applicant was not able to prepare an adequate defence
and was not afforded equality of arms
the applicant (in pre-trial detention) did not have
unrestricted access to the case file despite his repeated
requests
the applicant was not been able to contact the counsel
assigned to him (by telephone, no answer to his request
for his counsel’s visit to the prison)
The right to a reasoned judgment
Quality of the judgment / decision
Informational basis for appeal
Presumption of innocence
Art. 6-2
Everyone charged with a criminal offence
shall be presumed innocent until proved
guilty according to law.
Presumption of innocence
Two rules:
Burden of proof
In dubio pro reo
Right to silence /
Privilege against self-incrimination
Nemo tenetur se ipsum accusare
The defendant must not answer the
questions nor present his defence
Right to silence /
Privilege against self-incrimination
Derived from Art. 6-1 and 2
It refers to defendant’s verbal statements and
not to the material that can be taken
independently of the defendant’s will
(Saunders v UK, 1996)
Materials gained by force and through violation
of Art. 3 (Jalloh v. Germany, 2006)
Right to silence /
Privilege against self-incrimination
Police informer in prison cell?
Defendant’s personal diary?
Right to silence /
Privilege against self-incrimination
A relative right
Drawing of adverse inferences from the accused’s
silence is a matter to be determined in the light of all
the circumstances of the concrete case ( Condron v.
UK, 2000)
Drawing inferences against the defendant is not
allowed if the defendant provides a satisfactory
explanation of his silence
Minimum defence rights
Art. 6-3
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.
Minimum defence rights
Compensation of procedural imbalance between:
State organs
Defendant
Minimum defence rights
Possible limitations:
Protections of certain interests (national security,
protection of vulnerable witnesses or undercover
police agents, protection of fundamental rights of
another person, or protection of public interest)
Only if the limitation is absolutely necessary (restrictive
interpretation)
Adequate compensation of consequences suffered by
the defence
Minimum defence rights
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.
Information regarding the facts and legal
definition/qualification
Information regarding evidence
Promptly?
Minimum defence rights
Everyone charged with a criminal offence
has the right to have adequate time and
facilities for the preparation of his
defence
Adequate time?
Adequate facilities? (legal assistance)
Minimum defence rights
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 to defend oneself
The right to the assistance of counsel of one’s own
choosing
The right to legal aid
The right to contact the counsel
Hanževački v Croatia, 2009.
Violation of Art. 6-1 taken together with Art. 6-3-c)
The concluding hearing was held in absence of the applicant’s
counsel, although he asked by telephone that the hearing be
adjourned on account of his sudden illness
Although the applicant informed the court that he did not wish to
defend himself in the absence of his counsel, the presiding judge
decided to hold a hearing
The judgement was pronounced
ECtHR: “one of the most important aspects of a concluding hearing in
criminal trials was an opportunity for the defence, as well as for the
prosecution, to present their closing arguments”.
Prežec v Croatia, 2009.
Violation of Art. 6-1 taken together with Art. 6-3-c)
the applicant wasn’t granted free legal
assistance at the trial stage
the lawyer assigned to him on appeal had not
contacted him
Minimum defence rights
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.
The right to test witness evidence
Kovač v Croatia, 2007.
violation of minimum defence right art. 6-3-d):
Right to examine the prosecution witness
The defendant didn’t have, at any stage of the procedure, an
opportunity to examine a witness, whose testimony was the only
evidence of the defendant’s guilt and the ground for his conviction
At the trial stage, the court briefly examined the witness, in absence
of the defendant
Since the defendant hasn’t been summoned according to the law to
a hearing before the investigating judge, the defendant didn’t have
an opportunity to evaluate the witness testimony logically and
psychologically
Minimum defence rights
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.
The right to free assistance of interpreter
RIGHT TO A FAIR TRIAL
(Article 6 of the ECHR)
Elizabeta Ivičević Karas
Faculty of Law, University of Zagreb