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26 Cards in this Set
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Article 6: Right to a Fair Trial (Criminal Justice Aspects) |
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6(1)
Meaning of criminal charge |
Engel v Netherlands - if national law classifies the proceedings as criminal, Strasbourg will accept that, but if not it will consider: (1) the nature of conduct at issue in domestic courts and (2) the nature of the punishment imposed in domestic proceedings. In this case, a few months imprisonment was sufficient for it to be considered a “criminal charge”. The more serious the punishment, the more likely it is to be classified as a “criminal charge”. Couldn’t let MS exclude crimes from Art 6 by saying they were not a crime under domestic law so it was important for Strasbourg to have the final say.
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Ozturk v Germany |
Regulatory prohibition (driving misdemeanour) and a £15 fine as punishment was enough for it to be classified as a “criminal charge”. |
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Fair hearing
(i) Equality of arms |
Rowe & Davis v UK - both the prosecution and defence must know about the evidence possessed by the other party and be able to comment on it, and in this case they did not have the ability to do that as some information was kept from them therefore there was a breach. |
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(ii) Right to silence |
John Murray v UK - Strasbourg said there is a qualified right to silence in Article 6 and the factors to consider as to whether there is a breach are: the circumstances; the weight given to the silence; and the compulsion imposed on the person to break their silence. On the facts there was no breach as he wasn't convicted on the basis of his silence (it was given little weight as he was caught red-handed) and there was minimal compulsion to breach his silence. |
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Saunders v UK |
Told him if he didn't answer questions he could be held in contempt of court and imprisoned for up to 2 years. These answers were then relied on in his criminal trial and he was given a lengthy prison sentence. There was a violation of his right to silence. |
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O'Halloran and Francis v UK |
Argued that being compelled to disclose who was driving their vehicles at the time they had been speeding, with the threat of points on their licence, was a violation of their right to silence. Court said no as it was a special regulatory regime and driving is a privilege and potentially dangerous so therefore more restrictions can be imposed on someone having the privilege to drive – no breach. Finding a breach would have undermined all speed camera enforcement across Europe. |
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(iii) Right of defendants to participate effectively in their trials |
V v UK - defendants were tried in an adult court despite only being 11-years-old. Court was modified for them – they had full legal representation and social workers who accompanied them, courts hours were adjusted to mirror the school day and the floor of the dock was raised so they could see. But these were insufficient for V to have any involvement in the case so there was a breach – no other MSs would have allowed an 11 year old to be tried before ordinary courts. |
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(iv) Admission of evidence |
Schenk v Switzerland - Strasbourg refused to get involved in issues of admissibility of evidence as they are for national law, and it is up to the individual criminal justice system of the MS to deem whether evidence is admissible or not. They would look at the overall fairness of his trial, but as his lawyer had been allowed to challenge the circumstances in which the incriminating recording was made there was no breach of his right to a fair trial. |
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(v) Overall Assessment |
Barbera, Messegue & Jabardo v Spain - the day before their trial the location was changed from Barcelona to Madrid, it was a very short trial and they were convicted. Court said the changing of location and everything else amounted to unfair proceedings and a breach of Article 6. |
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To determine criminal charges within a reasonable time |
Konig v Germany - three factors to take into account as to whether it has been within a reasonable time: (1) the behaviour of the State, prosecution and other State officials/authorities (i.e. whether they have attempted to delay proceedings); (2) behaviour of the defendant, who will be the applicant at Strasbourg (has he/she delayed the domestic criminal proceedings - if so Strasbourg will deduct that amount of time from how much time the State is responsible for) and; (3) the complexity of the case. Time period includes any appellate decisions, but court has never laid down a certain period which would be a breach due to the 47 different criminal justice systems. |
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Independent and Impartial Tribunal Independence |
Incal v Turkey - independence requires the judges to be separate from the government and other state bodies. Here they were military judges and the military was controlled by the government, therefore the judge was not independent and there was a breach. |
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Impartiality |
Piersack v Belgium - two possible claims: subjective challenge saying that my trial judge was biased and then the court starts with the assumption that all criminal judges are impartial, therefore you’ve got to prove lack of impartiality and that is very hard to establish. The second option is the objective challenge – if you can show there are legitimate doubts objectively that your trial judge wasn’t impartial then the onus is on the state to prove that the judge was impartial. This was the one that Piersack brought and he won as the judge who convicted him had been head of the prosecution service which charged him – the implication of this case is that former prosecutors must not then sit as a judge on cases which they have had prior involvement in as a prosecutor. |
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Public pronouncement of judgement |
Pretto v Italy - this requirement can be satisfied by making the text of judgements publicly available, it does not have to be read out. |
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6(2) Presumption of innocence |
Minelli v Switzerland - national criminal courts must not say anything will indicate that someone is guilty unless there has been a fair trial resulting in conviction so in this case the fact that a court said M would have been guilty (if the claim wasn't time-barred) was a breach. |
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6(3) (a) To be informed in detail and in language they understand of the accusations against them |
Brozicek v Italy - he was written to in Italian detailing the charges against him, specifying the part of the criminal code the charges were found in and details about the alleged times and dates he had committed them in but it was a language he didn't understand and he sent them letters telling them this. Strasbourg said it is an obligation of the state to provide the info in a language understood by the defendant but the information was sufficiently detailed. |
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(b) To have adequate time/facilities for the preparation of defence |
Ocalan v Turkey - charges and factual background amounted to 17,000 pages which were served on O only two/three weeks before his trial began. His lawyers claimed this was inadequate and Strasbourg found a breach. |
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(c) To be provided with free legal assistance when the interests of justice so require and persons cannot afford to pay |
Artico v Italy - he was appointed a lawyer as his case was complex and he couldn't afford one but the lawyer did not actually provide any assistance and A lost his appeal. Strasbourg said the rights under the Convention must be applied in a way which confers a practical and effective benefit and practically and effectively the lawyer was no use to him so there was a breach. |
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Benham v UK |
No legal aid available at the time. Strasbourg said if you are facing imprisonment and can't afford your own lawyer, the state will be expected to provide one for you. |
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John Murray v UK |
Strasbourg found an implied right to legal advice during questioning for the first time but it is qualified. There was a breach of it in this case as what he had said/didn't say had such an effect on his later trial that he should have had a lawyer present. |
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Salduz v Turkey |
He asked for a lawyer during questioning but was denied one. The court found that Turkey did not have a compelling reason to deny him a lawyer so there was a breach. |
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Ibrahim and Others v UK |
Terrorists were arrested and denied a lawyer in the first 4-8 hours of questioning, but Strasbourg said they were able to do this as they wanted to find out if there were other bombers out there and where they were. This was an exceptional case. It was also acceptable to use the information from the initial interviews at trial in order to refute the lies of the defendants. |
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(d) To call witnesses and examine prosecution witnesses |
Doorson v Netherlands - some witnesses were scared of him so gave anonymous evidence and he claimed that was a breach of 6(3)(d) – there wasn't as he knew the names of most of thewitnesses and even the ones he didn't were in court for cross-examination. |
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Van Mechelen v Netherlands |
Witnesses giving evidence and being questioned via sound link was a breach as the protection went too far due to not being able to see the witnesses and their facial expressions. |
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Al-Khawaja v Uk |
Statement of a victim who had since committed suicide and therefore couldn't be cross-examined was admitted in the trial and this was not a breach of 6(3)(d). |
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(e) To be provided with a free interpreter if you do not understand the language used in court |
Ledicke, Belkacem & Koc v Germany - non-German speakers charged and convicted in Germany with an interpreter were then ordered to pay for the interpreter but Strasbourg upheld that this is a right to free interpretation. |
