right of the defence and assistance of the accused (article 6 § 3 echr) era seminar: recent...

Right of the defence and assistance of the accused (Article 6 § 3 ECHR)

ERA seminar: Recent Case-law of the ECtHR in criminal mattersStrasbourg, 25/26 November 2015

Alex TinsleyHead of EU Office, Fair Trials

Coordinator, Legal Experts Advisory [email protected]

mailto:[email protected]

Objectives

• Briefing on the case yesterday (Ibrahim and Others v United Kingdom)

• Focus on recent ECtHR cases with an EU law nexus in criminal matters

• Focus on a couple of current disputed issues in the ECtHR case-law

Structure

• Review the general approach to Article 6(3) provisions (pre-trial focus)

• Look at Article 6(3)(a), (b), (c), [(d)] and (e) (and linked EU law provisions)

• For each point

• Issues raised by lawyers

• Answers in existing ECHR / EU law

• Points which still need clarification

• A quick look at how these issues may be litigated as EU law points

Core texts – ECHR Article 6(3)

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.

Core texts – EU ‘Roadmap’ Directives

• Roadmap for strengthening procedural rights, 2009

• Article 82(2)(b) TFEU (rights of individuals in criminal proceedings)

• So far:

• Directive 2010/64/EU on interpretation & translation

• Directive 2012/13/EU on the right to information

• Directive 2013/48/EU on the right of access to a lawyer

• Directive 2016/--/EU strengthening the presumption of innocence

• Key points

• EU law and ECHR interact: see Case C-465/07 Elgafaji (CJEU) / Sufi & Elmi v. UK regarding non-refoulement obligations: upward spiral

• Recent case-law (A.T. v Lux) shows potential for interaction here

• Ibrahim and Others v. UK (hearing yesterday) may be next example

General approach to Article 6(3) provisions

• Article 6(3) = aspects of the fairness of proceedings as a whole:

The Court’s primary concern under [Article 6(1)] is to evaluate the overall fairness of the criminal proceedings (…) The guarantees in [Article 6(3)] are specific aspects of the right to a fair hearing set forth in Article 6 § 1 which must be taken into account in that evaluation (Imbrioscia v. Switzerland).

Compliance with the requirements of fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of the isolated consideration of one particular aspect or one particular incident (Pishchalnikov v. Russia).


• Article 6(3) relevance at the pre-trial stage

Certainly the primary purpose of Article 6 (art. 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 6 has no application to pre-trial proceedings (…) [The] requirements of [Article 6(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 (Imbrioscia v. Switzerland).

• Key example: breach of right of access to a lawyer in early questioning, leading to a confession which is used for the conviction (see later).


• Article 6(3) pre-trial violations can be remedied

• In principle, pre-trial issue can only be litigated at ECtHR once the whole proceedings are over, when the impact on overall fairness can be assessed

• Cases brought before trial on Article 6(3) grounds routinely dismissed on the basis that remedies are still available in the procedure (premature).

• But see Casse v. Luxembourg (2006) – violation of Article 6(3)(a) at the pre-trial stage in isolation.

• See also Candio Gonzalez Martin v. Spain (pending) – alleged violation of Article 6(3)(a) at the pre-trial stage (will come back to this)

• EU Directives, by contrast, apply throughout the proceedings, and can be invoked at that stage. This is not the same as ‘overall fairness’ ex post

Article 6(3) – when it begins to apply

• Article 6(3) applies for everyone “charged” with a criminal offence

• Key issue: X is questioned as a “witness” when he is in fact “suspected”

• The classic definition of “charged”:

That concept has to be understood within the [autonomous] meaning of the Convention and not solely within its meaning in domestic law. It may thus be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the [suspect] has been substantially affected” (Mikolajova v. Slovakia, 2011)

Article 6(3) – when it begins to apply

• Article 6(3) applies for everyone “charged” with a criminal offence

• Key issue: X is questioned as a “witness” when he is in fact “suspected”

• Recent move towards objective evidence-based test:

The Court considers a person to acquire the status of a suspect calling for the application of the Article 6 safeguards not when it is formally assigned to him or her, but when the domestic authorities have plausible reasons for suspecting that person’s involvement in a criminal offence (Bandaletov v. Ukraine, 2013; derived from Brusco v. France, 2010)

• Examples of this:

• Violation due to questioning at roadside stop (not formally as a suspect), when there was evidence against the person , and the statement being used at trial (Zaichenko v. Russia, 2010)

• No violation when the person voluntarily made a confession, before authorities had reason to suspect them (Bandaletov v. Ukraine, 2013)

Article 6(3) – specific paragraphs: (c)

• The (now) central principle in Salduz v. Turkey

[T]he Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (…) At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings (…) this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself.

• To say it another way: initial questioning is key, as suspect may make statements against himself , so he needs the assistance of a lawyer.


• The (now) central principle in Salduz v. Turkey

[Article 6(1)] requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 (…) The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

• Earlier, simple examples

• Salduz v. Turkey, 2008 itself: confession used as basis for conviction

• Shabelnik v. Ukraine, 2009: confession used as basis for conviction


• Some open / developing questions

[Article 6(1)] requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 (…) The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

• What does ‘as from the first interrogation by the police’ mean

• Navone v. Monaco, 2010: assistance during questioning

• April 2014 decision of NL Supreme Court disagreed



[Article 6(1)] requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police (…)

• Real and effective assistance by a lawyer

[A]n accused [must] be able to obtain the whole range of services specifically associated with legal assistance (…) counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention (Dayanan v. Turkey, 2009).

• Sapan v. Turkey, 2011 – suggested lawyer must have access to the police case file in order to provide effective assistance. Paris Bar relies on this a lot.

• A.T. v. Luxembourg, 2015 – disagreed with Sapan v. Turkey, and found that it is legitimate to restrict access to the file at this stage – big discussion



[Article 6(1)] requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police (…)

• Real and effective assistance by a lawyer

• A.T. v. Luxembourg, 2015

• No private consultation with the lawyer prior to judicial interrogation

• Our intervention: you can and should rely on the EU Directive:

The right of access to a lawyer shall entail the following: (a) Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them (…).

• ECtHR found that requirement implicit in Article 6(3)(c)

• First example of interaction betwen ECHR / EU law in this area



The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (Salduz v. Turkey).

• What are incriminating statements?

• Outright confessions, clearly

• Saunders v. UK: other statements deployed later to impinge credibility

• A.T. v Lux: denials of the offences different from later denials



The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (Salduz v. Turkey).

• When are statements ‘used for a conviction’?

• Still uncertainty as to whether statement can be used at all

• Dvorski v. Croatia (Chamber, 2013) – allowed reliance on statement, amid a complex body of evidence.

• Dvorski v. Croatia (Grand Chamber, 2015) – overturned this, but without clearly deciding the issue (see the individual opinions)

• Khayrov v. Ukraine, 2012 – statement ‘had a bearing’ on conviction

• Martin v. Estonia, 2013 – statement excluded, but the effect of the early denial of access to a lawyer was not ‘completely undone’: strict

• Important: it is about national courts’ freedom to assess evidence


• Yesterday’s case: Ibrahim and Others v. UK

[Article 6(1)] requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 (…) The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (Salduz).

• Chamber judgment in Ibrahim is the first time ‘compelling reasons’ have been found to be established since the Salduz principle was established

• These were said (following English courts) to be ‘convincingly established’

• National courts used statements for the convictions (with safeguards)

• Chamber found that this meant Article 6 not infringed overall


• Our intervention in this case said:

• Case-law has moved on, right to a lawyer has become fundamental

• Derogations OK, but the evidence cannot be used for the criminal case

• The two options before the Court are:

• Even where compelling reasons established, any use of the evidence for a conviction will irretrievably prejudice the rights of the defence – ‘in principle’ means the rule is a ‘bright line’

OR

• Where compelling reasons to restrict access to a lawyer are established, may be possible to use the statement provided there are other safeguards – ‘in principle’ means there is an exception

• The ruling will affect the interpretation of Article 12 of the EU Directive

• ECtHR knows Court of Justice of the EU will be interpreting the Directive…


• The ‘waiver’ issue

• This is cited by lawyers as basically the number one problem in this area

Neither the letter nor the spirit of Article 6 prevents a person from waiving of his own free will, either expressly or tacitly, entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, a waiver of the right must be established in an unequivocal manner and be attended by minimum safeguards (…) A waiver of the right, once invoked, must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (e.g. Saman v. Turkey, 2011)

• The waiver therefore depends upon the information given to the suspect

• Failure to give information effectively may lead to violations of Article 6



• Circumstances which have led to waiver being seen as ineffective:

• Notification of rights in another language (Saman v. Turkey, 2011)

• Notification by a mere oral caution (Panovits v. Cyprus, 2009)

• The stress of the situation (Zaichenko v. Russia, 2010)

• The suspect’s low level of literacy (Kaciu & Kotori v. Albania, 2013)

• EU Directive 2012/13/EU

• Requires a ‘Letter of Rights’ for arrested persons (Article 4)

• Drafted in ‘clear and accessible’ language to ensure rights understood

• The suspect must have an opportunity to read it (Article 4)



• An interesting recent case: Zachar and Cierny v. Slovakia, 2015

• Suspects arrested on lower level drugs offences (possession)

• Notified orally of rights prior to questioning

• Choice to ‘waive’ lawyer recorded by way of ticked box on a form

• Suspects made self-incriminatory statements

• Offences later reclassified as serious supplying offences, which would have required mandatory representation if charged initially

• We intervened, to say

• Look at the emphasis in the EU Directive on information given

• ECtHR should have regard to accuracy and detail of the accusation given, including legal classification, and the way rights were notified



• Judgment in Cierny v. Slovakia, 2015

• Interesting review of access to lawyer principles, paragraph 59

[T]he Court observes that any instructions as regards the applicants’ procedural rights were given to them via the first pages of the pre-printed forms on which their pre-trial statements had been transcribed. Such instructions went as far as informing the applicants, without providing any commentary or further explanation, that they had the right to remain silent and the right to choose a lawyer. Conversely, there has been no allegation or other indication that any individualised advice about their situation and rights was provided to the applicants (paragraph 70).

• Implicit requirement for separate notification of rights (not ex post)

• Seems to suggest advice may be needed to make waiver effective

• Arguably, ECtHR is importing EU Directive requirements into its case-law



• Judgment in Cierny v. Slovakia, 2015

[T]he Court is of the view that there must have been a distinct possibility at the relevant time that the offence might be reclassified to a particularly serious one. However, there is no indication that any such distinction, or the attendant risk of a significantly heavier penalty, was explained to the applicants (paragraphs 72-73)

• So: misleading notification of accusations leads to ineffective waiver

• Useful to check the level of detail / classification provided initially

• (Slovakia has since implemented Directive 2012/13/EU)



• Another interesting case: Stojkovic v. France & Belgium

• Questioned in Belgium, on request of France

• Notification regarding procedural rights in France

• Waiver (of rights in France) was not unequivocal

• This is a useful case for criminal lawyers doing cross-border work

• Cross-border questioning could be more frequent from 2017 when the European Investigation Order Directive is implemented

Article 6(3) – specific paragraphs: (e)

• Interpretation in initial questioning

• Practitioners’ concern: quality of interpretation at the police station

• Unqualified interpreters

• Questionable independence

• No recording in place to check what was actually said

• Difficult for courts to assess whether statements are reliable

• May have an impact upon suspects’ right of self-incrimination



• Notable case: Diallo v. Sweden (admissibility decision, 2010)

The Court notes that the investigation stage has crucial importance for the preparation of the criminal proceedings (…) in order to (…) avoid incriminating statements made during police interrogation without access to a lawyer being used for a conviction, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police (…) In the same line of reasoning, the assistance of an interpreter should be provided during the investigating stage unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right (paragraphs 24-25).

• Establishing a ‘police station right’ in the image of access to a lawyer

• This principle has become part ofthe case law (e.g. Baytar v. Turkey, 2015)



• Interesting point about courts’ review of police station interpreting

[T]he obligation of the competent authorities is not limited to the appointment of an interpreter but, if they are put on notice in the particular circumstances, may also extend to a degree of subsequent control over the adequacy of the interpretation provided (e.g. Kamasinski v. Austria).

• How was this applied in Diallo v. Sweden?

The Court also finds that the Appeal Court did exercise a sufficient degree of control of the adequacy of AS’s interpretation skills (paragraph 29).

• Court is referring to the fact that Appeal Court checked whether it was safe to rely upon the incriminatory statements in the questioning – i.e. retroactive control by the court over quality of early interpretation

• It was possible here because checks were also done at the questioning stage (control questions etc.) – without these, may be difficult for court



• Third-language issue

• Baytar v. Turkey, 2014

• Kurdish speaker with insufficient Turkish

• Waiver of rights ineffective; statements not reliable

• Vizgirda v. Slovenia, pending

• Lithuanian citizen with some Russian ability

• Interpretation provided in Russian throughout

• We intervened to say this is exactly like Baytar v. Turkey

• EU Directive adds very little on any of these points

Article 6(3) – specific paragraphs: (a) and (b)

• Access to the case file at the pre-trial phase

• Common problem

• Exceptional powers available to restrict access to the case file

• Used routinely, so access is restricted in much of pre-trial phase

• How does the case-law help?

• When a person is detained, Article 5(4) applies – which means that documents which are essential to challenging detention effectively must be made available to suspects / their lawyers (e.g. Schöps v. Germany)

• Article 6(3) position is less helpful, when a person is not detained



• Article 6(3) principles

[T]he Court acknowledges the need for criminal investigations to be conducted efficiently, which may imply that part of the information collected during them is to be kept secret in order to prevent suspects from tampering with evidence and undermining the course of justice (e.g. Garcia Alva v. Germany among others)

Nevertheless, that legitimate goal cannot be pursued at the expense of substantial restrictions on the rights of the defence (e.g. Dochnal v. Poland)

• Difficult to establish such a restriction if the person is not detained

• Gul v. Germany (admissibility, 2012) (challenge to arrest warrant)

• Cases often dismissed as inadmssible: file will be opened later



• Ongoing discussion under Article 6(3)?


Article 6 cannot be interpreted as providing unrestricted access to the case file as from prior to the first judicial interrogation, where national authorities have reasons relating to the protection of the interests of justice which are sufficient to seek to avoid jeopardising the effectiveness of the investigation (paragraph 81 – badly drafted)

• Candido Gonzalez Martin v. Spain, pending

• Prolonged (years) restriction on access to the case file

• Challenged on the basis that it interferes with the right for the defence to know what is going on in the investigation, and to participate effectively in the pre-trial phase

• Pending an awfully long time – not sure what Court is doing



• Ongoing discussion under Article 6(3)?


Article 6 cannot be interpreted as providing unrestricted access to the case file as from prior to the first judicial interrogation, where national authorities have reasons relating to the protection of the interests of justice which are sufficient to seek to avoid jeopardising the effectiveness of the investigation (paragraph 81 – badly drafted)

• Candido Gonzalez Martin v. Spain, pending

• Prolonged (years) restriction on access to the case file

• Challenged on the basis that it interferes with the right for the defence to know what is going on in the investigation, and to participate effectively in the pre-trial phase

• Article 7 of the EU Directive is more promising – leads to a general point

How ECHR points are litigated under EU law


• Article 7 of the EU Directive (2012/13/EU)

• Article 7(1) – reiterates Article 5(4) ECHR standard

• Article 7(2) and (3) – right of access to the whole file, ‘at the latest’ when the merits of the case are submitted to the judgment of a court

• Article 7(4) – provides grounds for restricting access. These must be taken by a judicial authority of subject to judicial review

• Scope of Directive (Article 2) – applies as from the beginning of proceedings

• Therefore: suspect has a right which can be invoked in the pre-trial phase

• By contrast, Article 6(3) pre-trial points litigated later, through telescope

• Involvement of the regional court (CJEU) comes during national phase

Thanks

[email protected]

mailto:[email protected]

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