RIGHT TO A FAIR TRIALRIGHT TO A FAIR TRIAL(Article 6 of the ECHR)(Article 6 of the ECHR)

Elizabeta Ivičević KarasElizabeta Ivičević Karas

Faculty of Law, University of ZagrebFaculty of Law, University of Zagreb

Right to a fair trial (art. 6)Right to a fair trial (art. 6)

1. 1. In the determinationIn the determination of his civil rights and obligations or of his civil rights and obligations or of any criminal charge against him,of any criminal charge against him, everyone is entitled everyone is entitled to a fair and public hearingto a fair and public hearing within a reasonable time by within a reasonable time by an independent and impartial tribunal established by an independent and impartial tribunal established by lawlaw. . Judgement shall be pronounced publiclyJudgement shall be pronounced publicly but the but the press and public may be excluded from all or part of press and public may be excluded from all or part of the trial in the interests of morals, public order or the trial in the interests of morals, public order or national security in a democratic society, where the national security in a democratic society, where the interests of juveniles or the protection of the private life interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly of the parties so require, or to the extent strictly necessary in the opinion of the court in special necessary in the opinion of the court in special circumstances where publicity would prejudice the circumstances where publicity would prejudice the interests of justice. interests of justice.

Right to a fair trial (art. 6)Right to a fair trial (art. 6)

Positive obligations of the statePositive obligations of the state

legislationlegislationfinancesfinancesrespect of “reasonable time”respect of “reasonable time”

Negative obligations of the stateNegative obligations of the state

not to influence the outcome of the procedurenot to influence the outcome of the procedure

Obligations of all other state authoritiesObligations of all other state authorities

Right to a fair trial (art. 6)Right to a fair trial (art. 6)

Inspiration found in the Anglo-Saxon legal traditionInspiration found in the Anglo-Saxon legal tradition

There is no specific definitionThere is no specific definition

Undetermined legal standard – the court specifies its Undetermined legal standard – the court specifies its contentcontent

Basic principles - defined in English and American lawBasic principles - defined in English and American law

Right to a fair trial (art. 6)Right to a fair trial (art. 6)

Autonomous interpretation:Autonomous interpretation:

Universal meaning of the notionUniversal meaning of the notion

General and particular elementsGeneral and particular elements

Right to a fair trial (art. 6)Right to a fair trial (art. 6)

““Criminal charge”, Criminal charge”, Deweer v. Belgium, 1980.Deweer v. Belgium, 1980.

““Criminal”, Criminal”, Engel et al. v. Netherlands 1976Engel et al. v. Netherlands 1976::

1.1. the classification of the offence under national lawthe classification of the offence under national law

2.2. the nature of the offencethe nature of the offence

3.3. the nature and degree of severity of the sanction the nature and degree of severity of the sanction incurredincurred

Right to a fair trial (art. 6)Right to a fair trial (art. 6)

Independent and impartial tribunal established by lawIndependent and impartial tribunal established by law

Independence: Independence: lack of subordination to any other organ of lack of subordination to any other organ of the state (executive)the state (executive)

Impartiality:Impartiality: the judge is not biased in favour of either party the judge is not biased in favour of either party

the manner of appointmentthe manner of appointmentthe term of officethe term of officesafeguards from outside pressuresafeguards from outside pressurethe appearance of independencethe appearance of independence

Right to a fair trial (art. 6)Right to a fair trial (art. 6)

The right to a public hearingThe right to a public hearing

protection from “administration of justice in secret protection from “administration of justice in secret without public scrutiny”without public scrutiny”

one of the means whereby confidence in the courts one of the means whereby confidence in the courts can be maintainedcan be maintained

limitations: reasons of public order and securitylimitations: reasons of public order and security

Right to a fair trial (art. 6)Right to a fair trial (art. 6)

The right to be tried within a reasonable time, The right to be tried within a reasonable time, Deweer v. Deweer v. Belgium, 1980.Belgium, 1980.

from the official notification given to an individual by from the official notification given to an individual by the competent authority of an allegation that he has the competent authority of an allegation that he has committed a criminal offencecommitted a criminal offence

oror

if the situation of the suspect has been substantially if the situation of the suspect has been substantially affectedaffected

Right to a fair trial (art. 6)Right to a fair trial (art. 6)

The right to be tried within a reasonable time – assessment The right to be tried within a reasonable time – assessment of the period, of the period, Eckle v. Germany, 1982.Eckle v. Germany, 1982.

the conduct of the applicantthe conduct of the applicant

the importance of the proceedings for the accusedthe importance of the proceedings for the accused

the complexity of the casethe complexity of the case

the conduct of the domestic authoritiesthe conduct of the domestic authorities

Right to a fair trial (art. 6)Right to a fair trial (art. 6)

Examination of cases Examination of cases in concreto in concreto and and in globoin globo::

Evaluation of facts of the concrete case, and Evaluation of facts of the concrete case, and not of the national law, in the light of ECHRnot of the national law, in the light of ECHR

Certain violations of the right to a fair trial may Certain violations of the right to a fair trial may be compensated during the proceedings, be compensated during the proceedings, under the condition that a under the condition that a trial as a whole had trial as a whole had been fairbeen fair

Right to a fair trial (art. 6)Right to a fair trial (art. 6)

General elements of the fair trial:General elements of the fair trial:

1. 1. The right to adversarial proceedingsThe right to adversarial proceedings

2. Equality of arms2. Equality of arms

3. 3. The right to a reasoned judgmentThe right to a reasoned judgment

(4. The judgment must not be founded on unlawfully (4. The judgment must not be founded on unlawfully obtained evidence)obtained evidence)

Adversary principaleAdversary principale

The right to be heardThe right to be heard

Prosecution and defence must be given Prosecution and defence must be given the opportunity to have knowledge of and the opportunity to have knowledge of and comment on the observations filed and comment on the observations filed and evidence adduced by the other party evidence adduced by the other party (Kamasinski v. Austria, 1989)(Kamasinski v. Austria, 1989)

Principle of equality of armsPrinciple of equality of arms

The right of the party to take the same actions in The right of the party to take the same actions in the procedure that the opposite party can takethe procedure that the opposite party can take

Each party must be afforded a reasonable Each party must be afforded a reasonable opportunity to present his case – including his opportunity to present his case – including his evidence – under conditions that do not place evidence – under conditions that do not place him at a substantial disadvantage vis-a-vis his him at a substantial disadvantage vis-a-vis his opponentopponent

Principle of equality of armsPrinciple of equality of arms

Basic aspects:Basic aspects:

1. Right of the parties to access the 1. Right of the parties to access the

informationinformation - consultation of the file- consultation of the file 2. Right of the parties to participate in the 2. Right of the parties to participate in the

procedureprocedure

Dolenec v Croatia, 2009.Dolenec v Croatia, 2009.

violation of Art. 6-1 taken together with Art. 6-3violation of Art. 6-1 taken together with Art. 6-3

the applicant was not able to prepare an adequate defence the applicant was not able to prepare an adequate defence and was not afforded equality of armsand was not afforded equality of arms

the applicant (in pre-trial detention) did not have unrestricted the applicant (in pre-trial detention) did not have unrestricted access to the case file despite his repeated requestsaccess to the case file despite his repeated requests

the applicant was not been able to contact the counsel the applicant was not been able to contact the counsel assigned to him (by telephone, no answer to his request for assigned to him (by telephone, no answer to his request for his counsel’s visit to the prison)his counsel’s visit to the prison)

The right to a reasoned judgmentThe right to a reasoned judgment

Quality of the judgment / decisionQuality of the judgment / decision

Informational basis for appealInformational basis for appeal

Presumption of innocencePresumption of innocence

Art. 6-2 Art. 6-2

Everyone charged with a criminal offence Everyone charged with a criminal offence shall be presumed innocent until proved shall be presumed innocent until proved guilty according to law.guilty according to law.

Presumption of innocencePresumption of innocence

Two rules:Two rules:

Burden of proofBurden of proof

In dubio pro reoIn dubio pro reo

Right to silence / Right to silence / Privilege against self-incriminationPrivilege against self-incrimination

Nemo tenetur se ipsum accusareNemo tenetur se ipsum accusare

The defendant must not answer the The defendant must not answer the questions nor present his defencequestions nor present his defence

Right to silence / Right to silence / Privilege against self-incriminationPrivilege against self-incrimination

Derived from Art. 6-1 and 2Derived from Art. 6-1 and 2

It refers to defendant’s verbal statements and It refers to defendant’s verbal statements and not to the material that can be taken not to the material that can be taken independently of the defendant’s will independently of the defendant’s will (Saunders (Saunders v UK, 1996)v UK, 1996)

Materials gained by force and through violation Materials gained by force and through violation of Art. 3 of Art. 3 (Jalloh v. Germany, 2006)(Jalloh v. Germany, 2006)

Right to silence / Right to silence / Privilege against self-incriminationPrivilege against self-incrimination

Police informer in prison cell?Police informer in prison cell?

Defendant’s personal diary?Defendant’s personal diary?

Right to silence / Right to silence / Privilege against self-incriminationPrivilege against self-incrimination

A relative rightA relative right

Drawing of adverse inferences from the accused’s Drawing of adverse inferences from the accused’s silence is a matter to be determined in the light of all silence is a matter to be determined in the light of all the circumstances of the concrete case ( the circumstances of the concrete case ( Condron v. Condron v. UK, 2000)UK, 2000)

Drawing inferences against the defendant is not Drawing inferences against the defendant is not allowed if the defendant provides a satisfactory allowed if the defendant provides a satisfactory explanation of his silenceexplanation of his silence

Minimum defence rightsMinimum defence rights

Art. 6-3Art. 6-3 Everyone charged with a criminal offence has the following minimum Everyone charged with a criminal offence has the following minimum

rights:rights: a) to be informed promptly, in a language which he understands and in detail, a) to be informed promptly, in a language which he understands and in detail,

of the nature and cause of the accusation against him;of the nature and cause of the accusation against him; b) to have adequate time and facilities for the preparation of his defence;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 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 or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;free when the interests of justice so require;

d) to examine or have examined witnesses against him and to obtain the d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;conditions as witnesses against him;

e) to have the free assistance of an interpreter if he cannot understand or e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.speak the language used in court.

Minimum defence rightsMinimum defence rights

Compensation of procedural imbalance between:Compensation of procedural imbalance between:

State organsState organs

DefendantDefendant

Minimum defence rightsMinimum defence rights

Possible limitations:Possible limitations:

Protections of certain interests (national security, Protections of certain interests (national security, protection of vulnerable witnesses or undercover police protection of vulnerable witnesses or undercover police agents, protection of fundamental rights of another agents, protection of fundamental rights of another person, or protection of public interest)person, or protection of public interest)

Only if the limitation is absolutely necessary (restrictive Only if the limitation is absolutely necessary (restrictive interpretation)interpretation)

Adequate compensation of consequences suffered by Adequate compensation of consequences suffered by the defencethe defence

Minimum defence rightsMinimum defence rights

Everyone charged with a criminal offence has the right to Everyone charged with a criminal offence has the right to be informed promptly, in a language which he be informed promptly, in a language which he understands and in detail, of the nature and cause of understands and in detail, of the nature and cause of the accusation against him.the accusation against him.

Information regarding the facts and legal Information regarding the facts and legal definition/qualificationdefinition/qualification

Information regarding evidenceInformation regarding evidence

Promptly?Promptly?

Minimum defence rightsMinimum defence rights

Everyone charged with a criminal offence Everyone charged with a criminal offence has the has the rightright to have adequate time and to have adequate time and facilities for the preparation of his facilities for the preparation of his defencedefence

Adequate time?Adequate time?

Adequate facilities? (legal assistance)Adequate facilities? (legal assistance)

Minimum defence rightsMinimum defence rights

Everyone charged with a criminal offence has the right to Everyone charged with a criminal offence has the right to defend himself in person or through legal assistance of defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the pay for legal assistance, to be given it free when the interests of justice so require.interests of justice so require.

The right to defend oneselfThe right to defend oneselfThe right to the assistance of counsel of one’s own The right to the assistance of counsel of one’s own choosingchoosingThe right to legal aidThe right to legal aidThe right to contact the counselThe right to contact the counsel

Hanževački v Croatia, 2009.Hanževački v Croatia, 2009.

Violation of Art. 6-1 taken together with Art. 6-3-c)Violation of Art. 6-1 taken together with Art. 6-3-c)

The concluding hearing was held in absence of the applicant’s The concluding hearing was held in absence of the applicant’s counsel, although he asked by telephone that the hearing be counsel, although he asked by telephone that the hearing be adjourned on account of his sudden illnessadjourned on account of his sudden illnessAlthough the applicant informed the court that he did not wish to Although the applicant informed the court that he did not wish to defend himself in the absence of his counsel, the presiding judge defend himself in the absence of his counsel, the presiding judge decided to hold a hearingdecided to hold a hearingThe judgement was pronouncedThe judgement was pronounced

ECtHR: “one of the most important aspects of a concluding hearing in 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 criminal trials was an opportunity for the defence, as well as for the prosecution, to present their closing arguments”.prosecution, to present their closing arguments”.

Prežec v Croatia, 2009.Prežec v Croatia, 2009.

Violation of Art. 6-1 taken together with Art. 6-3-c)Violation of Art. 6-1 taken together with Art. 6-3-c)

the applicant wasn’t granted free legal the applicant wasn’t granted free legal assistance at the trial stageassistance at the trial stage

the lathe lawywyer assigned to him on appeal had not er assigned to him on appeal had not contacted himcontacted him

Minimum defence rightsMinimum defence rights

Everyone charged with a criminal offence Everyone charged with a criminal offence has the has the right right to examine or have to examine or have examined witnesses against him and to examined witnesses against him and to obtain the attendance and examination obtain the attendance and examination of witnesses on his behalf under the of witnesses on his behalf under the same conditions as witnesses against same conditions as witnesses against himhim..

The right to test witness evidenceThe right to test witness evidence

Kovač v Croatia, 2007.Kovač v Croatia, 2007.

violation of minimum defence right art. 6-3-d):violation of minimum defence right art. 6-3-d): Right to examine the prosecution witnessRight to examine the prosecution witness

The defendant didn’t have, at any stage of the procedure, an The defendant didn’t have, at any stage of the procedure, an opportunity to examine a witness, whose testimony was the only opportunity to examine a witness, whose testimony was the only evidence of the defendant’s guilt and the ground for his conviction evidence of the defendant’s guilt and the ground for his conviction At the trial stage, the court briefly examined the witness, in absence At the trial stage, the court briefly examined the witness, in absence of the defendantof the defendantSince the defendant hasn’t been summoned according to the law to Since the defendant hasn’t been summoned according to the law to a hearing before the investigating judge, the defendant didn’t have a hearing before the investigating judge, the defendant didn’t have an opportunity to evaluate the witness testimony logically and an opportunity to evaluate the witness testimony logically and psychologicallypsychologically

Minimum defence rightsMinimum defence rights

Everyone charged with a criminal offence Everyone charged with a criminal offence has the has the rightright to have the free assistance to have the free assistance of an interpreter if he cannot understand of an interpreter if he cannot understand or speak the language used in court.or speak the language used in court.

The right to free assistance of interpreterThe right to free assistance of interpreter

RIGHT TO A FAIR TRIALRIGHT TO A FAIR TRIAL(Article 6 of the ECHR)(Article 6 of the ECHR)

Elizabeta Ivičević KarasElizabeta Ivičević Karas

Faculty of Law, University of ZagrebFaculty of Law, University of Zagreb