Last Updated on April 21, 2019 by LawEuro
Overview of the Case-law of the ECHR 2016
Right to a fair hearing in criminal proceedings (Article 6 § 1)
Access to a court
The case of Marc Brauer v. Germany[104] concerned the refusal to consider an appeal against an order placing the applicant in a psychiatric hospital, on account of a failure to comply with the one-week deadline prescribed by law.
The applicant’s confinement in a psychiatric hospital had been ordered at first instance on the grounds that he could not be held criminally responsible for the offences with which he was charged and that he was mentally ill. While the judgment was being delivered, the applicant became very agitated. He stated that he wished to change his lawyer and to appeal against the decision himself. The presiding judge gave him express instructions on when and how to lodge an appeal. A few days later, the applicant’s lawyer sent him written instructions on the procedure to be followed. The applicant drew up and signed a notice of appeal. The court dismissed the appeal as out of time and reiterated the oral instructions given by the presiding judge. The applicant challenged that rejection, indicating that he had misunderstood the instructions with regard to the appeal procedure. He was unsuccessful. The Federal Court of Justice placed decisive weight on the instructions given by the judge. It found no evidence that the applicant had not understood them on account of his mental illness. He was therefore responsible for the situation in question.
In the Convention proceedings, the applicant argued that he had not understood the instructions given by the judge on account of his mental state, and that he had been misled by the lawyer’s instructions.
The Court held that there had been a violation of Article 6 § 1 of the Convention for the following reasons.
(i) The applicant, who had been deprived of his liberty and was confined in a psychiatric hospital on account of his mental health, had been particularly vulnerable.
(ii) In spite of this, his lawyer had taken no steps to verify whether he was indeed capable of lodging an appeal alone, his intention of doing which he had clearly stated.
(iii) The written instructions from the lawyer were potentially misleading, so that a lay person could have understood them in the same way as the applicant.
(iv) The applicant had been diligent in sending off the notice of appeal, which was posted five days prior to the expiry of the statutory time-limit; the subsequent delay was attributable to the postal service (whose resources were strained over the Christmas period) and to the courts.
This judgment is interesting with regard both to the specific situation of litigants or defendants suffering from psychiatric problems and, more generally, to the practical circumstances that are likely to delay the registration of an appeal by any person involved in court proceedings.
As a general rule, legal certainty and the proper administration of justice required compliance with procedural time-limits. Nonetheless, it was necessary to envisage exceptional cases and be flexible in order to ensure that the right of access to a court was not unduly restricted. It was for the national courts to assess the situation as a whole and to take into account the exceptional factors that had affected the lodging of the appeal in due form. There could be an accumulation of adverse factors which, in practice, explained the delay and consequently the degree of negligence attributable to the appellant.
Fairness of the proceedings
In its judgment in Lhermitte v. Belgium[105] the Grand Chamber developed the principles established in Taxquet v. Belgium[106] concerning the reasons given by an assize-court jury for convicting a defendant.
While experts had initially considered the applicant to be criminally responsible for her acts (she had killed her five children), new evidence came to light at the trial which led the experts to unanimously conclude that she was not criminally responsible. The assize-court jury (twelve lay members) concluded to the contrary, finding – through “yes” or “no” responses to three of the five short questions put to it – that she was criminally responsible and guilty.
She complained under Article 6 that she could not understand the reasons why the jury had so decided. The Grand Chamber found that there had been no violation of Article 6 of that provision.
The Grand Chamber applied the Taxquet principles (as summarised in Agnelet v. France[107]) to the particular facts of the case. The judgment is noteworthy in that the Grand Chamber accepted that the reasons for the jury’s decision can be gleaned from sources other than the jury itself and, in this case, from the later sentencing decision of the assize court and the judgment of the Court of Cassation.
Since the applicant did not deny that she had carried out the killings, the main issue at the trial was whether she was criminally responsible and this was the very point on which the jury had, without giving reasons, not followed the unanimous view of the experts. The issue to be determined, following Taxquet, was whether the applicant had, nevertheless, been able to understand the reasons why the jury had concluded as it did. Noting that compliance with Article 6 was to be established on the basis of the trial as a whole, the Grand Chamber considered that certain factors should have dispelled the applicant’s doubts as to the jury’s belief of her criminal responsibility. Her criminal responsibility was the central focus of the investigation and trial. Certain relevant reasons were contained in the sentencing judgment, which had been adopted by twelve members of the jury with three professional judges the following day: while those sentencing judges were not part of the jury, they had been able to obtain the observations of the jury members who sat with them while deliberating on the sentence and who signed the sentencing judgment, and the three professional judges had been present throughout the trial. The experts themselves had acknowledged that their view was an “informed opinion” and not a “scientific truth”. In such circumstances, the Court concluded that the fact that the jury had not indicated the reasons which prompted them to adopt a view on criminal responsibility contrary to the unanimous expert opinions on the subject had not been capable of preventing the applicant from understanding the decision of the jury against her.
It is worth comparing and contrasting a series of judgments in similar cases against France adopted since Taxquet (including Agnelet, cited above; Oulahcene v. France[108]; and Fraumens v. France[109]) in which the Court, in finding a violation as the applicants could not have understood the reasons for the jury decisions against them, took note of later legislative reform (after the relevant facts of those cases) introducing a “statement of reasons” form for assize-court juries. The later Matis v. France[110] decision indicated that this “statement of reasons” form was capable of meeting the requirements of Article 6 of the Convention.
Presumption of innocence (Article 6 § 2)
The judgment in Rywin v. Poland[111] concerned the impact of a parliamentary commission of inquiry on the conduct of parallel criminal proceedings relating to the same matters.
The applicant, a film director, became embroiled in a scandal arising out of allegations that persons in power had engaged in corrupt practices during parliamentary proceedings on the reform of Poland’s audio-visual legislation. Criminal charges were brought against the applicant in this connection. At the same time, Parliament set up a commission of inquiry tasked with investigating the accuracy of the allegations made against several politicians and senior officials. The applicant was convicted in the criminal proceedings. While his appeal was pending, the commission of inquiry, whose proceedings were conducted in public, published its findings. The report identified by name certain key figures who had sought to exploit their position of influence for financial and political gain. The applicant was cited in the report as someone who had assisted their corrupt endeavour. His appeal was dismissed and his conviction became final.
In the Convention proceedings, the applicant complained among other things that the publication of the parliamentary commission’s report at a time when his conviction was not yet final had infringed his right to be presumed innocent guaranteed by Article 6 § 2. The Court found that that provision had not been breached.
The judgment is noteworthy in that this was the first time the Court had had to address the implications for the presumption of innocence of the parallel conduct of an official inquiry and criminal proceedings dealing with the same background facts and circumstances. In previous judgments, the Court had laid down the relevant principles governing the making of statements by public officials which may be seen as a premature expression of a defendant’s guilt (see, for example, Daktaras v. Lithuania[112]; Butkevičius v. Lithuania[113]; and Gutsanovi v. Bulgaria[114]). In the applicant’s case the Court found that parliamentary commissions of inquiry were also required to respect the guarantee contained in Article 6 § 2 as regards the wording of their terms of reference, the discharge of their mandate and their published conclusions. It is interesting to note that the Court did not at any stage take issue with the decision to allow a parliamentary investigation to run in parallel with a criminal trial dealing with a related matter.
The Court had regard in the applicant’s case to the public-interest considerations which had led to the creation of the commission of inquiry and the need for it to ensure transparency for its work and findings. Its role was distinct from that of the criminal court, which had to determine the applicant’s guilt or innocence. The applicant’s criminal liability was not a matter for the commission of inquiry. As in many cases raising issues under Article 6 § 2, much depended on the Court’s view of the impugned expressions. In the applicant’s case, it found that even though the final report referred to the applicant by name in connection with the corrupt conduct of senior officials he had not been directly targeted by the authors who, moreover, had not adverted in their report to the criminal proceedings pending against the applicant or offered any view on his possible criminal liability for aiding and abetting corruption.
Defence rights (Article 6 § 3)
The case of Blokhin[115], cited above, concerned the placement of the applicant, a minor who had not reached the age of criminal responsibility, in a juvenile detention centre.
The applicant, who was twelve years of age at the material time, was arrested and taken to a police station on suspicion of having extorted money from another minor. On the strength of the applicant’s confession (which he later contested) and the statements of the alleged victim and the latter’s mother, the authorities found that he had committed offences punishable under the Criminal Code. However, no criminal proceedings were initiated since he was below the statutory age of criminal responsibility. He was brought before a court, which ordered his placement in a temporary detention centre for minor offenders for a period of thirty days in order to “correct his behaviour” and to prevent his committing any further acts of delinquency.
The Grand Chamber found, inter alia, a violation of Articles 6 §§ 1 and 3 (on the ground that the applicant had been entitled to, but did not benefit from, the procedural guarantees of Article 6 of the Convention).
The judgment is noteworthy because it comprehensively addresses, and in some respects develops, the procedural rights of detained juveniles (under the age of criminal responsibility). It also lists relevant international and regional juvenile justice standards on which, in certain respects, the judgment directly relied.[116]
It is interesting to note that the Grand Chamber, like the Chamber, applied the procedural guarantees of Article 6 to the proceedings which led to the applicant’s detention. The Grand Chamber adopted the reasoning of the Chamber and, stressing the need to look beyond appearances and at the realities of the situation, found that the “more far-reaching procedural guarantees” of Article 6 should have applied to those proceedings: even though no criminal proceedings had been initiated against the applicant, the nature of the offence, together with the nature and severity of the penalty, were such as to engage the applicability of the criminal limb of that provision. The Court rejected the Government’s contention that these procedural complaints should be examined under Article 5 § 4 (see, in this connection, Bouamar, cited above[117]).
The Grand Chamber went on to find, on the merits, that there had been a violation of Article 6 on account of the absence of legal assistance during the applicant’s interview with the police and the denial of an opportunity during the special procedure before the judge making the detention order to cross-examine the decisive witnesses against him. Paragraphs 196 and 218 of the judgment elaborate on the Court’s reasoning in this respect, addressing as they do the notion of “status crimes”. In particular, the Court explained that a child should not be deprived of procedural guarantees simply because the process that might result in his or her detention is deemed to be protective: rather those guarantees should be triggered by the acts a child is alleged to have committed and not by the child’s status as a juvenile delinquent.
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The judgment in Yaroslav Belousov[118], cited above, concerned the confinement of the applicant in a glass cabin during the court hearings in his case. During the first two months of the hearings, the applicant, who had been charged with public-order offences, and nine other accused were confined in a very cramped glass cabin. In the ensuing three-month period, the hearings were held in a different courtroom equipped with two glass cabins allowing the applicant and the other accused more space.
In the Convention proceedings the applicant complained, among other things, that his confinement as described amounted to degrading treatment and had impaired his effective participation in the trial, including contact with his counsel. He relied on Articles 3 and 6 of the Convention. The judgment is noteworthy in that this is the first time that the Court has had to address this particular form of security arrangement in a courtroom for compliance with Article 6.
The Court reviewed the extent to which the above-described security arrangements infringed Article 6 fairness guarantees. Significantly, and as regards the proceedings during the first two months of the trial, it found that a breach of Article 6 flowed almost inevitably from the conclusion that the applicant’s confinement in the cramped and overcrowded glass cabin amounted to degrading treatment, it being difficult to reconcile the degrading treatment of the applicant during the judicial proceedings with the notion of a fair hearing. Concerning the second period of confinement, which was found to be Article 3 compliant, the Court’s inquiry was focused on whether the placement of the applicant in a glass cabin was a necessary and proportionate restriction on his right to a fair hearing, having regard to the security risks relied on by way of justification for the application of the measure. The Court found in favour of the applicant.
Referring in particular to its case-law on the importance of an accused’s right to communicate with his lawyer without the risk of being overheard by a third party (see Svinarenko and Slyadnev[119], cited above, and Sakhnovskiy v. Russia[120], with further references), it noted that the glass cabin constituted a physical barrier between him (and the other accused) and the rest of the courtroom, which to some extent reduced his direct involvement in the hearing. This arrangement also made it impossible for the applicant to have confidential exchanges with his legal counsel, to whom he could only speak through a microphone and in close proximity to the police guards. It was also of relevance that the cabin was not equipped to enable the applicant to handle documents or take notes. Moreover, the Court found that the use of the glass cabin was not warranted by any specific security risks or by a need to maintain order in the courtroom, but was deployed as a matter of routine. The Court noted that the trial court had no discretion to order that the applicant and the other defendants be placed outside the cabin, did not seem to appreciate the impact of the arrangements on the applicant’s defence rights, and did not take any measures to compensate for the limitations. It concluded that there had been a breach of Article 6 §§ 1 and 3 (b) and (c).
The Court’s judgment is a further illustration of its concern to ensure that the need to take account of security considerations surrounding a trial, which it acknowledged to be a legitimate reason for restricting the rights of the defence, are warranted in the circumstances of a particular case and, where justified, are applied in a proportionate manner (for a recent example, but not involving the use of a glass cabin, see Simon Price v. the United Kingdom[121]).
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The Constantinides v. Greece[122] judgment concerned the admission and use of the incriminating conclusions of an absent expert.
The applicant was convicted of fraud on the strength of, among other factors, the evidence of a handwriting expert commissioned by the prosecutor at the charge stage. The expert, although summoned, failed to appear and testify at the trial. No explanation was given for his absence. The expert’s report had been included in the file and was read out during the trial. The applicant’s own expert attended the trial and provided written and oral evidence contradicting the findings of the prosecution’s expert.
In the Convention proceedings the applicant submitted that there had been a breach of Article 6 §§ 1 and 3 of the Convention, since he had been convicted solely or to a decisive extent on the evidence of an absent witness.
The Court found that the applicant’s right to a fair trial had not been breached as alleged. The judgment is noteworthy in that the Court applied the principles concerning the use of evidence of absent witnesses as set out in the Grand Chamber’s judgment in Schatschaschwili v. Germany[123] to the circumstances of the applicant’s case. These principles were recently summarised in Seton v. the United Kingdom[124]. For the Court, they apply, mutatis mutandis, to the admission and use of evidence given by an expert whom the accused has not had the opportunity to cross-examine. On the facts of the applicant’s case, the Court observed as follows.
(i) The domestic courts had not made all reasonable efforts to secure the attendance of the expert;
(ii) Although the expert report was considered by the domestic courts to be of significant evidential value, it was not the sole or decisive basis for the applicant’s conviction; it served in effect to corroborate witness and documentary evidence adduced at the trial as proof of the applicant’s guilt;
(iii) There were sufficient safeguards in place to compensate for the applicant’s inability to question the expert directly, in particular the active participation at the trial of the applicant’s own expert witness.
It is of interest that the Court found that it was relevant for the purposes of its assessment that the report of the absent expert did not concern matters which the latter had seen or heard about in relation to the charges against the applicant. The report was technical in nature and its author was an independent expert who had been commissioned by the judicial authorities at the investigation stage to help clarify certain issues in the file. The applicant’s own expert had had every opportunity at the trial to cast doubt on the findings.
Defence through legal assistance (Article 6 § 3 (c))
The Ibrahim and Others v. the United Kingdom[125] concerned delays in access to a lawyer during police questioning.
The applicants were suspected of attempted suicide bombings in London on 21 July 2005, two weeks after fifty-two people had been killed also in suicide bombings in London.
The first three applicants were arrested and temporarily refused legal assistance during police “safety interviews”. Their statements, denying any involvement in the events, were made without legal assistance and were admitted at their trials (at trial, they acknowledged involvement but claimed that the bombs had been a hoax since they were never intended to explode). The fourth applicant was interviewed as a witness. Unlike the other applicants, he started to incriminate himself. Rather than arrest him at that point as a suspect and advise him of his right to silence and to legal assistance, the police allowed him to continue to answer their questions as a witness and make a written statement. He adopted the statement after receiving legal advice but argued at trial that it should not be admitted since it had been made without legal advice.
The applicants complained under Article 6 §§ 1 and 3 (c) of their lack of access to lawyers during police questioning and the admission at trial of their statements. The Grand Chamber found that there had been no violation as regards the first three applicants and a violation of the Convention as regards the fourth applicant.
The Grand Chamber judgment is noteworthy in that it clarifies the two stages of the Salduz v. Turkey[126] test and the relationship between them. It described those two stages as follows: the Court must assess, in the first place, whether there were “compelling reasons” to restrict the right of access to a lawyer and, secondly, the impact of that restriction on the overall fairness of the proceedings.
(i) As to the meaning and import of “compelling reasons”, the Grand Chamber emphasised the “stringent” nature of this criterion so that restrictions on access to legal advice “[were] permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case”. It was relevant that the restriction had a basis in law which sufficiently circumscribed the scope and content of any restriction so as to guide operational decision-making. The compelling nature of the reasons had to be assessed on a case-by-case basis on the basis of these principles.
(ii) As to the relationship between “compelling reasons” and fairness, the Grand Chamber confirmed, relying on Salduz, cited above, and Dvorski v. Croatia[127], that there was no bright-line rule to the effect that the absence of compelling reasons was sufficient of itself to find a violation. Where there were compelling reasons for the restriction, a holistic assessment of the entirety of the proceedings had to be conducted to determine fairness. Where there were no compelling reasons, the Court had to apply “a very strict scrutiny” to its fairness assessment: a lack of compelling reasons weighed heavily in the balance when assessing overall fairness and might tip the balance in favour of a violation (the Grand Chamber referenced a similar approach in Schatschaschwili[128], cited above, as regards the absence of good reason for the non-attendance of a witness at a trial). In the absence of compelling reasons, a presumption of unfairness arose and the onus was on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial had not been irretrievably prejudiced by the restriction.
(iii) The Grand Chamber went on to provide a non-exhaustive list of factors, drawn from the Court’s case-law, to be taken into account as appropriate when assessing the impact of the restriction on access to a lawyer on the fairness of the proceedings including: the vulnerability of the applicant; the legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with; the safeguards available including whether the applicant could challenge the evidence and oppose its use; the quality of the impugned evidence and the degree and nature of any compulsion; the probative value of that evidence and of the other evidence; and the weight of the public interest in the investigation and punishment of the particular offence.
Applying these principles, the Grand Chamber came to different conclusions as regards the first three applicants, on the one hand, and the fourth applicant, on the other.
As to the first three applicants, the Grand Chamber accepted that the Government had convincingly demonstrated a compelling reason for the restriction – the existence of an “urgent need to avert serious adverse consequences for the life and physical integrity of the public” – and found that the proceedings were, as a whole, fair. In contrast, the Court did not find the existence of compelling reasons demonstrated in the fourth applicant’s case given, inter alia, the complete absence of any legal framework enabling the police to act as they did and the deliberate decision by the police not to arrest and caution him. The onus thereby shifted to the Government. Taking into account the high threshold which applied where the presumption of unfairness arose and having regard to the cumulative effect of the procedural shortcomings in the fourth applicant’s case, the Government were found to have failed to demonstrate why the overall fairness of the trial was not irretrievably prejudiced by the decision not to caution the fourth applicant and to restrict his access to legal advice.
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104. Marc Brauer v. Germany, no. 24062/13, 1 September 2016.
105. Lhermitte v. Belgium [GC], no. 34238/09, ECHR 2016.
106. Taxquet v. Belgium [GC], no. 926/05, ECHR 2010.
107. Agnelet v. France, no. 61198/08, 10 January 2013.
108. Oulahcene v. France, no. 44446/10, 10 January 2013.
109. Fraumens v. France, no. 30010/10, 10 January 2013.
110. Matis v. France (dec.), no. 43699/13, 6 October 2015.
111. Rywin v. Poland, nos. 6091/06 and 2 others, 18 February 2016.
112. Daktaras v. Lithuania, no. 42095/98, § 41, ECHR 2000-X.
113. Butkevičius v. Lithuania, no. 48297/99, §§ 49, 50 and 53, ECHR 2002-II (extracts).
114. Gutsanovi v. Bulgaria, no. 34529/10, §§ 191 et seq., ECHR 2013 (extracts).
115. Blokhin v. Russia [GC], no. 47152/06, ECHR 2016, see also under Article 3 and Article 5 above.
116. These included the 1989 UN Convention on the Rights of the Child and the the Beijing Rules, as well as the 2008 European Rules for juvenile offenders subject to sanctions or measures and the 2010 Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice.
117. Bouamar v. Belgium, 29 February 1988, Series A no. 129.
118. Yaroslav Belousov v. Russia, nos. 2653/13 and 60980/14, 4 October 2016, see also under Article 3 (Degrading treatment) above.
119. Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 127, ECHR 2014 (extracts).
120. Sakhnovskiy v. Russia [GC], no. 21272/03, § 97, 2 November 2010.
121. Simon Price v. the United Kingdom, no. 15602/07, §§ 87-94, 15 September 2016.
122. Constantinides v. Greece, no. 76438/12, 6 October 2016.
123. Schatschaschwili v. Germany [GC], no. 9154/10, §§ 111-31, ECHR 2015.
124. Seton v. the United Kingdom, no. 55287/10, § 59, 31 March 2016.
125. Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, ECHR 2016.
126. Salduz v. Turkey [GC], no. 36391/02, ECHR 2008.
127. Dvorski v. Croatia [GC], no. 25703/11, ECHR 2015.
128. Schatschaschwili v. Germany [GC], no. 9154/10, § 113, ECHR 2015.
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