Procedural rights. Right to a fair hearing in civil proceedings (Article 6, 7)

Overview of the Case-law of the ECHR 2018

Procedural rights

Right to a fair hearing in civil proceedings (Article 6 § 1)

Applicability[28]

In Denisov v. Ukraine[29], the Court examined the applicability of Article 6 § 1 to disputes concerning the mandates of judges.

The applicant was dismissed from the position of President of the Kyiv Administrative Court of Appeal on the basis of a failure to perform his administrative duties properly. He remained as a judge in the same court. He complained, inter alia, under Article 6 that the proceedings before the High Council of Justice and the Higher Administrative Court concerning his removal had not been independent or impartial.

The Court summarised in some detail the relevant case-law and principles concerning the application of Article 6 to disputes concerning the mandates of judges. Article 6 was found to apply under its civil head (Vilho Eskelinen and Others v. Finland[30], and Baka v. Hungary[31]) and to have been violated: the High Council of Justice lacked independence and impartiality, defects not remedied by the Higher Administrative Court (Oleksandr Volkov v. Ukraine[32]).

Mirovni Inštitut v. Slovenia[33] concerns the applicability of Article 6 to a call for tenders procedure.

The applicant institute submitted an application for research funding in response to a call for tenders procedure launched by the responsible government department. Its application was rejected. The applicant institute challenged the decision in proceedings before the Administrative Court, claiming (among other matters) that the persons tasked with evaluating the competing applications had been biased. It requested an oral hearing, but the court dismissed the action without holding a hearing. In the Convention proceedings the applicant alleged that this failing amounted to a violation of Article 6 § 1 of the Convention. The Court applied its standard case-law principles in this area to the circumstances of the applicant’s case and found that there had been a violation.

The judgment is noteworthy as regards the Court’s treatment of the applicability of Article 6 to the litigation arising out of the applicant’s unsuccessful tender. It would appear from the case-law up to that point that the fact that an unsuccessful tenderer had the right to object to an award and to have the objections considered at a public hearing did not amount to a civil right, but merely to a right of a public nature. A right to object to an award did not suffice to make Article 6 applicable to proceedings determining the award of a tender, in view of the discretion vested in the body adjudicating on the competing bids to decide who should be granted the tender (see, for example the approach followed in I.T.C. LTD v. Malta[34]; see also Marti AG and Others v. Switzerland[35]; Skyradio AG and Others v. Switzerland[36]; and S.C. Black Sea Caviar S.R.L. v. Romania[37]).

In the instant case, the Court decided to revisit that line of authority, noting that the applicant did not have a right to an award of funding and that the domestic authorities exercised their discretion in examining the merits of the competing bids. It took as its starting-point the principles recently developed by the Grand Chamber in Regner v. the Czech Republic[38]. In that case the Grand Chamber observed in paragraph 105 of its judgment that

“[i]n some cases, lastly, national law, while not necessarily recognising that an individual has a subjective right, does confer the right to a lawful procedure for examination of his or her claim, involving matters such as ruling whether a decision was arbitrary or ultra vires or whether there were procedural irregularities … This is the case regarding certain decisions where the authorities have a purely discretionary power to grant or refuse an advantage or privilege, with the law conferring on the person concerned the right to apply to the courts, which, where they find that the decision was unlawful, may set it aside. In such a case Article 6 § 1 of the Convention is applicable, on condition that the advantage or privilege, once granted, gives rise to a civil right.”

The Court found that statement to be relevant in Mirovni Inštitut (paragraph 29), where the applicant institute

“… clearly enjoyed a procedural right to the lawful and correct adjudication of the tenders. Should the tender be awarded to the applicant institute, the latter would have been conferred a civil right.”

Article 6 was therefore applicable.

The judgment marks the first concrete application of the above-mentioned Regner judgment to an inquiry into the applicability of Article 6 and illustrates how Convention law on applicability has developed. Interestingly, the Chamber concluded its analysis by recalling (paragraph 29 in fine) that

“… there has been a shift in the Court’s case-law towards applying the civil limb of Article 6 to cases which might not initially appear to concern a civil right but which may have direct and significant repercussions on a private right belonging to an individual (see De Tommaso v. Italy [GC], no. 43395/09, § 151, 23 February 2017).”

Access to a court[39]

The Naït-Liman v. Switzerland[40] judgment concerned whether domestic courts are obliged under international law to accept actions for damages by victims of acts of torture committed extraterritorially by, or under the jurisdiction of, a third State.

The applicant alleged that he had been detained and tortured in Tunisia in 1992, on the order of the then Minister of the Interior. He was granted political asylum in Switzerland in 1995. In 2004 he brought proceedings in Switzerland against Tunisia and the Minister for compensation for non-pecuniary damage arising from alleged acts of torture. The Swiss courts refused to entertain the action, the Federal Supreme Court finding that the Swiss courts lacked jurisdiction under the “forum of necessity”[41] given the lack of connection between the facts of the case and Switzerland (section 3 of the Federal Law on private international law)[42].

The applicant complained under Article 6 § 1 that this refusal to examine the merits of his action breached his right of access to court. The Grand Chamber found no violation of that provision.

The Grand Chamber emphasised, at the outset, the broad international consensus recognising the existence of a right for victims of torture to obtain compensation. There was little doubt for the Grand Chamber that this right was binding on States as regards acts perpetrated within the forum territory or by persons within its jurisdiction. The question to be clarified in the present case was whether that right extended to acts committed extraterritorially by, or under the jurisdiction of, a third State.

This judgment is noteworthy in that the Grand Chamber was required to set out its view as to the content of the international legal principles of “universal civil jurisdiction” and “forum of necessity”. The aim was to establish whether the Swiss courts had been obliged by international law to accept the applicant’s action in compensation for acts of torture alleged to have been committed in Tunisia by order of its Minister of the Interior. Whether the Swiss courts had been so obliged would, in turn, determine the scope of the applicable margin of appreciation and, thus, the proportionality of the impugned restriction placed on the applicant’s access to those courts.

(i) Article 6 was considered to be applicable as the applicant had a claim to a right which was, at least on arguable grounds, recognised under Swiss law. In this respect the Grand Chamber relied not only on the general principle of civil liability for unlawful acts under domestic law, but also on elements of international law and, notably, Article 14 of the Convention against Torture[43] which guarantees a right “firmly embedded, as such, in general international law” for victims of acts of torture to obtain redress and to fair and adequate compensation. The Convention against Torture had been ratified by Switzerland; its provisions were part of domestic law and the authorities were required to comply with them. The dispute as to the extraterritoriality of that right was not considered to be decisive for the applicability of Article 6 of the Convention.

(ii) The Grand Chamber went on to review international customary law (based mainly on this Court’s comparative study) and treaty law on universal civil jurisdiction to find that the Swiss courts were not required to accept the applicant’s action:

“187. … it has to be concluded that those States which recognise universal civil jurisdiction – operating autonomously in respect of acts of torture – are currently the exception. Although the States’ practice is evolving, the prevalence of universal civil jurisdiction is not yet sufficient to indicate the emergence, far less the consolidation, of an international custom which would have obliged the Swiss courts to find that they had jurisdiction to examine the applicant’s action.

188. The Court considers that, as it currently stands, international treaty law also fails to recognise universal civil jurisdiction for acts of torture, obliging the States to make available, where no other connection with the forum is present, civil remedies in respect of acts of torture perpetrated outside the State territory by the officials of a foreign State.” (Emphasis added.)

In this respect, the Grand Chamber closely examined the interpretation to be given to Article 14 of the Convention against Torture, concluding that neither the findings of the Committee against Torture, the text of Article 14 itself nor the travaux préparatoires required a State to recognise universal jurisdiction, even if certain recent and non-binding documents encouraged States in that direction.

Furthermore, the Grand Chamber also found that there was neither an international customary rule enshrining the concept of the “forum of necessity” nor any international treaty obligation providing for this.

Accordingly, in the absence of a requirement imposed by international law, the margin of appreciation open to the respondent State had been “wide”. Finding that the Swiss courts’ interpretation of section 3 of the Federal Law on private international law to reject the applicant’s action had not exceeded that margin, that decision was not disproportionate to the legitimate aims pursued so that there had been no violation of Article 6 of the Convention. The recent case of Arlewin v. Sweden[44] was distinguished: given the strength of the links between that claim and Sweden, the question of a possible forum of necessity did not arise in that case.

(iii) Finally, it is worth noting that, in its concluding remarks, the Court nevertheless encouraged States towards progress in this respect.

The Grand Chamber emphasised that its finding of no violation did not call into question the broad international consensus on the right for victims of torture to obtain appropriate and effective redress, or the fact that the States were “encouraged to give effect to this right by endowing their courts with jurisdiction to examine such claims for compensation, including where they are based on facts which occurred outside their geographical frontiers”. Efforts made by States in this regard were commendable. While it was not unreasonable for a State to make the exercise of a forum of necessity conditional on the existence of certain connecting factors with that State, the Court did not rule out the possibility of developments in the future given the dynamic nature of this area. Although it found no violation in the present case,

“the Court invite[d] the States Parties to the Convention to take account in their legal orders of any developments facilitating effective implementation of the right to compensation for acts of torture, while assessing carefully any claim of this nature so as to identify, where appropriate, the elements which would oblige their courts to assume jurisdiction to examine it”.

Zubac v. Croatia[45] concerned issues of foreseeability and proportionality of limitation on access to a court.

The application concerns the Croatian Supreme Court’s refusal to consider an appeal in a property claim. The applicant’s late husband was a claimant in civil proceedings. He valued his action, in his statement of claim, at 10,000 Croatian Kuna (HRK) (approximately 1,300 euros (EUR)). Later during the proceedings, he valued it at HRK 105,000 (EUR 14,000 approximately). The latter amount was accepted by the first and second-instance courts, with court fees being calculated on that basis. The Supreme Court declared his appeal inadmissible ratione valoris considering that the relevant value of his claim was the one indicated in the initial statement of claim (HRK 10,000) and that that value did not reach the statutory threshold (HRK 100,000) at which access to the Supreme Court became a matter of right (section 382(1)(1) of the Civil Procedure Act).

The Chamber concluded that there had been no violation of the Convention.

The scope of this case is very specific. There was no dispute as to, nor was there reason to doubt given the case-law of the Court, the legitimacy and permissibility of ratione valoris restrictions on access to the Supreme Court or the margin of appreciation of the authorities in regulating the modalities of such restrictions. The present case rather concerned the manner in which the implementation of ratione valoris requirements could be assessed.

The judgment is interesting in that it provides a comprehensive and structured outline of the Court’s case-law concerning restrictions on access to a court and, more specifically, restrictions on access to the superior courts. From this case-law, the Grand Chamber extracted certain criteria to be taken into account when deciding whether restrictions, in particular those related to ratione valoris, on access to courts of appeal/cassation comply with the requirements of Article 6 § 1 of the Convention.

In the first place, the Court has to assess the scope of the above-noted margin of appreciation as regards the manner of application of the said rules to an instant case. In making that assessment, the Court would have regard to (i) the extent to which the case had been examined before the lower courts; (ii) the existence of any issues related to the fairness of the proceedings conducted before the lower courts; and (iii) the nature of the role of the Supreme Court.

Secondly, and to assess the proportionality of the restriction, the Court has, to varying degrees, taken account of certain other factors: (i) the foreseeability of the restriction; (ii) whether it is the applicant or the respondent State who should bear the adverse consequences of the errors made during the proceedings that led to the applicant being denied access to the Supreme Court; and (iii) whether the restrictions in question could be said to involve “excessive formalism”. The Grand Chamber proceeded to explain each of these criteria in detail.

– As regards the second criterion of bearing the adverse consequences of errors made, the Grand Chamber confirmed that, when procedural errors occur both on the side of the applicant and the relevant authorities, there was no clear-cut rule in the case-law as regards who should bear the burden. While the solution would depend on all the circumstances, some guiding criteria were discernible from the Court’s case-law: whether the applicant was represented; whether the applicant/legal representative displayed the requisite diligence in pursuing the relevant procedural actions, procedural rights usually going hand in hand with procedural obligations; whether the errors could have been avoided from the outset; and whether the errors are mainly or objectively attributable to the applicant or to the courts.

– With regard to the third criterion concerning “excessive formalism”, the Grand Chamber acknowledged the competing interests at stake. On the one hand, the observance of formalised rules of civil procedure is “valuable and important as it is capable of limiting discretion, securing equality of arms, preventing arbitrariness, securing the effective determination of a dispute and adjudication within a reasonable time, and ensuring legal certainty and respect for the court”. On the other hand, it is “well enshrined” in the Court’s case-law that “excessive formalism” can run counter to the requirement of securing a practical and effective right of access to a court under Article 6 § 1 of the Convention. Issues of “legal certainty” and “proper administration of justice” were considered by the Grand Chamber to be the two central elements for drawing a distinction between excessive formalism and an acceptable application of procedural formalities so that the right of access to a court is considered impaired when the rules cease to serve the aims of legal certainty and the proper administration of justice and form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court.

Finally, the Grand Chamber went on to apply the above principles to the present facts, concluding that there had been no violation of Article 6 of the Convention. The State had a wide margin of appreciation as regards the manner of application of the said rules to an instant case: the applicant’s case had been heard by two instances exercising full jurisdiction in the matter, no discernible lack of fairness arose in the case, and the Supreme Court’s role was limited to reviewing the application of the relevant domestic law by the lower courts. Neither was the Supreme Court’s decision a disproportionate hindrance: access to the Supreme Court was found to be regulated in a coherent and foreseeable manner; the errors made were mainly and objectively imputable to the applicant on whom the adverse consequences fell, and it could not be said that the Supreme Court’s decision declaring the applicant’s appeal on points of law inadmissible amounted to excessive formalism involving an unreasonable and particularly strict application of procedural rules unjustifiably restricting the applicant’s access to its jurisdiction.

Kurşun v. Turkey[46] concerned the destruction of the applicant’s property as a result of an explosion at an oil refinery.

Several investigations were conducted into, among other things, the cause of the explosion and responsibility for it. The conclusions of the different investigations were not entirely conclusive as regards the issue of responsibility. Criminal proceedings initiated against a number of executives of Tüpraş were ultimately discontinued as time barred. The applicant initiated civil proceedings against Tüpraş, but his claim for compensation was finally dismissed by the Court of Cassation because of his failure to comply with the one-year time-limit, contained in Article 60 § 1 of the former Code of Obligations, for suing a tortfeasor. According to that provision, tort actions had to be brought within one year of the date on which the victim acquired knowledge of both the damage and the identity of those responsible. In the opinion of the Court of Cassation, the applicant should be considered to have known that Tüpraş was responsible for the explosion on the date it occurred. His claim was therefore out of time.

In the Convention proceedings, the applicant complained of the above events under Article 6 of the Convention and Article 1 of Protocol No. 1.

The Court found a breach of Article 6 as regards the manner in which the relevant chamber of the Court of Cassation interpreted and applied the time-limit in the applicant’s civil action. Among other matters, it observed that only a few months before the dismissal of the applicant’s claim another chamber of the Court of Cassation had examined compensation claims brought against Tüpraş by other victims of the same explosion. That chamber had interpreted the time-limit rule in the victims’ favour notwithstanding the fact that their claims had not been brought within one year of the date of the explosion. For the Court, the difference in approach suggested a lack of clarity in the interpretation of the relevant time-limit rule in the context of the present facts. Furthermore, the chamber which examined and dismissed the applicant’s claim did not provide any reasons for departing from the earlier decisions. Of particular interest is the fact that the Court further stressed that the interpretation of limitation periods in disregard of relevant circumstances may give rise to an unjustified restriction on the right of access to a court. Having regard to what it described as “the extraordinary circumstances of the incident” (paragraph 104), it observed (paragraph 103) that

“… the Court of Cassation’s interpretation and application of the relevant time-limit rule, whereby the applicant was required to institute proceedings at a moment when he could not realistically have sufficient knowledge of the cause of the damage or the identity of those responsible, seems very formalistic …”

The above combination of factors led the Court to conclude that the applicant had been denied access to a court in breach of Article 6. The Court’s finding had implications for part of its reasoning under Article 1 of Protocol No. 1.

Fairness of the proceedings[47]

In Ramos Nunes de Carvalho e Sá v. Portugal48, the Grand Chamber examined the review by a judicial body of disciplinary proceedings against a judge and the issues of the independence and impartiality of that body, the scope of the review and the lack of a public hearing.

The case concerns three sets of disciplinary proceedings against the applicant judge which led to 240 days’ suspension from duty imposed by the High Council of the Judiciary (“CSM”). The Judicial Division of the Supreme Court reviewed and upheld those disciplinary decisions and penalties.

The applicant complained mainly under Article 6 § 1. The Grand Chamber found the complaint concerning the independence and impartiality of the CSM to be inadmissible (out of time) and her complaint under Article 6 § 3 (a) and (b) incompatible ratione materiae. It concluded that there had been no violation of Article 6 § 1 (civil) as regards the independence and impartiality of the Judicial Division of the Supreme Court and found a violation of that provision because the scope of its review was insufficient and the applicant did not have a public hearing.

This case does not concern the more usual context, in which the Court has assessed the judicial review of the exercise of administrative discretion in a specialised area of the law (planning, social welfare, etc.), but rather judicial review of a disciplinary decision concerning a judge. The Grand Chamber’s finding that the court conducting this judicial review did not lack independence or impartiality is important for legal and constitutional arrangements in Portugal and, by extrapolation, other jurisdictions. In assessing the sufficiency of that judicial review, the Grand Chamber adapted the Bryan criteria (Bryan v. the United Kingdom[49]) to reflect the specificity and importance of the role of judges and the judiciary in a democratic State.

(i) The Grand Chamber reviewed separately the complaint concerning the lack of independence and impartiality of the Judicial Division of the Supreme Court, finding no violation of Article 6 in that regard.

(ii) As to the other two complaints under Article 6 (the scope of the judicial review and the lack of a hearing, examined together), the Grand Chamber, as noted above, adapted the Bryan criteria to the particular context of the judicial review of disciplinary proceedings against judges.

(a) The first of the Bryan criteria – that judicial review had to be appropriate to the “subject matter of the dispute” (in the present case, disciplinary administrative decisions) – was considered to apply with even greater force to such proceedings against judges who had to “enjoy the respect that is necessary for the performance of their duties”. Disciplinary proceedings involved particularly serious consequences for the lives and careers of judges: the present accusations were liable to result in the applicant’s removal from office or suspension from duty and thus “very serious penalties which carried a significant degree of stigma”. When a State initiates such disciplinary proceedings, public confidence in the functioning and independence of the judiciary is at stake; and in a democratic State, this confidence guarantees the very existence of the rule of law. Furthermore, the Court stressed the growing importance attached to the separation of powers and to the necessity of safeguarding the independence of the judiciary.

(b) As to the second Bryan criterion (procedural guarantees before the CSM), the Grand Chamber found that there were indeed certain guarantees. However, the lack of a hearing before the CSM meant that it did not exercise its discretionary powers on an adequate factual basis.

(c) Under the third Bryan criterion (the proceedings before the Judicial Division), the Grand Chamber examined four matters: the issues submitted for consideration; the methods used; the decision-making powers of the court; and the reasons for its decisions. The Grand Chamber focused on the complaint concerning the lack of a public hearing; the judgment is again pedagogical in its review of the case-law in this respect (§§ 188, 190-91 and 210), which case-law confirms that, in the context of disciplinary proceedings, dispensing with a public hearing should be exceptional and had to be justified in the light of the Court’s case-law. Having regard, in particular, to the complex legal and decisive factual issues in dispute, the case should not have been dealt with on the papers alone, the Grand Chamber again emphasising the importance and specificity of the role of judges and the judiciary.

The Grand Chamber concluded as follows.

“214. … in the circumstances of the present case – taking into consideration the specific context of disciplinary proceedings conducted against a judge, the seriousness of the penalties, the fact that the procedural guarantees before the CSM were limited, and the need to assess factual evidence going to the applicant’s credibility and that of the witnesses and constituting a decisive aspect of the case – the combined effect of two factors, namely the insufficiency of the judicial review performed by the Judicial Division of the Supreme Court and the lack of a hearing either at the stage of the disciplinary proceedings or at the judicial-review stage, meant that the applicant’s case was not heard in accordance with the requirements of Article 6 § 1 of the Convention.”

Independent and impartial tribunal[50]

The judgment in Ramos Nunes de Carvalho e Sá v. Portugal[51] concerned, among other things, the independence and impartiality of a judicial body during disciplinary proceedings against a judge.

It is worth noting that one aspect of the present complaint – that the Supreme Court judges of the Judicial Division were by definition under the authority of the High Council of the Judiciary (“CSM”) as regards their own careers and disciplinary matters – was found to constitute an independence and impartiality problem in Oleksandr Volkov v. Ukraine[52]. However, the present Grand Chamber distinguished the Oleksandr Volkov finding, because the Portuguese disciplinary body, the CSM, did not disclose the serious structural deficiencies and bias as did the Ukrainian High Council of Justice (this reasoning was recently confirmed in Denisov v. Ukraine[53]). Interestingly from the point of view of other legal systems, the Grand Chamber commented as follows.

“163. … In more general terms the Court considers it normal that judges, in the performance of their judicial duties and in various contexts, should have to examine a variety of cases in the knowledge that they may themselves, at some point in their careers, be in a similar position to one of the parties, including the defendant. However, a purely abstract risk of this kind cannot be regarded as apt to cast doubt on the impartiality of a judge in the absence of specific circumstances pertaining to his or her individual situation. Even in the context of disciplinary cases a theoretical risk of this nature, consisting in the fact that judges hearing cases are themselves still subject to a set of disciplinary rules, is not in itself a sufficient basis for finding a breach of the requirements of impartiality.”

Accordingly, and given the particular guarantees shielding the judges of the Judicial Division from outside pressures, the present applicant’s fears about a lack of independence/impartiality based on this aspect were considered not to be objectively justified.

Mutu and Pechstein v. Switzerland[54] concerned the settlement of disputes by means of arbitration and the implications for procedural fairness guaranteed by Article 6.

The applicants, a professional footballer and a professional speed skater respectively, were involved in proceedings before the Court of Arbitration for Sport (“the CAS”) in Lausanne. The CAS operates within the framework of an independent private-law foundation. It was set up for the purposes of hearing disputes arising in the international sports sector (for example, contractual disputes between footballers and their clubs in the case of the first applicant, and the imposition of disciplinary sanctions in the case of the second applicant). An appeal against the CAS’s decisions may be filed with the Swiss Federal Tribunal. The applicants complained that the proceedings before the CAS were unfair because the panels which heard their cases lacked independence and impartiality. The applicants’ appeals to the Swiss Federal Tribunal were unsuccessful. Both applicants complained in the Convention proceedings under Article 6 (on different grounds – see below) of a lack of independence and impartiality of the CAS. The second applicant also complained that neither the CAS nor the Swiss Federal Tribunal had held a public hearing in her case. The Court found a breach of the Convention only in respect of the lack of a public hearing before the CAS in the case of the second applicant.

The judgment is of interest in that it provides a further illustration of the interplay between Convention law and the international regulatory regimes which apply to professional sportsmen and women (see, most recently, National Federation of Sportspersons’ Associations and Unions (FNASS) and Others v. France[55]). Importantly, the instant case also allowed the Court the possibility to review its case-law under Article 6 on the use of arbitration mechanisms and the consequences this entails for the right of access to a court or tribunal and the application of the corresponding guarantees of a fair procedure. An essential consideration for the Court in this case was whether, by opting to have their grievances dealt with by the CAS and not by a domestic court or tribunal, the applicants had freely waived the benefit of the procedural-fairness guarantees of Article 6, or at least some of them. The Government contended that, with the exception of the appeal proceedings before the Swiss Federal Tribunal, both applicants had voluntarily waived their right to have their civil rights determined by a court in accordance with Article 6 fairness requirements.

The Court has clarified over the years in its case-law that the resolution of civil disputes by means of arbitration rather than in the ordinary national courts is compatible with Article 6. It has underscored the advantages of arbitration over litigation in court when it comes to the settlement of commercial disputes. The instant case allowed it the opportunity to confirm that that conclusion was equally valid for the professional-sports sector, noting in the instant case the possibility of an ultimate review of the fairness of the CAS proceedings by the Swiss Federal Tribunal.

The central question was whether the arbitration procedure had been imposed on the applicants. The Court’s case-law in this area has distinguished between voluntary and forced arbitration, the circumstances being determinative of the category into which a particular case falls (Suda v. the Czech Republic[56]; Tabbane v. Switzerland[57]; Suovaniemi and Others v. Finland[58]; Eiffage S.A. and Others v. Switzerland[59]; and Transado-Transportes Fluviais Do Sado S.A. v. Portugal[60]).

It is noteworthy that the Court found that the second applicant had no choice but to take her case to the CAS. It was clear from the rules of the International Skating Union that disputes had to be brought before the CAS on pain of exclusion from international competitions. The second applicant could not be said to have freely waived her right to benefit from the protection of Article 6, in particular the right to a public hearing before an independent and impartial tribunal.

Interestingly, the Court found that the first applicant had not been obliged to accept the compulsory jurisdiction of the CAS. According to the relevant international regulations, footballers had a choice in the matter. How that choice was to be exercised was a question to be answered in the context of the contractual negotiations between them and their clubs. The first applicant had agreed in his contract with his club to have recourse to the jurisdiction of the CAS and not to that of the national courts in the event of litigation between them. That said, it is noteworthy that the Court went on to find that the first applicant could not be considered to have unequivocally consented to have his case heard by a panel of the CAS lacking independence and impartiality. It was significant for the Court that the first applicant, using the rules governing proceedings before the CAS, had in fact sought to challenge one of the arbitrators on the panel. The proceedings should therefore have offered the first applicant, like the second applicant, the guarantees of Article 6.

Turning to the merits of the applicants’ complaints, the Court found in the light of its established case-law and the reasons adduced by the Swiss Federal Tribunal in the appeal proceedings that neither of the arbitrators impugned by the first applicant had lacked impartiality. There had been no breach of Article 6 in his case.

The second applicant claimed that the manner of appointment of members to the panels of the CAS had created a structural problem which undermined the independence and impartiality of the panels. In essence, she argued that the rules which applied at the time of her arbitration proceedings allowed for the over-representation on CAS panels of appointees of the governing sports federations to the detriment of the representation of athletes, who had, moreover, no say in the manner in which their representatives were to be chosen, in contrast to commercial arbitration proceedings. The Court rejected the second applicant’s argument. It was crucial for its reasoning that, while accepting that the governing sports federations were able to influence the appointment of arbitrators, the second applicant had not advanced any arguments which cast doubt on the independence and impartiality, in general, of those approximately 300 persons who featured on the list of possible arbitrators at the time of her proceedings. The Swiss Federal Tribunal had reached a similar conclusion.

The Court found a breach of Article 6 in that the second applicant had not had a public hearing before the CAS. She had not waived her right to a public hearing; she had in fact requested one during the arbitration proceedings. In the view of the Court, the issues she had raised deserved to be examined given that they raised among other things disputed questions of fact leading to the sanction imposed on her. This aspect of the judgment is of interest in view of its comprehensive treatment of the circumstances in which a public hearing is required by Article 6.

Right to a fair hearing in criminal proceedings (Article 6 § 1)

Applicability

In Ramos Nunes de Carvalho e Sá v. Portugal[61], the Chamber had found it unnecessary to examine the complaints under the criminal head of Article 6. However, the Grand Chamber observed that it was competent to examine these complaints because they had been declared admissible (Öneryıldız v. Turkey[62], and Kurić and Others v. Slovenia[63]) and, since the civil and criminal aspects of Article 6 were not necessarily mutually exclusive, it was of the view that it should examine them. It ultimately found that Article 6 did not apply under its criminal head. The judgment provides a useful review of the application of the Engel and Others v. the Netherlands[64] criteria to determine whether disciplinary proceedings against various professionals (including lawyers, notaries, civil servants, doctors, members of the armed forces, liquidators and judges) could be considered “criminal” in scope.

Fairness of the proceedings[65]

In Baydar v. the Netherlands[66], the Court examined the scope of a final court’s obligation to give reasons for refusing a request for a preliminary ruling from the Court of Justice of the European Union (CJEU).

The applicant lodged a cassation appeal with the Supreme Court, contesting his conviction for, among other things, people trafficking. In his reply to the Advocate General’s observations on his grounds of appeal, he requested that the Supreme Court seek a preliminary ruling from the CJEU on the interpretation of a matter of European Union law. The Supreme Court rejected the applicant’s appeal (with the exception of the ground relating to the length of the proceedings). Referring to section 81(1) of the Judiciary (Organisation) Act, the Supreme Court stated that its decision required no further reasoning “as the grievances do not give rise to the need for a determination of legal issues in the interest of legal uniformity or legal development”.

The applicant complained in the Convention proceedings that the unreasoned refusal of his request for a preliminary ruling breached Article 6 § 1 of the Convention. The Court found that there had been no breach of that Article.

The judgment is noteworthy in that this is the first time the Court has addressed at length the interaction between its case-law on, firstly, the scope of the requirement to give reasons for a refusal to refer a question to the CJEU for a preliminary ruling (see, in this connection, Ullens de Schooten and Rezabek v. Belgium[67]; Vergauwen and Others v. Belgium[68]; and Dhahbi v. Italy[69]) and, secondly, the Court’s acceptance that a superior court may dismiss an application for appeal on the basis of summary reasoning (see Wnuk v. Poland[70]; Gorou v. Greece (no. 2)[71]; and Talmane v. Latvia[72], with further references). It is of interest that the Court’s reasoning in Baydar was situated within the framework of an accelerated procedure for the disposal of appeals in cassation in the interests of efficiency. This procedure enables the Supreme Court to reject an appeal if it does not constitute grounds for overturning the judgment appealed against and does not give rise to the need for a determination of legal issues (section 81(1) of the Judiciary (Organisation) Act), and to declare an appeal inadmissible as having no prospect of success (section [8]a of the same Act).

On the first point, the Court summarised the position as follows in Dhahbi (cited above, § 31).

“– Article 6 § 1 requires the domestic courts to give reasons, in the light of the applicable law, for any decision refusing to refer a question for a preliminary ruling;

– when the Court hears a complaint alleging a violation of Article 6 § 1 on this basis, its task consists in ensuring that the impugned refusal has been duly accompanied by such reasoning;

– whilst this verification has to be made thoroughly, it is not for the Court to examine any errors that might have been committed by the domestic courts in interpreting or applying the relevant law;

– in the specific context of the third paragraph of Article 234 of the Treaty establishing the European Community (current Article 267 of the Treaty on the Functioning of the European Union (TFEU)), this means that national courts against whose decisions there is no judicial remedy under national law, and which refuse to request a preliminary ruling from the CJEU on a question raised before them concerning the interpretation of European Union law, are required to give reasons for such refusal in the light of the exceptions provided for by the case-law of the CJEU. They must therefore indicate the reasons why they have found that the question is irrelevant, that the European Union law provision in question has already been interpreted by the CJEU, or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt.”

Regarding the second point – the dismissal of an appeal by a superior court using summary reasoning – the Court recently reiterated in Talmane (cited above, § 29) that

“… courts of cassation comply with their obligation to provide sufficient reasoning when they base themselves on a specific legal provision, without further reasoning, in dismissing cassation appeals which do not have any prospects of success (see Sale v. France, no. 39765/04, § 17, 21 March 2006, and Burg and Others v. France (dec.), no. 34763/02, ECHR 2003-II; for the same approach with regard to constitutional court practice, see Wildgruber v. Germany (dec.), no. 32817/02, 16 October 2006). …”

The Court went on to find that, as regards national courts against whose decisions there is no judicial remedy under national law (such as the Supreme Court in the instant case), this second line of case-law was in line with the principles set out in Dhahbi (cited above). Significantly, it observed that the CJEU itself has ruled that the domestic courts referred to in the third paragraph of Article 267 of the TFEU are not obliged to refer a question regarding the interpretation of EU law if the question is not relevant, that is to say, if the answer to that question, whatever it may be, cannot have any effect on the outcome of the case. It is also of significance that the Court gave weight to the Supreme Court’s subsequent clarification of its practice regarding the application of sections 80a and 81(1) of the Judiciary (Organisation) Act when it comes to requests for a preliminary ruling. It observed (paragraph 48) as follows.

“Taking into account the Supreme Court’s explanation that it is inherent in a judgment in which the appeal in cassation is declared inadmissible or dismissed by application of and with reference to sections 80a or 81 of the Judiciary (Organisation) Act that there is no need to seek a preliminary ruling since the matter did not raise a legal issue that needed to be determined …, the Court furthermore accepts that the summary reasoning contained in such a judgment implies an acknowledgment that a referral to the CJEU could not lead to a different outcome in the case.”

The Court concluded that, in the context of accelerated procedures within the meaning of sections 80a or 81 of the Judiciary (Organisation) Act, no issue of principle arises under Article 6 § 1 of the Convention when an appeal in cassation which includes a request for referral is declared inadmissible or dismissed with a summary reasoning where it is clear from the circumstances of the case – as in the instant case – that the decision is neither arbitrary nor otherwise manifestly unreasonable.

Presumption of innocence (Article 6 § 2)

G.I.E.M. S.r.l. and Others v. Italy[73] concerned the confiscation of property in the absence of a criminal conviction.

The applicants were companies incorporated under Italian law and an Italian citizen, Mr Gironda. Court orders, confiscating their land and buildings, were issued against them on the ground of unlawful development of their land. However, no criminal proceedings for unlawful development had been issued against the directors of G.I.E.M. S.r.l.; the other applicant companies had not been parties to the criminal proceedings against their directors; and although Mr Gironda had been a defendant in criminal proceedings, that action had been discontinued as time-barred. Mr Gironda alleged, in particular, a violation of Article 6 § 2 due to the fact that his property had been confiscated without his having been convicted.

The Grand Chamber found a violation of Article 6 § 2 as regards Mr Gironda.

Although the proceedings against Mr Gironda had been discontinued as statute-barred, all elements of the offence of unlawful site development had been confirmed by the Court of Cassation. Since Article 6 § 2 protects individuals who have been acquitted of a criminal charge, or in respect of whom criminal proceedings have been discontinued, from being treated by public officials and authorities as though they are in fact guilty of the offence charged (Allen v. the United Kingdom[74]), the declaration of guilt in substance by the Court of Cassation, when the prosecution was already time-barred, was found to have breached Mr Gironda’s right to be presumed innocent and thus Article 6 § 2 of the Convention. It is interesting to note that the declaration by the Court of Cassation led to no breach of the principle of legality under Article 7.

Defence rights (Article 6 § 3)

Defence through legal assistance (Article 6 § 3 (c))[75]

Correia de Matos v. Portugal[76] concerned the right of an accused with legal training to represent himself in person and the differing positions of the Court and the UN Human Rights Committee (HRC) on the question.

The applicant, a lawyer by training, was convicted in 1998 for insulting a judge. According to Portuguese law, it is obligatory for an accused (in criminal proceedings) to be represented by counsel, regardless of his legal training (the applicant, a lawyer by profession, had already been suspended from the Bar Council roll). Relying on Article 6 §§ 1 and 3 (c), he applied to this Court, complaining of not being allowed to conduct his own defence and that he had been assigned a lawyer to represent him against his will. The Court found the application inadmissible as manifestly ill-founded. His subsequent communication to the HRC, on the same facts and complaints, led to a finding that there had been a failure to observe Article 14 § 3 (d) of the International Covenant on Civil and Political Rights[77], views reiterated in the later HRC General Comment No. 32 (23 August 2007, UN Doc. CCPR/C/GC/32, paragraph 37) and Concluding Observations on the fourth periodic report of Portugal (23 November 2012, UN Doc. CCPR/C/PRT/CO/4, paragraph 14), the latter recommending that the rule of mandatory representation be less rigid. Portuguese law was not amended.

The present application concerns similar facts and the same complaints. The applicant was again convicted for insulting a judge, he was refused leave to conduct his own defence and he was defended by a lawyer assigned to him. He again complained under Article 6 § 3 (c) that, despite his legal training, he was not allowed to represent himself. The Grand Chamber concluded that there had been no violation of Article 6 §§ 1 and 3 (c) of the Convention.

The case is noteworthy in two respects. In the first place, it reaffirms the Court’s case-law on the scope of the right to represent oneself in criminal proceedings. Secondly, it addresses the basis on which that position was maintained even though State and international practice would appear to have taken another direction.

(i) The judgment contains a comprehensive review of the Court’s case-law under Article 6 as regards mandatory legal assistance in criminal proceedings. The Grand Chamber pointed out that the decision in this respect falls within the traditional margin of appreciation of States, who are considered to be better placed than the Court to choose the appropriate means by which to enable their judicial systems to guarantee the rights of the defence. It emphasised that the rights guaranteed by Article 6 § 3 are not ends in themselves: rather their intrinsic aim is to contribute to ensuring the fairness of the criminal proceedings as a whole (Ibrahim and Others v. the United Kingdom[78]). The relevant test by which to examine compliance of mandatory legal assistance in criminal proceedings with Article 6 §§ 1 and 3 (c) was therefore summed up as follows in Correia de Matos.

“143. … the following principles have to be applied: (a) Article 6 §§ 1 and 3 (c) does not necessarily give the accused the right to decide himself in what manner his defence should be assured; (b) the decision as to which of the two alternatives mentioned in that provision should be chosen, namely the applicant’s right to defend himself in person or to be represented by a lawyer of his own choosing, or in certain circumstances one appointed by the court, depends, in principle, upon the applicable domestic legislation or rules of court; (c) member States enjoy a margin of appreciation as regards this choice, albeit one which is not unlimited. In the light of these principles, the Court has to examine, firstly, whether relevant and sufficient grounds were provided for the legislative choice applied in the case at hand. Secondly, even if relevant and sufficient grounds were provided, it is still necessary to examine, in the context of the overall assessment of the fairness of the criminal proceedings, whether the domestic courts, when applying the impugned rule, also provided relevant and sufficient grounds for their decisions. In the latter connection, it will be relevant to assess whether an accused was afforded scope in practice to participate effectively in his or her trial.”

The Grand Chamber went on to apply that test to the facts of the present case. Having regard to the procedural context as a whole in which the requirement of mandatory representation was applied (notably, the possibilities remaining open to an accused to intervene in person in the proceedings) and bearing in mind the margin of appreciation enjoyed by the State, the reasons for the impugned choice of the Portuguese legislature were considered to be both relevant and sufficient. Since, in addition, there was no basis on which to find that the criminal proceedings against the applicant had been unfair, the Grand Chamber concluded that there had been no violation of Article 6 §§ 1 and 3 (c) of the Convention.

(ii) Secondly, in examining any factors which could limit a State’s margin of appreciation, the Grand Chamber had regard to State practice as well as to developments in international and, where relevant, EU law.

It is interesting to note that the State and international practice examined did not lean in favour of mandatory legal assistance. In the first place, the Court’s comparative study revealed a tendency among States to recognise the right of an accused to defend himself or herself in person without the assistance of a registered lawyer. (Of the thirty-five States reviewed, thirty-one had established the right to conduct one’s own defence as a general rule, with four States prohibiting, as a general rule, self-representation.) Secondly, the case-law of the Court to date and of the HRC differed. At the same time, the Grand Chamber reiterated that the Convention had to be interpreted as far as possible in harmony with other rules of international law; it accepted that when interpreting the Convention it had had regard on a number of occasions to the views of the HRC and its interpretation of the ICCPR; it noted that the relevant provisions of the Convention and the ICCPR were almost identical; and the Grand Chamber acknowledged that the facts of the present case and of its prior communication to the HRC were virtually identical. Thirdly, the terms of the Charter of Fundamental Rights of the European Union, its explanatory notes and Directive 2013/48/EU[79] suggested that the relevant rights in the Charter corresponded to those in Article 6 §§ 1, 2 and 3 of the Convention. The Directive appeared to leave the choice regarding whether or not to opt for a system of mandatory legal representation to individual member States.

Nevertheless, this State and international practice was not considered by the Grand Chamber to be determinative. The Grand Chamber relied on the considerable freedom in the choice of means which the Court’s well-established case-law had conferred on States to ensure that their judicial systems complied with the requirements of the rights guaranteed by Article 6 § 3 (c) and on the fact that the intrinsic aim of that provision is the fairness of the criminal proceedings as a whole. While the Court observed that an absolute bar on the right to defend oneself in person in criminal proceedings without the assistance of counsel might, under certain circumstances, be excessive and while there might be a “tendency” among the Contracting Parties to recognise the right of an accused to defend himself or herself without the assistance of a registered lawyer, there was no consensus as such and even national legislations which provided for such a right varied considerably as to when and how they do so.

In Beuze v. Belgium[80] the Court examined the statutory (general and mandatory) restriction on a suspect’s access to a lawyer under Article 6 §§ 1 and 3 (c).

Having been surrendered to the custody of the Belgian police (European Arrest Warrant), the applicant was later convicted and sentenced for murder. From his surrender to his indictment, he was interviewed by the police five times, three times by the investigating judge and twice by the Crown Prosecutor, and he participated in a reconstruction of the crime scene, each time without a lawyer. He complained under Article 6 §§ 1 and 3 (c) that, by virtue of the law in force at the time, (i) he could not communicate with a lawyer until after he had been formally charged and remanded in custody and, thus, after his first interview with the police, and he had not been given sufficient information about his right to remain silent and his right not to be compelled to incriminate himself; and (ii) while he could thereafter consult with his lawyer, the lawyer was not allowed to attend subsequent interviews with the police or investigating judge or to assist in other investigative acts during the judicial investigation.

The Grand Chamber concluded that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention. The general and mandatory restriction on the right of access to a lawyer flowing from the law in force at the time could not amount to a compelling reason so that the overall fairness of the proceedings had to be strictly scrutinised. In this respect, the Grand Chamber considered that the criminal proceedings against the applicant, when considered as a whole, did not cure the procedural defects occurring at the pre-trial stage.

(i) The judgment in Ibrahim and Others v. the United Kingdom[81] confirmed and clarified a two-stage method for testing compliance with Article 6 §§ 1 and 3 (c) of restrictions on access to a lawyer: were there compelling reasons for the restriction and, if not, were the proceedings as a whole fair when strictly scrutinised. The principal issue before the Grand Chamber in the present case was whether this two-stage test also applied to cases, such as this one, where the restriction on the right to legal assistance was general and mandatory (statutory). In other words, did a statutory restriction amount to an automatic violation of the Convention or was the two-stage test to be applied to this statutory and indeed to any type of restriction on the right of access to a lawyer. The Grand Chamber confirmed the latter option to be the correct one.

In particular, the Court had applied the two-stage test in Salduz v. Turkey[82] and found that a statutory restriction was in issue and that it could not constitute a compelling reason, and so the Chamber proceeded to analyse the consequences of that restriction in terms of overall fairness. Subsequently, this two-stage Salduz approach was applied in the majority of cases, whether they concerned statutory restrictions of a general and mandatory nature or restrictions stemming from case-specific decisions taken by the competent authorities. It was true that certain judgments against Turkey had found that a systemic restriction meant an automatic breach of the Convention without it being necessary to apply the two-stage test (see, in particular, Dayanan v. Turkey[83]). However, the Grand Chamber found that that divergence had indeed been resolved by Ibrahim and Others, cited above: it confirmed therefore the applicability of the two-stage test (as described above) to any type of restriction (general or individual) on the right of a suspect to have access to a lawyer.

(ii) Secondly, the judgment provided the Grand Chamber with the opportunity to clarify, in concrete terms, the content of the right of access to a lawyer and legal assistance.

Having reiterated in some detail the aim pursued by the right of access to a lawyer, the Grand Chamber set down two minimum requirements of this right. In the first place, suspects must be able to contact a lawyer from the time they are taken into custody. It must therefore be possible for a suspect to consult with his or her lawyer prior to an interview and even where there is no interview. The lawyer must be able to confer with his or her client in private and receive confidential instructions. Secondly, suspects have the right to have their lawyer physically present during their initial police interviews and whenever they are questioned in the subsequent pre-trial proceedings. Moreover, such physical presence must enable the lawyer “to provide assistance that is effective and practical rather than merely abstract” and, in particular, to ensure that the defence rights of the interviewed suspect are not prejudiced.

Although not part of the minimum requirements of the right, the Grand Chamber went on to note other forms of restriction on access to a lawyer which could, depending on the specific circumstances of each case and the legal system concerned, undermine the fairness of the proceedings: a refusal or difficulties encountered by a lawyer in seeking access to the criminal case file, at the earliest stages of the criminal proceedings or during the pre-trial investigation; and the non-participation of a lawyer in investigative measures such as identity parades or reconstructions. In addition, in determining whether access to a lawyer during the pre-trial phase had been practical and effective, the Grand Chamber also noted that account had to be taken, on a case-by-case basis in assessing the overall fairness of proceedings, of the whole range of services specifically associated with legal assistance: discussion of the case, organisation of the defence, collection of exculpatory evidence, preparation for questioning, support for an accused in distress, and verification of the conditions of detention.

(iii) Thirdly, in examining the fairness of the proceedings as a whole (including the non-exhaustive list of factors to be taken into account in this regard set out in Ibrahim and Others, cited above), it is interesting to note that the Grand Chamber reiterated the relatively broad definition of what is to be understood by “self-incriminating” statements. The privilege against self-incrimination was not confined to actual confessions or to remarks which were directly incriminating: for statements to be regarded as self-incriminating it was “sufficient for them to have substantially affected the accused’s position” (referring to Schmid-Laffer v. Switzerland[84], and A.T. v. Luxembourg[85]; see also Saunders v. the United Kingdom[86]). In the present case, the applicant had never confessed to the charges and did not incriminate himself stricto sensu. However, he had given detailed statements to the investigators which the Court considered influenced their line of questioning, impacted on the investigators’ suspicions and undermined his credibility (he had changed his version of the facts several times). Reiterating that very strict scrutiny was called for where there were no compelling reasons to justify the restriction in issue, the Court found that significant weight had to be attached to these factors in its assessment of the overall fairness of the proceedings.

(iv) Finally, as regards the obligation to notify a suspect of his rights, the Grand Chamber confirmed that, while there was “in principle no justification” for a failure to notify a suspect of his or her right to a lawyer, of the privilege against self-incrimination and of his or her right to remain silent, the Court must nevertheless examine whether the proceedings as a whole were fair. However, it clarified that, where this notification had not taken place and where access to a lawyer was delayed, the need for this notification took on a particular importance so that the failure to notify would therefore render it “even more difficult for the Government to show that the proceedings were as a whole fair”. In the present case, the fact that the applicant had been informed that his statements could be used in evidence did not amount to sufficiently clear information so as to guarantee his right to remain silent and not to incriminate himself in the absence of his lawyer.

Examination of witnesses (Article 6 § 3 (d))

In Murtazaliyeva v. Russia[87] the Grand Chamber clarified the relevant principles for assessing a domestic court’s refusal to call a witness requested by the defence.

The applicant is an ethnic Chechen. Shortly after her arrival in Moscow from Chechnya, she was befriended by a police officer, A. The latter found a flat for her, which she shared with two other young women, both converts to Islam. The flat, which belonged to the local police department, had been fitted out with secret audio- and video-recording devices. The following month, the applicant was brought to a police station after an identity check revealed that the official registration of her stay in Moscow had expired. Her handbag was searched by police officers in the presence of two attesting witnesses, B. and K., and was found to contain explosives. The applicant was subsequently charged with terrorism-related offences. Police officer A. made pre-trial statements. The applicant’s lawyers requested at the trial that A. be called for examination. Informed by the presiding judge that A. was unavailable, the lawyers agreed to the reading-out of his pre-trial statements. The defence’s request to call the two attesting witnesses in support of its claim that the police had planted the explosives prior to the applicant’s search was dismissed. In the appeal proceedings, the Supreme Court observed that the presence of the attesting witnesses had not been necessary since the applicant herself had claimed that the explosives had been planted in her bag before she was searched. The applicant was convicted as charged. The court had regard to, among other matters, the statements of several prosecution witnesses, the testimony of the applicant’s flatmates, incriminating materials found at her flat, forensic-examination reports and the transcripts of the police surveillance videotapes of the flat.

In the Convention proceedings, the applicant complained that the failure to summon police officer A. and the two attesting witnesses for examination breached Article 6 §§ 1 and 3 (d) of the Convention.

Interestingly, the Grand Chamber, unlike the Chamber, accepted the Government’s plea that the applicant had waived her right to examine police officer A. The case gave the Grand Chamber the opportunity to restate and apply its well-established case-law on the notion of waiver in the context of the right to examine a witness. Whether the requirements of a valid waiver have been complied with is essentially a question to be resolved on the facts. In the applicant’s case, the Grand Chamber made the following, non-exhaustive, findings: the applicant’s defence lawyers had unequivocally agreed to the reading-out of A.’s statement; they did not insist that A. be heard, although this possibility was available to them under domestic law; they chose not to revert to the matter in the appeal proceedings; and they must be taken to have been aware that by agreeing to the reading-out of A.’s statements they would lose the possibility to have him heard and that his statements would be taken into consideration by the court.

The Grand Chamber declared the applicant’s complaint inadmissible as being manifestly ill-founded. Although the Chamber had dealt with this complaint on the merits, and found no violation, the applicant’s case is a good illustration of the fact that the Grand Chamber may reconsider a decision to declare an application admissible where it concludes that it should have been declared inadmissible for one of the reasons set out in the first three paragraphs of Article 35 of the Convention.

The Grand Chamber’s treatment of the domestic courts’ refusal of the applicant’s request to summon B. and K. (the attesting witnesses) is of greater jurisprudential significance. It clarified the principles to be applied to the calling and examining of defence witnesses within the meaning of Article 6 § 3 (d) of the Convention. The judgment in Perna v. Italy[88] has been seen as a key point of reference for assessing whether the refusal to summon a witness for the defence has complied with the requirements of Article 6 § 3 (d). According to the compliance test set out in paragraph 29 of Perna, two questions have to be addressed: whether the applicant has substantiated his or her request to call a particular witness by referring to the relevance of that individual’s testimony for “the establishment of the truth” and, secondly, whether the domestic courts’ refusal to call that witness undermined the overall fairness of the proceedings. Significantly, the Grand Chamber’s review of the pre- and post-Perna case-law revealed that the Court has also consistently examined, and considered as a weighty factor, the manner in which the domestic courts ruled on a request by the defence to call a witness and, importantly, whether they considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial. It is noteworthy that the Grand Chamber decided in the instant case to bring that requirement to the fore, being of the opinion that it was in fact an implicit and integral component of the test and a logical link between the two limbs of that test, which thus becomes a three-pronged test (paragraph 158):

“1. Whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation.

2. Whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial.

3. Whether the domestic courts’ decision not to examine a witness undermined the overall fairness of the proceedings.”

Importantly, the Grand Chamber provided guidance for the examination of future cases in the light of its clarification of the applicable principles. A number of points are worth highlighting.

Regarding the first step, the Grand Chamber noted that under the Perna test the issue of whether an accused substantiated his or her request to call a witness on his or her behalf is decided by reference to the relevance of that individual’s testimony for “the establishment of the truth”. However, in view of the post-Perna case-law, it considered that it was “necessary to clarify the standard by bringing within its scope not only motions of the defence to call witnesses capable of influencing the outcome of a trial, but also other witnesses who can reasonably be expected to strengthen the position of the defence” (paragraph 160).

Regarding the second step, the Grand Chamber observed that “the stronger and weightier the arguments advanced by the defence, the closer must be the scrutiny and the more convincing must be the reasoning of the domestic courts if they refuse the defence’s request to examine a witness” (paragraph 166).

Regarding the third step, the Grand Chamber considered that “[w]hile the conclusions under the first two steps of that test would generally be strongly indicative as to whether the proceedings were fair, it cannot be excluded that in certain, admittedly exceptional, cases considerations of fairness might warrant the opposite conclusion” (paragraph 168).

On the facts of the applicant’s case, the Grand Chamber observed, among other things, in relation to each of the three-steps: (i) the defence gave little more than a brief indication of the relevance of B.’s and K.’s potential testimony; its request to summon them did not contain any particular factual or legal arguments and did not elaborate in concrete terms on how their testimony would assist the defence’s case; (ii) having regard to the general passivity of the defence during the examination of the police officers about the events surrounding the alleged planting of the explosives, and the absence of any specific legal or factual arguments as to the necessity of examining the attesting witnesses, the reasons given by the Supreme Court were appropriate in the circumstances of the case and were commensurate with the reasons advanced by the defence; and (iii) there was a considerable body of incriminating evidence against the applicant which she was able to challenge effectively with the benefit of legal representation. The overall fairness of the proceedings had not been undermined.

The Grand Chamber concluded by finding that there had been no breach of Article 6 §§ 1 and 3 (d).

Free assistance of interpreter (Article 6 § 3 (e))

In the Vizgirda v. Slovenia[89] judgment, the Court examined the scope of the rights guaranteed by Article 6 § 3 (a) and (e) and, in particular, the duty to verify the language needs of foreign defendants.

The applicant, a Lithuanian national, was arrested on suspicion of having robbed a bank in Slovenia shortly after his arrival in the country. Following his arrest, he was provided with interpretation into Russian, which is not his native language. The services of the interpreter continued during the investigation phase and trial as well as during his appeal against conviction. The applicant was at all times legally represented, and was assisted by the interpreter when communicating with his lawyer. It was only at the time of his appeal on a point of law and later in his constitutional complaint proceedings that the applicant mentioned that his trial had been unfair because of the difficulties he had experienced in following the proceedings in the Russian language. The complaint was dismissed.

In the Convention proceedings the applicant essentially complained that he was unable to defend himself effectively during the criminal trial because the oral proceedings and the relevant documents were not translated into Lithuanian, his native language, but only into Russian, a language which he had considerable difficulties in understanding. The Court ruled in favour of the applicant and found a breach of Article 6 §§ 1 and 3 of the Convention.

The applicant’s case gave the Court the opportunity to review and develop its previous case-law on the scope of the rights guaranteed by Article 6 § 3 (a) and (e) of the Convention to foreign defendants like the applicant and the nature of the corresponding obligations on the national authorities in this area. Importantly, the Court had regard to other developments in its jurisprudence on the notion of a fair trial in general and referred to relevant instruments adopted by the European Union, notably Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings (“the Directive on Interpretation”) and Directive 2012/13/EU on the right to information in criminal proceedings (“the Right to Information Directive” – for the relevant parts of these Directives, see paragraphs 51-61 of the judgment).

Reviewing precedent in this area (see, among other authorities, Hermi v. Italy[90]; Brozicek v. Italy[91]; Kamasinski v. Austria[92]; Cuscani v. the United Kingdom[93]; and Diallo v. Sweden[94]), the Court noted, among others, the following principles:

(i) an accused who cannot understand or speak the language used in court has the right to the free assistance of an interpreter for the translation or interpretation of all those documents or statements in the proceedings instituted against him which it is necessary for him to understand or to have rendered into the court’s language in order to have the benefit of a fair trial;

(ii) it is incumbent on the authorities involved in the proceedings, in particular the domestic courts, to ascertain whether the fairness of the trial requires, or has required, the appointment of an interpreter to assist the defendant.

The Court further observed (paragraph 81) with regard to the duty to verify or assess a defendant’s linguistic competency that

“… this duty is not confined to situations where the foreign defendant makes an explicit request for interpretation. In view of the prominent place held in a democratic society by the right to a fair trial …, it arises whenever there are reasons to suspect that the defendant is not proficient enough in the language of the proceedings, for example if he or she is neither a national nor a resident of the country in which the proceedings are being conducted. It also arises when a third language is envisaged to be used for the interpretation. In such circumstances, the defendant’s competency in the third language should be ascertained before the decision to use it for the purpose of interpretation is made.”

Interestingly the Court subsequently noted (paragraph 83) in this connection that

“… the fact that the defendant has a basic command of the language of the proceedings or, as may be the case, a third language into which interpretation is readily available, should not by itself bar that individual from benefiting from interpretation into a language he or she understands sufficiently well to exercise fully his or her right to defence.”

It is particularly noteworthy that the Court stressed the importance of:

(i) notifying the suspect, in a language he understands, of his right to interpretation when “charged with a criminal offence” (see, mutatis mutandis, Dvorski v. Croatia[95]; Ibrahim and Others v. the United Kingdom[96]; and Article 3 of the Right to Information Directive) and to note in the record that the suspect has been duly notified;

(ii) noting in the record any procedure used and decision taken with regard to the verification of the suspect’s interpretation needs, as well as the assistance provided by the interpreter.

The main question for the Court in the instant case was whether the applicant was provided with interpretation in a language of which he had a sufficient command for the purposes of his defence and, if not, whether this undermined the fairness of the proceedings as a whole. It found that the Convention had been breached essentially because the Slovenian authorities had operated on the assumption that the applicant could follow the proceedings in Russian. They had not verified his linguistic competence in that language and he had never been consulted on the matter. Although the applicant appeared to have been able to speak and understand some Russian, a fact which he did not deny, the Court did not find it established on the facts that his competency in that language was sufficient to safeguard the fairness of the proceedings.

The judgment is of further interest in view of the Court’s answer to the Government’s objection that the applicant had belatedly complained of being linguistically handicapped during the investigation and trial and had failed to draw attention to his predicament at the appropriate stage of the proceedings. It was important for the Court that there was no indication in the file that the authorities had informed the applicant of his right to interpretation in his native language or of his basic right to interpretation into a language he understood. Among other considerations it noted that under domestic law the applicant was entitled to interpretation in his native language and the authorities were obliged, under domestic procedural law, to inform him of that right and to make a record of such a notification and of the applicant’s response to it.

Other rights in criminal proceedings

No punishment without law (Article 7)

G.I.E.M. S.r.l. and Others v. Italy[97] concerned the confiscation of property in the absence of a criminal conviction and the principle of legality.

The applicants were companies incorporated under Italian law and an Italian citizen, Mr Gironda. Court orders, confiscating their land and buildings, were issued against them on the ground of unlawful development of their land. However, no criminal proceedings for unlawful development had been issued against the directors of G.I.E.M. S.r.l., the other applicant companies had not been parties to the criminal proceedings against their directors and, although Mr Gironda had been a defendant in criminal proceedings, that action had been discontinued as time-barred. The applicants relied on Article 7 of the Convention.

The Grand Chamber found, inter alia, no violation of Article 7 as regards Mr Gironda and a violation of Article 7 as regards the applicant companies.

This judgment mainly concerns the principle of legality in criminal law enshrined in Article 7 and, in particular, an important consequence of that principle, namely, the prohibition on punishing a person where the offence has been committed by another. The case-law significance of this judgment lies in the extent to which it confirms and clarifies the Sud Fondi S.r.l. and Others v. Italy[98] case-law, as well as the later judgment in Varvara v. Italy[99].

Prior to Sud Fondi S.r.l. and Others, the administrative authorities confiscated property developed in breach of planning laws, the stated aim being an administrative restoration of legality rather than punishment. In Sud Fondi S.r.l. and Others the directors of the applicant company had been acquitted but a confiscation order was nevertheless made against the company. In finding a breach of Article 7, the Court found the confiscation to be a criminal sanction so that Article 7 therefore applied. Article 7 required “an intellectual link” disclosing an element of liability in the conduct of the perpetrator of the offence, failing which the penalty (confiscation) was unjustified[100]. In the later Varvara case, the Court found that, since the confiscation had been ordered despite the fact that the criminal offence was time-barred and the applicant’s “criminal liability had not been established in a verdict as to his guilt”, there had been a breach of the principle of legality laid down in Article 7 (cited above, § 72). Questions then arose before the domestic courts as to the meaning of this Convention case-law, and notably whether the Varvara judgment had made confiscations conditional on prior convictions by the criminal courts. The present judgment brings clarity on this and other issues.

(i) In confirming that the confiscation amounted to a penalty, the Grand Chamber reiterated the criteria by which this assessment was to be made: whether the measure is imposed following a decision that a person is guilty of a criminal offence; the nature and purpose of the measure in question; its characterisation under national law; and the procedures involved in the making and implementation of the measure. Importantly, the first criterion was, the Grand Chamber confirmed, merely one of many and not a decisive one and, in any event, it agreed with the finding in the decision in Sud Fondi S.r.l. and Others that the confiscation was connected to a criminal offence based on general legal provisions. Article 7 was therefore applicable.

(ii) On the merits of the Article 7 complaint, the Grand Chamber confirmed that Article 7 precluded any decision to impose those measures on the applicants “in the absence of a mental link disclosing an element of liability in their conduct”, thus sharing the view in the judgment in Sud Fondi S.r.l. and Others (cited above, §§ 111-16).

As to whether this “mental link” was fulfilled when none of the applicants had been formally convicted, the Grand Chamber clarified the meaning of the Varvara judgment (cited above, §§ 71-72). While (as indicated in Varvara) the requisite declaration of criminal liability is often made in a criminal-court judgment formally convicting the defendant, this was not mandatory. The Varvara judgment did not mean that confiscation measures for unlawful site development had to be accompanied by convictions by the criminal courts. In that sense, Article 7 did not impose the “criminalisation” by States of procedures which, in exercising their discretion, they had not classified as falling strictly within the criminal law, the Grand Chamber finding support for this in its established case-law to the effect that Article 6 did not preclude a “penalty” being imposed by an administrative authority in the first instance (for example, Öztürk v. Germany[101], and Mamidakis v. Greece[102]). In short, the “mental element” did not require formal criminal convictions.

However, Article 7 required at least a formal declaration of criminal liability in respect of those being punished (the applicants). As to the applicant companies, no proceedings had been taken against them so there had been no such declaration of their liability. The Grand Chamber refused to lift the corporate veil and confirmed that the legal personality of the companies is distinct from that of their directors. Since the principle of legality prohibits the punishment of one party (the applicant companies) for the commission of an act engaging the criminal liability of another party (their directors), the confiscation of the applicant companies’ property violated Article 7 of the Convention.

As to Mr Gironda, although the proceedings against him had been discontinued as statute-barred, all elements of the offence of unlawful site development had been confirmed by the Court of Cassation. Those findings could be regarded as amounting, in substance, to a conviction for the purposes of Article 7, in which case his rights under Article 7 had not been breached. It is interesting to note that the declaration by the Court of Cassation led to no breach of the principle of legality under Article 7 and, at the same time, it was found to breach his right to be presumed innocent as guaranteed by Article 6 § 2 of the Convention.

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28. See also, under Article 6 § 1 (Access to a court) below, Naït-Liman v. Switzerland [GC], no. 51357/07, 15 March 2018.

29. Denisov v. Ukraine [GC], no. 76639/11, 25 September 2018. See also under Article 8 (Private life) below, and Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, 6 November 2018.

30. Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, ECHR 2007-II.

31. Baka v. Hungary [GC], no. 20261/12, 23 June 2016.

32. Oleksandr Volkov v. Ukraine, no. 21722/11, ECHR 2013.

33. Mirovni Inštitut v. Slovenia, no. 32303/13, 13 March 2018.

34. I.T.C. LTD v. Malta (dec.), no. 2629/06, 11 December 2007.

35. Marti AG and Others v. Switzerland (dec.), no. 36308/97, ECHR 2000-VIII.

36. Skyradio AG and Others v. Switzerland (dec.), no. 46841/99, 31 August 2004.

37. S.C. Black Sea Caviar S.R.L. v. Romania (dec.), no. 13013/06, 31 May 2016.

38. Regner v. the Czech Republic [GC], no. 35289/11, 19 September 2017 (extracts).

39. See also, under Article 6 § 1 (Independent and impartial tribunal) below, Mutu and Pechstein v. Switzerland, nos. 40575/10 and 67474/10, 2 October 2018.

40. Naït-Liman v. Switzerland [GC], no. 51357/07, 15 March 2018.

41. An exceptional or residual jurisdiction assumed by a State’s civil courts where proceedings abroad prove impossible or excessively and unreasonably difficult (for the detailed definition, see paragraph 180 of the Grand Chamber judgment).

42. It was not therefore necessary for that court, nor therefore for the Grand Chamber, to examine the question of any possible immunities from jurisdiction (such as in Al-Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001-XI).

43. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984.

44. Arlewin v. Sweden, no. 22302/10, 1 March 2016.

45. Zubac v. Croatia [GC], no. 40160/12, 5 April 2018.

46. Kurşun v. Turkey, no. 22677/10, 30 October 2018. See also under Article 1 of Protocol No. 1 (Positive obligations) below.

47. See also, under Article 6 § 1 (Independent and impartial tribunal) below, Mutu and Pechstein v. Switzerland, nos. 40575/10 and 67474/10, 2 October 2018, as regards the right to be heard in public.

48. Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, 6 November 2018. See also under Article 6 § 1 (Independent and impartial tribunal) and Article 6 § 1 (Right to a fair hearing in criminal proceedings) below, and Denisov v. Ukraine [GC], no. 76639/11, 25 September 2018.

49. Bryan v. the United Kingdom, 22 November 1995, Series A no. 335-A.

50. See also, under Article 6 § 1 (Right to a fair hearing in civil proceedings) above, Denisov v. Ukraine [GC], no. 76639/11, 25 September 2018.

51. Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, 6 November 2018. See also under Article 6 § 1 (Right to a fair hearing in civil proceedings – Fairness of the proceedings) above and Article 6 § 1 (Right to a fair hearing in criminal proceedings – Applicability) below.

52. Oleksandr Volkov v. Ukraine, no. 21722/11, ECHR 2013.

53. Denisov v. Ukraine [GC], no. 76639/11, §§ 68-72, 25 September 2018.

54. Mutu and Pechstein v. Switerland, nos. 40575/10 and 67474/10, 2 October 2018.

55. National Federation of Sportspersons’ Associations and Unions (FNASS) and Others v. France, nos. 48151/11 and 77769/13, 18 January 2018. See also under Article 8 (Private and family life and home) below.

56. Suda v. the Czech Republic, no. 1643/06, 28 October 2010.

57. Tabbane v. Switzerland (dec.), no. 41069/12, 1 March 2016.

58. Suovaniemi and Others v. Finland (dec.), no. 31737/96, 23 February 1999.

59. Eiffage S.A. and Others v. Switzerland (dec.), no. 1742/05, 15 September 2009.

60. Transado-Transportes Fluviais Do Sado S.A. v. Portugal (dec.), no. 35943/02, ECHR 2003-XII.

61. Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, 6 November 2018. See also under Article 6 § 1 (Right to a fair hearing in civil proceedings – Fairness of the proceedings) and Article 6 § 1 (Independent and impartial tribunal) above.

62. Öneryıldız v. Turkey [GC], no. 48939/99, ECHR 2004-XII.

63. Kurić and Others v. Slovenia [GC], no. 26828/06, ECHR 2012 (extracts).

64. Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22.

65. See also, under Article 6 § 3 (c) (Defence through legal assistance) below, Beuze v. Belgium [GC], no. 71409/10, 9 November 2018, and Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, 15 November 2018.

66. Baydar v. the Netherlands, no. 55385/14, 24 April 2018.

67. Ullens de Schooten and Rezabek v. Belgium, nos. 3989/07 and 38353/07, 20 September 2011.

68. Vergauwen and Others v. Belgium (dec.), no. 4832/04, 10 April 2012.

69. Dhahbi v. Italy, no. 17120/09, 8 April 2014.

70. Wnuk v. Poland (dec.), no. 38308/05, 1 September 2009.

71. Gorou v. Greece (no. 2) [GC], no. 12686/03, § 41, 20 March 2009.

72. Talmane v. Latvia, no. 47938/07, § 29, 13 October 2016.

73. G.I.E.M. S.r.l. and Others v. Italy [GC], nos. 1828/06 and 2 others, 28 June 2018. See also under Article 7 of the Convention (No punishment without law) and Article 1 of Protocol No. 1 (Enjoyment of possessions) below.

74. Allen v. the United Kingdom [GC], no. 25424/09, § 127, ECHR 2013.

75. See also, under Article 6 § 3 (e) (Free assistance of interpreter), Vizgirda v. Slovenia, no. 59868/08, 28 August 2018.

76. Correia de Matos v. Portugal [GC], no. 56402/12, 4 April 2018.

77. International Covenant on Civil and Political Rights (ICCPR), 16 December 1966.

78. Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 251, 13 September 2016.

79. Directive 2013/48/EU of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, 22 October 2013.

80. Beuze v. Belgium [GC], no. 71409/10, 9 November 2018.

81. Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, 13 September 2016.

82. Salduz v. Turkey [GC], no. 36391/02, ECHR 2008.

83. Dayanan v. Turkey, no. 7377/03, 13 October 2009.

84. Schmid-Laffer v. Switzerland, no. 41269/08, § 37, 16 June 2015.

85. A.T. v. Luxembourg, no. 30460/13, § 72, 9 April 2015.

86. Saunders v. the United Kingdom, 17 December 1996, § 71, Reports of Judgments and Decisions 1996-VI.

87. Murtazaliyeva v. Russia [GC], no. 36658/05, 18 December 2018.

88. Perna v. Italy [GC], no. 48898/99, ECHR 2003-V.

89. Vizgirda v. Slovenia, no. 59868/08, 28 August 2018.

90. Hermi v. Italy [GC], no. 18114/02, ECHR 2006-XII.

91. Brozicek v. Italy, 19 December 1989, Series A no. 167.

92. Kamasinski v. Austria, 19 December 1989, Series A no. 168.

93. Cuscani v. the United Kingdom, no. 32771/96, 24 September 2002.

94. Diallo v. Sweden (dec.), no. 13205/07, 5 January 2010.

95. Dvorski v. Croatia [GC], no. 25703/11, § 101, ECHR 2015.

96. Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 272, 13 September 2016.

97. G.I.E.M. S.r.l. and Others v. Italy [GC], nos. 1828/06 and 2 others, 28 June 2018. See also under Article 6 § 2 of the Convention (Presumption of innocence) above and Article 1 of Protocol No. 1 (Enjoyment of possessions) below.

98. Sud Fondi S.r.l. and Others v. Italy (dec.), no. 75909/01, 30 August 2007, and Sud Fondi S.r.l. and Others v. Italy, no. 75909/01, 20 January 2009.

99. Varvara v. Italy, no. 17475/09, 29 October 2013.

100. In response to the Sud Fondi S.r.l. and Others judgment, the domestic courts altered their case-law: to implement a confiscation measure where the prosecution had become statute-barred, it had to be demonstrated that the offence (material and mental element) had nevertheless been made out and the domestic courts refrained from imposing confiscation on bona fide third parties.

101. Öztürk v. Germany, 21 February 1984, §§ 49 and 56, Series A no. 73.

102. Mamidakis v. Greece, no. 35533/04, § 33, 11 January 2007.

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