Procedural rights / Overview of the Case-law of the ECHR 2017

Last Updated on April 9, 2019 by LawEuro

Overview of the Case-law of the ECHR 2017

Procedural rights

Right to a fair hearing in civil proceedings (Article 6 § 1)
Applicability
Fairness of the proceedings
Right to a fair hearing in criminal proceedings (Article 6 § 1)
Applicability
Fairness of the proceedings
Defence rights (Article 6 § 3)
Defence through legal assistance (Article 6 § 3 (c))
Other rights in criminal proceedings
No punishment without law (Article 7)
Right not to be tried or punished twice: ne bis in idem (Article 4 of Protocol No. 7)
Right to an effective remedy (Article 13)

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

Applicability

The De Tommaso[49] judgment, as noted above, concerned the imposition of preventive measures on an individual considered to be a danger to society.

In 2008 the District Court, considering that the applicant represented a danger to society, imposed special police supervision orders for two years. The decision was overturned on appeal seven months later, the appeal court having found that the applicant had not been a danger to society when the measures were imposed. The applicant did not have a public hearing at which to contest the measure.

The applicant complained, inter alia, under Article 6 of a lack of a fair and public hearing. The Government submitted a unilateral declaration accepting a violation of Article 6 as regards the lack of a public hearing. The Grand Chamber found that Article 6 applied and had been violated.

In this connection, the following aspects of the judgment warrant mention.

(i) This was the first time that the Court found the civil limb of Article 6 applicable to proceedings imposing such preventive measures. Relying on prior cases where the Court had found that restrictions on detainees’ rights, and the possible repercussions of such restrictions, fell within the sphere of “civil rights” (Gülmez v. Turkey[50]; Ganci v. Italy[51]; Musumeci v. Italy[52]; Enea v. Italy[53]; and Stegarescu and Bahrin v. Portugal[54]), the Grand Chamber found that there had been “a shift in its … 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”. Finding that the restrictions examined in those detainee cases resembled the preventive measures in issue in the present case, the Grand Chamber concluded that such measures fell within the sphere of personal rights and were civil in nature so that Article 6 applied to the proceedings imposing those restrictions.

(ii) The Grand Chamber went on to find a violation of Article 6 as regards the lack of a public hearing. It emphasised that the domestic courts had been called upon to assess aspects such as the applicant’s character, behaviour and dangerousness, all of which were decisive for the imposition of the preventive measures in question.

The Károly Nagy v. Hungary[55] judgment concerned access to the civil courts with a pecuniary claim concerning the applicant’s ecclesiastical service.

The applicant served as a pastor with the Reformed Church of Hungary (“the Church”) until he was suspended in the course of disciplinary proceedings and ultimately dismissed. He then instituted civil proceedings against the Church seeking payment of unpaid salaries stemming from his religious service arguing that his ecclesiastical service was analogous to employment. His claim was discontinued by the domestic courts on the ground that his service was not regulated by civil law but by ecclesiastical law.

The applicant complained that he had been deprived of access to a court in breach of Article 6 § 1 of the Convention. The Chamber found that Article 6 applied. However, the Grand Chamber found that Article 6 did not apply and concluded that the application was incompatible ratione materiae.

The different findings of the Chamber and Grand Chamber can be explained by their divergent views on domestic law. The Grand Chamber, unlike the Chamber, considered the position in domestic law to be sufficiently clear to allow it to conclude that the applicant had no “right” which could be said, even on arguable grounds, to be recognised under domestic law. Article 6 was not therefore applicable so that the application was incompatible ratione materiae with the provisions of the Convention.

In particular, domestic law provided that claims involving internal laws and regulations of a church could not be enforced by State organs and that, if a domestic court established that a dispute concerned an ecclesiastical claim unenforceable by domestic organs, they were required to terminate the proceedings. In addition, a decision of the Hungarian Constitutional Court of 2003 (prior to the applicant’s disciplinary proceedings) had clarified that claims based on ecclesiastical law could not be enforced by domestic courts. The applicant’s appointment letter made it clear that his service was based on ecclesiastical law. Moreover, statutes of the Church provided that ecclesiastical law was to be applicable to the service relationships of pastors and that legal disputes in the sphere of, inter alia, the appointment, remuneration and retirement of pastors fell within the jurisdiction of the ecclesiastical courts. However, the present applicant had brought his claim to the labour and civil courts and each court had discontinued the action on the ground that his claim was governed by ecclesiastical law. This interpretation of the domestic courts not being “arbitrary or manifestly unreasonable”, the Grand Chamber found that the applicant had no “right” which could be said, even on arguable grounds, to be recognised under domestic law.

The Grand Chamber judgment can be read therefore as confirmation of its existing case-law to the effect that Article 6 has no application to substantive limitations on a right existing under domestic law (see Roche v. the United Kingdom[56]; Boulois v. Luxembourg[57]; and, more recently, Lupeni Greek Catholic Parish and Others v. Romania[58]).

In the Regner v. the Czech Republic[59] judgment, Article 6 was applied to civil proceedings challenging the revocation of a security clearance that had prevented the applicant from continuing in a particular role in the Ministry of Defence.

Having rehearsed in some detail the applicable case-law and principles concerning the application of Article 6 to civil servant employment disputes, the Court identified the “right” in issue as being the right of the applicant to challenge the revocation of his security clearance, which revocation prevented him from continuing in his function of Deputy to the First Vice-Minister. The novel point and one which distinguishes this case from, in particular, Miryana Petrova v. Bulgaria[60], is that the revocation of the security clearance did not lead directly to his dismissal. Rather, the security clearance being a prerequisite for carrying out his functions, its revocation was considered to have had a decisive effect on his personal and professional situation preventing him from carrying out certain duties at the Ministry and adversely affecting his ability to obtain a new post within the State administration. That was considered sufficient for the applicant to claim the existence of a right within the meaning of Article 6 of the Convention.

Thereafter, the Grand Chamber had no difficulty in finding that that right was “civil” in nature. At the time, employment within the State administration was based on the Labour Code which did not contain specific provisions governing the status and functions of State employees: there was no “civil service” as such. Since private-employment disputes are considered to concern “civil” rights, the proceedings challenging the revocation of the security clearance were considered to affect the applicant’s “civil” rights. In any event, the Grand Chamber applied the Vilho Eskelinen criteria (Vilho Eskelinen and Others v. Finland[61]) to find that his status in the State administration would not exclude the application of Article 6 of the Convention.

The judgment in Selmani and Others v. the former Yugoslav Republic of Macedonia[62] concerned the forcible removal of the applicant journalists from the press gallery of Parliament and the absence of an oral hearing in their legal challenge to the removal.

The applicants, journalists, were covering a parliamentary debate on the adoption of the State budget when a commotion provoked by a group of members of parliament broke out on the floor of Parliament, thereby triggering the intervention of security staff. The applicants were forcibly removed since the security staff felt that they were at risk. The applicants complained to the Constitutional Court of the circumstances of their removal. The Constitutional Court, without holding an oral hearing, rejected the applicants’ Article 10 based arguments.

In the Convention proceedings the applicants complained under Article 6 of the Convention that the proceedings before the Constitutional Court had been unfair on account of the rejection of their request for an oral hearing. This part of the judgment is of interest in that the Court raised as a preliminary matter – and of its own motion – the issue of the applicability of Article 6. The issue was: did the domestic court determine the applicants’ “civil rights”? The Court found that the domestic law recognised the right of accredited journalists to report from Parliament in the exercise of their right to freedom of expression. That right was of a civil-law nature, since reporting from the press gallery was necessary for the applicants as accredited journalists to exercise their profession and to inform the public about events in Parliament. Article 6 was therefore applicable (see, similarly, Shapovalov v. Ukraine[63]; RTBF v. Belgium[64]; and Kenedi v. Hungary[65]).

The Court found on the merits that there had been a breach of Article 6 § 1, noting among other matters that the Constitutional Court had acted as a court of first and only instance in the applicants’ case and had been required to address issues of both fact and law. Moreover, it had failed to provide reasons for deciding that an oral hearing was not necessary.

Fairness of the proceedings[66]

In the Regner[67] judgment, cited above, Article 6 was applied to civil proceedings challenging the revocation of a security clearance that had prevented the applicant from continuing in a particular role in the Ministry of Defence.

The applicant was employed in the Ministry of Defence and appointed as a Deputy to the First Vice-Minister when his security clearance, a sine qua non for the exercise of his duties, was revoked by the National Security Authority on the basis of information from the intelligence service casting doubt on his suitability for such clearance. Soon thereafter his employment contract was terminated by mutual consent. His proceedings for judicial review of the decision to revoke his security clearance were unsuccessful. During those proceedings the applicant was refused access to the intelligence information on which the revocation decision was based. He was later convicted and sentenced for, inter alia, participation in organised crime as well as for aiding and abetting an abuse of power and influencing public procurement. He complained under Article 6 of his lack of access to the intelligence information during the civil proceedings challenging the revocation of his security clearance.

The Grand Chamber found no violation of Article 6.

The Grand Chamber accepted that the national courts’ access to and review of classified intelligence material could constitute the principal safeguard of the rights of a party to civil proceedings who had had no access to that material.

It noted, in particular, that neither the applicant nor his lawyer had had access to the classified security-service information on which the revocation decision had been based; the defendant Ministry had had access to that information; and, in so far as the revocation decision was based on those documents, the grounds for that decision had not been disclosed to him. Drawing on cases where evidence had been withheld from an applicant on public-interest grounds both in civil (Miryana Petrova v. Bulgaria[68] and Ternovskis v. Latvia[69]) and criminal proceedings (notably, Fitt v. the United Kingdom[70]), the Grand Chamber had regard to the proceedings as a whole (Schatschaschwili v. Germany[71]) to determine whether the restrictions on the adversarial and equality-of-arms principles, as applicable to civil proceedings, were sufficiently counterbalanced by other procedural safeguards.

In finding that there were sufficient safeguards and no violation of Article 6, the Grand Chamber, as noted above, was persuaded by the protection afforded by the national courts’ access to and review of the classified material as well as their review of the decision-making based on that material. Certain aspects were of particular importance: the domestic courts had unlimited access to all the classified documents on which the revocation decision had been based and could have ordered disclosure if they felt classification was not warranted; the domestic courts’ jurisdiction was broader than the items pleaded by the applicant and extended to all the facts of the case so that they could, for example, compensate for any gaps in the defence due to the lack of disclosure; and those courts had the power to review the merits of and quash the revocation decision as arbitrary.

The Grand Chamber’s reasoning does, nevertheless, suggest that the revocation proceedings could have been improved, while respecting the necessary confidentiality: it would have been desirable for the authorities, or at least the Supreme Administrative Court, to have explained to the applicant, even summarily, the substance of the accusations that led to the revocation and the extent of the review carried out by them.

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

Applicability

The Simeonovi v. Bulgaria[72] judgment concerned the right to a lawyer from the moment of arrest and the right to be informed of that defence right.

The Grand Chamber found no violation of Article 6 §§ 1 and 3 (c) of the Convention.

There was a particular factual context to the case. On the one hand, the applicant had been detained in police custody for three days after his arrest (“the relevant period”) during which time he was neither informed of his right to be represented by a lawyer of his own choosing nor provided with a lawyer. On the other, during that period no statement was taken from him, no evidence capable of being used against him was obtained or included in the case file, and there was no evidence that he had been involved in any investigative measures.

It was necessary to clarify whether the right to a lawyer was triggered from the moment of arrest or from the moment of interrogation. The Grand Chamber reiterated its established case-law (see Ibrahim and Others v. the United Kingdom[73]) that a “criminal charge” existed from the moment an individual was officially notified by the competent authority of an allegation that he had committed a criminal offence, or from the point at which his situation had been substantially affected by actions taken by the authorities as a result of a suspicion against him. It followed that the right to legal assistance became applicable from the moment of the applicant’s arrest and, thus, it applied whether or not the applicant had been interrogated or subjected to any investigative act during the relevant period.

One of the issues in Moreira Ferreira v. Portugal (no. 2)[74] was whether the Court was competent to examine a complaint regarding the refusal by a Supreme Court to reopen criminal proceedings following an earlier finding by the Court of a violation of Article 6. The Court found that it was (see below under Fairness of the proceedings).

Fairness of the proceedings[75]

The Moreira Ferreira (no. 2) judgment, cited above, concerned the competence of the Court to examine a complaint regarding the refusal by a domestic court to reopen criminal proceedings following an earlier finding by the Court of a violation of Article 6.

The applicant’s previous application before the Court (no. 19808/08) had ended with a finding of a violation of Article 6 as she had not been heard in person by the domestic court that had convicted her. Under Article 41 the Court noted that reopening the proceedings represented, in principle, an appropriate means of addressing the violation of Article 6 and, further, that Article 449 of the Code of Criminal Procedure allowed such reopening. When the applicant then applied to reopen those proceedings under Article 449 citing the violation found by the Court, the Supreme Court refused on the basis that the Court’s finding was not incompatible with, and did not give rise to serious doubts about, that conviction. The applicant then complained to the Court under Articles 6 and 46 of the Convention (the present application) of the refusal of the Supreme Court to reopen the proceedings.

The Grand Chamber considered that Article 46 did not preclude it from examining the applicant’s complaint under Article 6 of the Convention. It concluded that, while Article 6 applied to the reopening proceedings before the Supreme Court, there had been no violation of that provision.

In the present case, the Grand Chamber extended the principles adopted in a civil context in Bochan v. Ukraine (no. 2)[76] to the criminal context, emphasising that the rights of persons charged with a criminal offence require greater protection than those of parties to civil proceedings and noting that the Explanatory Memorandum of Recommendation No. R (2000) 2 of the Committee of Ministers states that reopening proceedings would be of particular importance in the field of criminal law.

Three issues had to be examined by the Court.

The first was whether Article 46 of the Convention precluded the Court’s examination under Article 6 and, notably, to what extent the Court’s assessment of the Supreme Court’s refusal to reopen the criminal trial amounted to assessing the adequacy of execution. Relying on the cases of Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2)[77], Egmez v. Cyprus[78] and, notably, Bochan (no. 2), the Court observed that measures taken by a State following a finding of a violation of the Convention (including a domestic rehearing) could give rise to a “new issue” falling to be examined by the Court. In the present case, the Grand Chamber considered that the Supreme Court had dealt with a new issue, namely the compatibility of the applicant’s conviction in the light of the finding of a violation of the right to a fair trial by the Court. It concluded that Article 46 did not preclude the Court from examining a new complaint (regarding the fairness of the proceedings before the Supreme Court) under Article 6 of the Convention.

The next question was whether Article 6 applied to the proceedings to reopen before the Supreme Court. Reiterating again the principles set out in Bochan (no. 2), the Grand Chamber drew on the Court’s case-law on the applicability of Article 6 to review proceedings in a criminal context – notably, to reopening on the grounds of a miscarriage of justice (for example, Lenskaya v. Russia[79]), to review proceedings (Yaremenko v. Ukraine (no. 2)[80]) and to an extraordinary remedy (Meftah and Others v. France[81]) – to find that Article 6 applies in its criminal aspect to remedies classified as extraordinary in domestic law where the domestic court is called upon to “determine the charge”.

Having regard to the nature of the task of the Supreme Court under Article 449 (to compare the conviction with the grounds on which the Court found a violation of Article 6) and having regard to the Supreme Court’s review in the present case (in addition to its role under Article 449, it had also re-examined the merits of the applicant’s complaint concerning her absence from the relevant hearing and the consequences for the validity of her conviction), the Grand Chamber found that the Supreme Court’s scrutiny was such as to amount to “an extension” of the original criminal proceedings and, thus, to the determination of a criminal charge so that Article 6 of the Convention was found to apply to the reopening proceedings before the Supreme Court.

Thirdly, the Grand Chamber went on to examine the merits of the Article 6 § 1 complaint regarding the reasons provided by the Supreme Court for its decision. According to the Court’s established case-law (outlined in Bochan (no. 2)), a judicial decision could not be qualified as arbitrary to the point of undermining the fairness of the proceedings unless no reasons were given or unless the reasons given were based on a manifest factual or legal error of the domestic court resulting in a denial of justice. The Grand Chamber found that neither the Supreme Court’s review of the relevant domestic judgment nor its interpretation of the Court’s 2011 judgment were arbitrary. Interestingly, the Grand Chamber accorded to the Supreme Court a margin of appreciation as regards its interpretation of the Court’s 2011 judgment. While the Supreme Court had inferred from its reading of the 2011 judgment that the Court had “precluded from the outset any possibility that its decision might raise serious doubts about the conviction”, the margin of appreciation meant that the Grand Chamber did not consider it necessary to express a position on the validity of that interpretation.

The Cerovšek and Božičnik v. Slovenia[82] judgment concerned a case in which the reasons for finding the applicants guilty were given by judges who had not participated in their trial.

The applicants were tried and convicted of theft by a single judge. The judge retired from the bench after pronouncing her verdict without however giving written reasons for the applicants’ guilt and sentence. Some three years later, two judges, who had not participated in the trial, drew up written judgments using a reconstitution of the case files as their basis. The applicants’ convictions were upheld on appeal without any direct rehearing of evidence.

In the Convention proceedings the applicants alleged that these facts gave rise to a breach of their right to a fair trial. The Court agreed that there had been a breach of Article 6.

The judgment is noteworthy for the Court’s reiteration in the above context of the importance of a reasoned judgment at the close of a trial and of the principle of immediacy. It stressed that the duty to give reasons, among other things, ensured the proper administration of justice, prevented arbitrariness, contributed to the confidence of the public and the accused in the decision reached, and allowed for possible bias on the part of a judge to be discerned and redressed. These objectives could not be satisfied in the circumstances of the applicants’ case, since the judge who had conducted the trial did not explain her verdict in terms of her assessment of the evidence adduced before her, including the credibility of the oral testimony given by the applicants and witnesses. In answer to the Government’s argument that there were exceptional circumstances that warranted a departure from the standard domestic procedure, namely the trial judge’s retirement, the Court observed (paragraph 44):

“… the date of her retirement must have been known to [the judge] in advance. It should therefore in principle have been possible to take measures either for her to finish the applicants’ cases alone or to involve another judge at an early stage in the proceedings.”

It is interesting to note that the Court took the view that the only way to compensate for the inability of the trial judge to produce reasons justifying the applicants’ conviction would have been to order a retrial.

The Grba v. Croatia[83] judgment concerned the applicant’s participation in multiple illicit transactions with undercover agents.

The applicant was involved in four encounters with undercover police agents during which he sold them a significant quantity of counterfeit euros. In the criminal proceedings the applicant claimed that those transactions were the result of the influence of the undercover agents in inciting him to commit the offences. The domestic court rejected that defence, finding that the undercover agents’ actions had been covered by an investigating judge’s order and that it could not be said that they had allowed the applicant to develop his criminal activity or in any manner incited him to commit an offence.

In the Convention proceedings the applicant maintained that he had been the victim of police entrapment and for that reason his trial had not complied with Article 6 fairness guarantees.

The Court has addressed on several occasions the use of evidence obtained by means of entrapment by an agent provocateur. The relevant principles are well-established (see, most recently, the comprehensive review of the case-law in Matanović v. Croatia[84]). However, this is the first case in which the Court has expressly addressed the question of whether and in what circumstances recourse to a strategy involving the arrangement of multiple illicit transactions with a suspect by the State authorities may run counter to the Article 6 requirements of protection from entrapment and the abuse of powers by the State in the investigation of crime. The Court distilled the following guiding principles from the existing case-law, observing at the outset that recourse to such strategy is a recognised and permissible means of investigating a crime when the criminal activity is not a one-off, isolated criminal incident but a continuing illegal enterprise.

In the first place, in keeping with the general prohibition of entrapment, the actions of undercover agents must seek to investigate ongoing criminal activity in an essentially passive manner and not exert an influence such as to incite the commission of a greater offence than the one the individual was already planning to commit without such incitement.

Secondly, any extension of the investigation must be based on valid reasons, such as the need to ensure sufficient evidence to obtain a conviction, to obtain a greater understanding of the nature and scope of the suspect’s criminal activity, or to uncover a larger criminal circle. In the absence of such reasons, the State authorities may be found to be engaging in activities which improperly enlarge the scope or scale of the crime.

Thirdly, in either of the above situations (improper conduct of undercover agents in one or more multiple illicit transactions or involvement in activities enlarging the scope or scale of the crime) the State authorities might unfairly subject the defendant to increased penalties either within the prescribed range of penalties or for an aggravated offence. Should it be established that this was the case, the relevant inferences in accordance with the Convention must be drawn either with regard to the particular illicit transaction effected by the improper conduct of State authorities or with regard to the arrangement of multiple illicit transactions as a whole.

Fourthly, as a matter of fairness, the sentence imposed should reflect the offence which the defendant was actually planning to commit. Although it would not be unfair to convict the person, it would be unfair for him or her to be punished for that part of the criminal activity that was the result of improper conduct on the part of the State authorities.

On the facts of the applicant’s case, the Court was satisfied that the first illicit transaction between the applicant and the undercover agent was the result of the applicant’s own deliberate conduct and he had not been induced to produce counterfeit money. Furthermore, and again with reference to the facts and the materials available to it, the Court found it impossible to establish with a sufficient degree of certainty whether or not the applicant was the victim of entrapment contrary to Article 6 with regard to his participation in the later transactions (the substantive test of incitement). On that account, it was essential to examine the procedure whereby the applicant’s plea of entrapment, which was arguable, was assessed so as to ensure that the rights of the defence were adequately protected (the procedural test of incitement). The Court’s inquiry into this matter led it to conclude that the domestic courts had failed in their task of verifying that the manner in which the multiple test purchases had been ordered and conducted excluded the possibility of abuse of power, in particular of entrapment in any of the subsequent illegal purchases, or whether the police agents engaged in the activities which might have improperly enlarged the scope of the applicant’s criminal activity. In addition, the Court noted that the domestic courts had based the applicant’s sentence on the continuing criminal activity related to his multiple illicit transactions with the police agents.

The Haarde v. Iceland[85] judgment concerned the fairness of impeachment proceedings.

The applicant was Prime Minister of Iceland between 2006 and 2009. Following the adoption of a resolution by Parliament, the applicant was impeached before the Court of Impeachment on six charges relating to the collapse of the Icelandic banking system in October 2008. The resolution had been preceded by (i) the establishment of a Special Investigation Commission tasked among other things with analysing the causes of the collapse, (ii) the conduct of a fact-finding inquiry by an ad hoc parliamentary review committee (“PRC”), and (iii) the appointment by Parliament of a prosecutor to prepare the case for trial. The applicant was ultimately convicted of only one of the charges, namely failure through gross negligence to hold ministerial meetings on important government matters, as prescribed by Article 17 of the Constitution and section 8c of the Ministerial Accountability Act.

In the Convention proceedings the applicant claimed that the process of deciding whether to bring charges against him, including the PRC’s and Parliament’s examination of and vote on the issue, had been arbitrary and political. He also complained among other things that the PRC and the prosecutor had failed to investigate the case properly to the detriment of the fairness of the proceedings before the Court of Impeachment and that that body had lacked impartiality.

The Court ruled against the applicant. The judgment is of note on account of the context and the manner in which the Court addressed the applicant’s complaint from the standpoint of Article 6. Interestingly, the Court examined the applicant’s complaints without dwelling on the question whether the impeachment proceedings involved the determination of a criminal charge or charges against him (see, for example, Ninn-Hansen v. Denmark[86]). This was not disputed by the Government.

It is also of interest that the Court assessed whether any measures taken by the PRC and the prosecutor during the pre-trial stage of the proceedings “could have weakened his position to such an extent that all subsequent stages of the proceedings were unfair”. It found on the facts and with reference to the conclusions of the Court of Impeachment on the applicant’s allegations of pre-trial unfairness that the pre-trial collection of evidence had not been conducted in a manner prejudicial to the interests of the defence. The Court’s approach to the applicant’s complaints suggests that there may be occasions on which it would be prepared to find that Article 6 had been breached precisely because of a failure on the part of the authorities to comply with the safeguards contained in that Article before a case reaches trial, and irrespective of the overall fairness of the proceedings. As the case-law stands, an exception to the overall-fairness approach has only been applied in the case of confessions obtained as a result of torture or of other ill-treatment in breach of Article 3 (see, for example, Gäfgen v. Germany[87]).

Responding to the applicant’s allegations that the bringing of the impeachment proceedings was political and arbitrary, the Court noted in the light of the comparative information available to it that the Contracting States have adopted different approaches to dealing with the criminal liability of members of the government for acts or omissions that have taken place in the exercise of their official functions. It stressed that its task was confined, whatever the approach chosen at the national level, to reviewing the complaints submitted to it. Significantly, the Court observed as follows (paragraph 85):

“The Court is mindful of the fact that while the purpose of the relevant constitutional, legislative and procedural frameworks on this subject should be to seek a balance between political accountability and criminal liability, and to avoid both the risk of impunity and the risk of ill-founded recourse to criminal proceedings, there may be risks of abuse or dysfunctionalities involved, which must be avoided. The Court is aware of the importance of ensuring that criminal proceedings are not misused for the purpose of harming political opponents or as instruments in political conflict. The Court must therefore bear in mind, when reviewing and assessing the circumstances of each case and the conduct of the proceedings complained of under Article 6, the need to ensure that the necessary standards of fairness are upheld regardless of the special features of those proceedings.”

The Court noted that the fact that the decision to prosecute a member of the government was entrusted to Parliament – and may to some extent involve political or party-political considerations – was not of itself sufficient to raise an issue under Article 6. What was important was the fact that the applicant’s guilt or innocence was determined by a court of law in accordance with the evidence presented and that the process leading to the applicant’s indictment was neither arbitrary nor political to such an extent that the fairness of his trial was prejudiced.

Finally the Court had to address the applicant’s allegation that the eight lay judges of the fifteen-member Court of Impeachment had been appointed by Parliament, effectively the prosecutor in his case, thus undermining its independence and impartiality. It is noteworthy that in rejecting the applicant’s contention the Court had regard to the “special character” of the Court of Impeachment, observing that “[a]lthough political sympathies may still play a part in the process of appointment of lay judges to the Court of Impeachment, [it] does not consider that this alone raises legitimate doubts as to their independence and impartiality”. It was crucial for the Court that the relevant legislation provided guarantees for securing their independence and impartiality and that there was no evidence that the lay judges had by their conduct shown bias or cast doubt on their or the tribunal’s independence.

The Ramda v. France[88] judgment concerned the lack of reasons given for the verdict of a jury formed of professional judges.

The applicant, an Algerian national, was extradited from the United Kingdom to France on charges related to a series of terrorist attacks in 1995 in France. He was first tried and convicted by a criminal court (tribunal correctionnel) on charges concerning his participation in a group aimed at preparing terrorist attacks. He was subsequently tried and convicted by an assize court (cour d’assises) on charges of complicity to commit a series of particular crimes, such as murder and attempted murder. The assize court was “specially constituted” in that the lay jurors were replaced with professional judges, it being considered that lay persons would be fearful of reprisals if sitting in a terrorism case.

The Chamber found that there had been no violation of Article 6 as regards the lack of reasons given by the jury of professional judges of the assize court.

The judgment is of contemporary relevance concerning as it does the prosecution of terrorist offences.

The judgment applies for the first time the Taxquet v. Belgium[89] principles (see, most recently, Lhermitte v. Belgium[90]) to professional judges. The general principle is that reasons should be given by judges for their decisions so the accused and the public can understand the verdict, this being a vital safeguard against arbitrariness which, in turn, fosters public confidence in an objective and transparent justice system. Reasoned decisions are also considered to demonstrate to the defence that it has been heard, contributing thereby to the acceptance of the decision, and the requirement to give reasons obliges judges to base their reasoning on objective arguments (Hadjianastassiou v. Greece[91], and Taxquet). The Taxquet judgment developed an exception to this general principle in order to accommodate legal systems where the criminal courts sit with lay jurors who did not therefore give reasons. Although the present case concerned a jury of professional judges, the Chamber still applied the Taxquet exception.

Although it is an interesting case-law point, it is of historical interest only for France since Law no. 2011/939 of August 2011 now requires a “statement of reasons” for all decisions of the assize court including an assize court specially composed as in the present case. The present case should also be distinguished from those where the jury (lay) was entirely replaced (also to avoid intimidation of lay persons in terrorism cases) by judges sitting on the bench and who therefore give reasons for their judgments (see the “Diplock courts” in McKeown v. the United Kingdom[92], as well as the Special Criminal Court in Donohoe v. Ireland[93] and Heaney and McGuinness v. Ireland[94]).

Defence rights (Article 6 § 3)

Defence through legal assistance (Article 6 § 3 (c))

The Simeonovi[95] judgment, cited above, concerned the right to a lawyer from the moment of arrest and the right to be informed of that defence right.

The applicant was convicted of armed robbery and two murders. He was sentenced to life imprisonment. He complained under Article 6 §§ 1 and 3 (c) that he had not been given access to a lawyer during the first three days of his police custody. During this period, no evidence capable of being used against him had been obtained from him and he did not make a statement. His conviction was based on a later confession (made in the presence of a lawyer of his own choosing) and on additional evidence. He also complained under Article 3 of the conditions of his detention and of the particular prison regime applicable to him as a life prisoner.

The Grand Chamber found a violation of Article 3 and that there had been no violation of Article 6 §§ 1 and 3 (c) of the Convention. A number of points as regards the latter finding are worth noting.

(i) The particular factual context of the present case allowed the Grand Chamber to confirm the scope and application of its judgments in Salduz v. Turkey[96] and Ibrahim and Others v. the United Kingdom[97]. On the one hand, the applicant had been detained in police custody for three days after his arrest (“the relevant period”) during which time he was neither informed of his right to be represented by a lawyer of his own choosing nor provided with a lawyer. On the other, during that period no statement was taken from him, no evidence capable of being used against him was obtained or included in the case file, and there was no evidence that he had been involved in any investigative measures.

(ii) The Grand Chamber considered that the right to legal assistance became applicable from the moment of the applicant’s arrest and thus applied whether or not the applicant had been interrogated or subjected to any investigative act during the relevant period.

(iii) The Grand Chamber confirmed the link between the requirement to notify an accused of his rights and the establishment of any “voluntary, knowing and intelligent” waiver of those rights (Dvorski v. Croatia[98], and Ibrahim and Others[99]). In the present case, the Grand Chamber found that, even supposing that the applicant did not expressly request the assistance of a lawyer during the relevant period (there was a factual dispute), he could not be deemed to have implicitly waived his right to legal assistance, since he had not received, promptly after his arrest, information regarding his right to be represented by a lawyer of his own choosing. The Court could therefore conclude that the applicant’s right to legal assistance had been restricted during the relevant period.

(iv) Consequently, in the instant case, the Grand Chamber had to determine whether, despite this restriction on the applicant’s right to legal assistance, the proceedings complied with Article 6 and, in so doing, the Grand Chamber applied the principles developed by it in its Ibrahim and Others judgment.

Finding that there were no “compelling reasons” for restricting his access to a lawyer during the relevant period (the restriction resulted rather from a general practice of the authorities), the Court had to conduct a “very strict scrutiny” of whether the restriction had “irretrievably prejudice[d] the overall fairness” of the criminal proceedings against the applicant, the Government being required to demonstrate convincingly that he had nonetheless had a fair trial.

In that connection, the Grand Chamber attached decisive importance to the fact that, during the relevant period, no evidence capable of being used against the applicant had been obtained and included in the case file. No statement was taken from him. No evidence indicated that he was involved in any other investigative measures during that period (such as an identification parade) and he did not personally allege before the Court that the domestic courts had possessed evidence obtained during the relevant period and used it against him at the trial. Domestic law excluded evidence obtained in a manner incompatible with the Code of Criminal Procedure and the lack of legal assistance during questioning would have rendered any resulting statement inadmissible. No adverse inferences would have been drawn from the applicant’s silence and there was no causal link even posited between his later confession and the prior absence of a lawyer. He had actively participated in all stages of the criminal proceedings. His conviction was not based exclusively on his later confession but also on a “whole body of consistent evidence”. The case was examined at three instances, all courts giving due consideration to the evidence available.

Given these elements, the Court considered that the Government had provided relevant and sufficient reasons to demonstrate that the overall fairness of the criminal proceedings against the applicant had not been irretrievably prejudiced by the absence of legal assistance for the first three days of his police custody. There had, therefore, been no violation of Article 6 §§ 1 and 3 (c) of the Convention.

The judgment in M v. the Netherlands[100] concerned a complaint under Article 6 §§ 1 and 3 (c) of the Convention regarding restrictions on communications between the applicant and his defence team.

The applicant, a former member of the Netherlands secret service, the AIVD (Algemene Inlichtingen – en Veiligheidsdienst, General Intelligence and Security Service), was charged with having supplied information covered by State secrecy to unauthorised third parties. He was ultimately convicted.

In the Convention proceedings the applicant made a number of complaints concerning the fairness of the domestic proceedings. Of particular interest is his submission that the fairness of the proceedings was compromised on account of the restrictions placed by the prosecution on the scope of his communication with his lawyers during the trial proceedings. The applicant was given to understand by the AIVD that he would not be allowed to disclose information defined by the AIVD itself as secret (such as the names of AIVD members to be called as witnesses) even to his defence lawyers. He was threatened with further prosecution if he did. The applicant contended that there had been a breach of Article 6 §§ 1 and 3 (c), and this notwithstanding an undertaking given by the Advocate-General not to prosecute him for breach of his duty of secrecy if such breach was justified by the rights of the defence.

The Court has already had occasion to underscore in a variety of contexts that the lawyer-client relationship is in principle privileged and that the fundamental rule of respect for lawyer-client confidentiality may only be derogated from in exceptional cases and on condition that adequate and sufficient safeguards against abuse are in place (see, for example, Erdem v. Germany[101]). It is of interest that in the applicant’s case there was no direct or indirect interference with the communication between the applicant and his defence team, for example in the form of surveillance of their discussions or monitoring of their correspondence (compare and contrast S. v. Switzerland[102]; Castravet v. Moldova[103]; and Khodorkovskiy and Lebedev v. Russia[104]). However what was important for the Court was the fact that communication between the applicant and his counsel was not free and unrestricted as to its content, as the requirements of a fair trial normally require. The applicant was at all times exposed to the risk of prosecution were he to divulge State secret information to his lawyers. The Court dismissed the Government’s argument that the Advocate-General’s undertaking referred to above acted as a counterbalancing factor. It observed (paragraph 95):

“This laid upon the applicant the burden to decide, without the benefit of counsel’s advice, whether to disclose facts not already recorded in the case file and in so doing risk further prosecution, the Advocate-General retaining full discretion in the matter.”

It further considered

“that it cannot be expected of a defendant to serious criminal charges to be able, without professional advice, to weigh up the benefits of full disclosure of his case to his lawyer against the risk of prosecution for so doing” (paragraph 96).

In conclusion, the Court found that the fairness of the proceedings was thus irretrievably compromised and for that reason there had been a violation of Article 6 §§ 1 and 3 (c) in this respect.

Other rights in criminal proceedings

No punishment without law (Article 7)

In Koprivnikar v. Slovenia[105] the Court examined whether the domestic courts had complied with the principle of legality when fixing a combined sentence for multiple offences.

The applicant was convicted (in three separate judgments) of three separate offences including murder, the latter offence attracting at the time a maximum sentence of thirty years’ imprisonment. On the basis of its interpretation of the provisions of the 2008 Criminal Code, a sentencing court subsequently imposed an overall or combined sentence of thirty years’ imprisonment on the applicant in respect of all three offences.

In the Convention proceedings, the applicant maintained that the overall sentence imposed breached Article 7 of the Convention given that the 2008 Criminal Code provided for the imposition of a maximum overall penalty of twenty years in a situation such as the applicant’s, and not thirty years as found by the sentencing court.

The Court ruled in favour of the applicant. The judgment is noteworthy in the following respects.

Firstly, the Court observed that the legal provision relied on by the sentencing court provided a deficient legal basis for the determination of the combined sentence in the applicant’s case and allowed for contradictory conclusions to be drawn. This situation contravened the principle of legality and in particular the requirement that a penalty be clearly defined in domestic law. It noted (paragraph 55):

“While, according to the terms of this provision, the applicant should not have had an overall sentence of more than twenty years imposed on him, the overall sentence should exceed each individual sentence, which in the applicant’s case included a term of imprisonment of thirty years … The Court notes that this deficiency resulted from the legislature’s failure to regulate an overall sentence for a situation such as the applicant’s in the 2008 Criminal Code. It moreover notes that the resultant lacuna in the legislation pertained for three years … and that no special reasons have been adduced by the Government to justify it (see, by contrast, Ruban v. Ukraine, no. 8927/11, § 45, 12 July 2016).”

Secondly, the Court considered that the sentencing court should have proceeded on the basis of the interpretation which most favoured the applicant, namely a maximum sentence of twenty years’ imprisonment “which, most importantly, would have complied with the explicitly provided maximum limit on the overall sentence”. The sentencing court had in effect applied a heavier penalty to the applicant’s detriment.

Thirdly, this was the first time the Court found Article 7 – both the notion of “penalty” and the principle of lex mitior – to be applicable to a procedure for the calculation of an overall sentence to replace multiple sentences.

Right not to be tried or punished twice: ne bis in idem (Article 4 of Protocol No. 7)

The Ramda[106] judgment, cited above, concerned the compatibility of successive trials with Article 4 of Protocol No. 7.

The Chamber found that there had been no violation of Article 4 of Protocol No. 7 (the ne bis in idem principle) as regards the successive trials of the applicant.

As regards Article 4 of Protocol No. 7 and the determination of whether the offences in question were the same, the judgment applies the factual approach of Sergey Zolotukhin v. Russia[107], an approach explicitly approved in the later case of A and B v. Norway[108]. That approach provides, in particular, that the question of whether the relevant offences were the same (idem) depends on a facts-based assessment rather than, for example, on a formal assessment comparing the “essential elements” of the offences.

It is further interesting to note that the Court drew on the obligation on the State to prosecute grave (war) crimes developed in Marguš v. Croatia[109], and applied it to the present terrorism context.

Right to an effective remedy (Article 13)

In the Tagayeva and Others[110] judgment, cited above, the Court considered the obligations of the State, as regards a large-scale hostage-taking by terrorists, before, during and after the event.

The case concerned the hostage-taking in a school in Beslan, North Ossetia, from 1 to 3 September 2004, the organisation of the rescue operation, the storming of the school by State forces and the subsequent proceedings. There were hundreds of dead and injured and the applicants (over 400) are next of kin and survivors. They complained under Article 2 alone and in conjunction with Article 13 of the Convention.

In its judgment on the merits, the Court found that there had been a violation of several aspects of Article 2. It found no violation of Article 13.

The judgment is of contemporary relevance as it concerns a comprehensive review of the principles concerning, and the application of, Articles 2 and 13 to a large-scale hostage-taking by terrorists, including to the State’s actions before, during and after the event.

In finding no violation of Article 13, the Court distinguished the procedural obligation to investigate under Article 2 and the requirement to make available other effective domestic remedies under Article 13. The Court identified two elements, compensation and access to information, that were of special importance under Article 13 and, since the applicants had obtained both, this was sufficient for the purposes of Article 13.

Firstly, Article 13 required a compensation mechanism. In the present case, all of the applicants had obtained State and local compensation based on damage suffered regardless of the outcome of the criminal proceedings: this being a “victim based” solution, it was considered justified by the Court. The Court also noted with approval in this context additional commemorative actions benefitting all affected by the events at Beslan (see, in a comparable context, Zuban and Hamidović v. Bosnia and Herzegovina[111]). The awards later made by the Court under Article 41 took into account the compensation awarded at the national level. Secondly, while the facts underlying the violations of Article 2 by the State had not been elucidated in the main and ongoing criminal investigation, the criminal prosecutions of individuals (the surviving terrorist and two police officers) as well as the detailed investigative work of parliamentary commissions, ensured access by the victims and the public to detailed knowledge concerning aspects of the serious human rights violations that would otherwise have remained inaccessible. In that sense, these could be considered relevant aspects of effective remedies to which Article 13 referred, which were aimed at establishing the knowledge necessary to elucidate the facts and which were distinct from the State’s obligations under Article 2 of the Convention.

______________________

49. De Tommaso v. Italy [GC], no. 43395/09, ECHR 2017. See also under Article 5 (Right to liberty and security) above, Article 2 of Protocol No. 4 (Freedom of movement) below and Article 37 (Striking out) below.

50. Gülmez v. Turkey, no. 16330/02, 20 May 2008.

51. Ganci v. Italy, no. 41576/98, ECHR 2003-XI.

52. Musumeci v. Italy, no. 33695/96, 11 January 2005.

53. Enea v. Italy [GC], no. 74912/01, ECHR 2009.

54. Stegarescu and Bahrin v. Portugal, no. 46194/06, 6 April 2010.

55. Károly Nagy v. Hungary [GC], no. 56665/09, ECHR 2017.

56. Roche v. the United Kingdom [GC], no. 32555/96, § 117, ECHR 2005-X.

57. Boulois v. Luxembourg [GC], no. 37575/04, § 91, ECHR 2012.

58. Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 100, ECHR 2016 (extracts).

59. Regner v. the Czech Republic [GC], no. 35289/11, ECHR 2017. See also under Article 6 § 1 (Fairness of the proceedings) below.

60. Miryana Petrova v. Bulgaria, no. 57148/08, 21 July 2016.

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

62. Selmani and Others v. the former Yugoslav Republic of Macedonia, no. 67259/14, 9 February 2017. See also under Article 10 (Freedom of the press) below.

63. Shapovalov v. Ukraine, no. 45835/05, § 49, 31 July 2012.

64. RTBF v. Belgium, no. 50084/06, § 65, ECHR 2011 (extracts).

65. Kenedi v. Hungary, no. 31475/05, § 33, 26 May 2009.

66. See, as regards the lack of a public hearing, De Tommaso v. Italy [GC], no. 43395/09, ECHR 2017, and Selmani and Others v. the former Yugoslav Republic of Macedonia, no. 67259/14, 9 February 2017, both under Article 6 § 1 (Right to a fair hearing in civil proceedings – Applicability) above.

67. Regner v. the Czech Republic [GC], no. 35289/11, ECHR 2017. See also under Article 6 § 1 (Right to a fair hearing in civil proceedings – Applicability) above.

68. Miryana Petrova v. Bulgaria, no. 57148/08, 21 July 2016.

69. Ternovskis v. Latvia, no. 33637/02, 29 April 2014.

70. Fitt v. the United Kingdom [GC], no. 29777/96, ECHR 2000-II.

71. Schatschaschwili v. Germany [GC], no. 9154/10, ECHR 2015.

72. Simeonovi v. Bulgaria [GC], no. 21980/04, 12 May 2017. See also under Article 6 § 3 (c) (Defence through legal assistance) below.

73. Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 249, ECHR 2016.

74. Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, ECHR 2017.

75. See also Simeonovi v. Bulgaria [GC], no. 21980/04, 12 May 2017.

76. Bochan v. Ukraine (no. 2) [GC], no. 22251/08, ECHR 2015.

77. Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, ECHR 2009.

78. Egmez v. Cyprus, no. 30873/96, ECHR 2000-XII.

79. Lenskaya v. Russia, no. 28730/03, §§ 39-40, 29 January 2009.

80. Yaremenko v. Ukraine (no. 2), no. 66338/09, 30 April 2015.

81. Meftah and Others v. France [GC], nos. 32911/96 and 2 others, ECHR 2002-VII.

82. Cerovšek and Božičnik v. Slovenia, nos. 68939/12 and 68949/12, 7 March 2017.

83. Grba v. Croatia, no. 47074/12, 23 November 2017.

84. Matanović v. Croatia, no. 2742/12, §§ 123-24 and 132, 4 April 2017.

85. Haarde v. Iceland, no. 66847/12, 23 November 2017.

86. Ninn-Hansen v. Denmark (dec.), no. 28972/95, ECHR 1999-V.

87. Gäfgen v. Germany [GC], no. 22978/05, § 166, ECHR 2010.

88. Ramda v. France, no. 78477/11, 19 December 2017. See also under Article 4 of Protocol No. 7 (Right not to be tried or punished twice: ne bis in idem) below.

89. Taxquet v. Belgium [GC], no. 926/05, § 90, ECHR 2010.

90. Lhermitte v. Belgium [GC], no. 34238/09, ECHR 2016.

91. Hadjianastassiou v. Greece, 16 December 1992, § 33, Series A no. 252.

92. McKeown v. the United Kingdom, no. 6684/05, 11 January 2011.

93. Donohoe v. Ireland, no. 19165/08, 12 December 2013.

94. Heaney and McGuinness v. Ireland, no. 34720/97, ECHR 2000-XII.

95. Simeonovi v. Bulgaria [GC], no. 21980/04, 12 May 2017. See also under Article 6 § 1 (Right to a fair hearing in criminal proceedings – Applicability) above.

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

97. Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, ECHR 2016.

98. Dvorski v. Croatia [GC], no. 25703/11, ECHR 2015.

99. Ibrahim and Others, cited above, §§ 272-73.

100. M v. the Netherlands, no. 2156/10, ECHR 2017.

101. Erdem v. Germany, no. 38321/97, §§ 65 et seq., ECHR 2001-VII (extracts).

102. S. v. Switzerland, 28 November 1991, § 48, Series A no. 220.

103. Castravet v. Moldova, no. 23393/05, § 51, 13 March 2007.

104. Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 627, 25 July 2013.

105. Koprivnikar v. Slovenia, no. 67503/13, 24 January 2017.

106. Ramda v. France, no. 78477/11, 19 December 2017. See also under Article 6 § 1 (Right to a fair hearing in criminal proceedings – Fairness of the proceedings above.

107. Sergey Zolotukhin v. Russia [GC], no. 14939/03, ECHR 2009.

108. A and B v. Norway [GC], nos. 24130/11 and 29758/11, ECHR 2016.

109. Marguš v. Croatia [GC], no. 4455/10, §§ 127-28, ECHR 2014 (extracts).

110. Tagayeva and Others v. Russia, nos. 26562/07 and 6 others, 13 April 2017. See also under Article 2 (Obligation to protect life) above.

111. Zuban and Hamidović v. Bosnia and Herzegovina (dec.), nos. 7175/06 and 8710/06, 2 September 2014.

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