The right to defence in pre-trial procedures under
the Covenant and under the European Convention
Marco Pedrazzi
1. Introduction.
The pre-trial phase in criminal proceedings is an extremely delicate one, from two points of view. Firstly, pre-trial procedures per se may severely affect the rights and interests of the suspect, or the accused, even more severely than the trial proper: personal or housing search, attachment of assets, ill-treatment by the police, torture, long preventive detention, damage to reputation are only some examples of the legitimate or illegitimate, usual or extreme consequences that pre-trial procedures may produce on the individual. The prejudice may be irreparable, even when a fair trial follows, even when the trial ends up with a total acquittal. Secondly, the pre-trial phase, according to the procedural law of the State concerned, and to the particular circumstances of the case, may have a direct bearing on the trial: it may even determine the issue of the trial, as it happens when the judgment is based on evidence taken before trial. That means that an evaluation of the “fairness” of the trial needs to be based on an examination of the whole of the proceedings, and that the pre-trial procedures play a crucial role in this respect.
It follows from the foregoing that there are at least two reasons to guarantee an effective enjoyment of the right to defence of the suspect, or the accused, during the pre-trial phase: the first is that the individual has to be afforded the possibility of defending himself (or herself) against the above mentioned prejudicial consequences that the preliminary investigations may entail for him (or her), independently of the subsequent conduct and of the exit of the trial. The second is that, if the defence with regard to the criminal charge directed against the accused mainly takes place at the public hearing, the pre-trial phase is necessary, at times essential for its preparation: needless to say that even when the taking of evidence is entirely confined to the hearing, the preparation of the defence has to start before trial.
The pre-trial phase is not as such taken into consideration by the International Covenant on Civil and Political Rights (ICCPR) or by the European Convention on Human Rights (ECHR); but in both treaties, two sets of similar provisions have a direct or indirect bearing on the pre-trial situation, as far as the right to defence is concerned: the provisions concerning the right to liberty and security of persons, with special regard to arrest pending trial and preventive detention, on one side (Art. 9, ICCPR; Art. 5, ECHR); the provisions on fair trial, on the other side (Art. 14, ICCPR; Art. 6, ECHR). In relation to preventive detention, habeas corpus procedures are specifically envisioned by both documents. Fair trial provisions can be relevant in pre-trial situations, whether the suspect or the accused is under custody or detention or not. The jurisprudence of both the Human Rights Committee (HRC) and the European Court have contributed in clarifying the content of the provisions in question and their applicability to the pre-trial phase. There are some differences in the formulation and in the interpretation of the two treaties: the Covenant, as it is read by HRC, appears in some respect to afford a stronger protection to defence rights in the pre-trial phase than the European Convention, as read by the Court. It is true that the Committee has often dealt, more frequently than the Court, with extreme cases of denial of defence rights; but this is only a partial explanation of the differing views. However, and above all, concrete solutions adopted in the two systems are largely convergent.
2. The scope of the fair trial provisions: divergences between ICCPR and ECHR.
A first element which has a certain relevance in determining the extent of defence rights in the pre-trial phase is given by the scope of the fair trial provisions of, respectively, Art. 14, ICCPR, and Art. 6, ECHR. The two articles have a different length, but both contain a first paragraph, enunciating the right to a fair trial[1]; a second paragraph, which proclaims the principle of the presumption of innocence; and a third paragraph, where some specific “minimum guarantees”, or “minimum rights”, are set out to the benefit of individuals “charged with a criminal offence” (Art. 6, ECHR; or “in the determination of any criminal charge against” them, in Art. 14, ICCPR). Art. 14.3, ICCPR, is more detailed than Art. 6.3, ECHR. Anyhow, as underlined by HRC, paragraph 3 of Art. 14, ICCPR, “elaborates on the requirements of a “fair hearing” in regard to the determination of criminal charges”[2]. Similarly, according to the Strasbourg Court, “the guarantees in paragraph 3 of Article 6 … are specific aspects of the right to a fair trial set forth in paragraph 1”[3]. Nonetheless, while the approach of the Committee tends to be that of directly applying Article 14.3 requirements to the whole of the proceedings, including the pre-trial phase[4], according to the European Court “the primary purpose of Article 6 … as far as criminal matters are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge””. The Court specifies that “it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 – may be relevant before a case is sent to trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions”[5]. The difference in the two approaches is subtle, but it might lead in some situations to a better protection under the Covenant.
What is sure is that both provisions apply, as far as criminal proceedings are concerned, only “in the determination of criminal charges”. Here, the concept of “criminal charge” could not be overly formalistic; otherwise States parties could escape too easily from the fair trial requirements, just by postponing the moment of the issue of a formal criminal charge against the suspect. And, in fact, here, the HRC and European Court approaches converge in the identification of a substantial notion of criminal charge, at least for the purposes of “paragraphs 2 and 3 requirements”, even if they are not exempt of ambiguities and inconsistencies. If, for example, the Committee underlines that the right of the accused to be informed of the charge against him arises “when in the course of an investigation a court or an authority of the prosecution decides to take procedural steps against a person suspected of a crime or publicly names him as such”[6], the European Court takes the following position:
“Whilst “charge”, for the purposes of Article 6 § 1 …, may in general be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, it may in some instances take the form of other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect”[7].
Anyway, a brief examination of the solutions given by the two bodies to some of the main right to defence issues arising in the pre-trial phase will permit to better understand the approaches of the two bodies.
3. The right to defence of the suspect (or the accused) under arrest or detention pending trial.
Let us consider, first, the situation of a person under arrest or detention pending trial. It is obvious that the deprivation of liberty is the measure most heavily affecting the rights and interests of the suspect, or the accused, in itself, and for the risk of abuses that it may entail. On one side, the person under pre-trial arrest and detention needs to be put in condition to defend himself against the continued deprivation of his liberty, and against any other measure that may affect him under police custody or during detention. On the other side, he needs to be able to prepare his defence in relation to the criminal charge which has been or will be formulated against him, in view of the trial.
a) Information about the reasons of arrest and the criminal charges.
In order to exercise his right to defence, the suspect or the accused who is arrested shall, first of all, be informed, in a language which he understands, of the reasons for his arrest and of the charges against him. Each of the two treaties contains two provisions which are relevant in the situation. On one hand, Art. 14.3 (a), ICCPR, provides that in the determination of any criminal charge against him, everyone shall be entitled “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him”; Art. 6.3 (a), ECHR, is spelled out in about the same words[8]. The provisions are applicable to every individual under a criminal charge, independently of the fact that he has or has not been deprived of his liberty. On the other hand, Art. 9.2, ICCPR, and Art. 5.2, ECHR, specifically refer to the situation of the individual under arrest. According to Art. 9.2, ICCPR, “he shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him”[9]. Art. 5.2 is a bit less demanding with regard to the time, providing that both kinds of information shall be given promptly[10]. Now, apart from the temporal question, the difference between articles 14.3 (a), ICCPR, and 6.3 (a), ECHR, on one side, and articles 9.2, ICCPR, and 5.2, ECHR, on the other side, is that the first ones require “detailed information” on the charges, while the latter ones merely require “information”. That means that the information given at the moment of arrest (or immediately afterwards) may be more concise than the information required when the criminal charge appears to have been issued. This is confirmed by HRC jurisprudence, when it states that:
“For the purposes of article 14, paragraph 3(a), detailed information about the charges against the accused must not be provided immediately upon arrest, but with the beginning of the preliminary investigation or the setting of some other hearing which gives rise to a clear official suspicion against the accused”[11].
The situation does not seem to be substantially different under the European Convention[12]. What is important is that there is a requirement, under both treaties, that “anyone who is arrested shall be informed sufficiently of the reasons for his arrest to enable him to take immediate steps to secure his release if he believes that the reasons given are invalid or unfounded”[13].
b) Access to a lawyer.
A second fundamental guarantee for any arrested person is given by the possibility of having access to a lawyer. Access to a lawyer is essential under three respects: firstly, a lawyer can help the detainee in challenging before a competent court the legality of his detention; secondly, consultations with the lawyer are necessary for the preparation of the defence for the trial, particularly when evidence is taken during the preliminary investigations; thirdly, contacts with the lawyer are helpful, among other means, in preventing the infliction on the detainee of torture or ill-treatment, which is particularly true if the lawyer is permitted to assist at interrogations, especially by the police. These are the reasons why the need of granting access to legal counsel is particularly insisted upon in the various international standards relating to the treatment of detainees[14].
As far as the Covenant and the European Convention are concerned, Art. 9, ICCPR, and Art. 5, ECHR, do not specifically provide for the access to a lawyer of persons arrested on remand. Both the Committee and the European Court have, however, relied for the purpose on the fair trial provisions of, respectively, Art. 14, ICCPR, and Art. 6, ECHR, although in different ways, and with partly different results. The following minimum guarantees for “everyone charged with a criminal offence”, which are relevant to the present point, are enunciated by both provisions: to have adequate time and facilities for the preparation of his defence (Art. 14.3 (b); Art. 6.3 (b)); to defend himself in person or through legal assistance of his own choosing or, if he does not have sufficient means to pay for it and if the interests of justice so require, to have free legal assistance given to him (Art. 14.3 (d); Art. 6.3 (c)). Only in Art. 14.3 (b), ICCPR, the right “to communicate with counsel of his own choosing” is also specifically mentioned, which can have some bearing on the outcome of the jurisprudence with regard to the pre-trial phase.
As I mentioned before, HRC follows a rather straightforward line of reasoning, tending to interpret Art. 14, ICCPR, as a provision directly applying to the criminal proceedings considered as a whole, the pre-trial phase included. That has an immediate repercussion on the evaluation of the rights of the person arrested on remand. Any kind of incommunicado detention implying the denial of access to a lawyer, be it only for five days, is deemed to be a violation of the right to “communicate with counsel of his own choosing”, enunciated by Art. 14.3 (b)[15]. Obviously, communication with the lawyer shall respect the requirements of confidentiality[16]. The European Court follows a more complex approach, which has been set out in the 1993 Imbrioscia judgment. It may be helpful to reproduce the whole reasoning:
“Certainly the primary purpose of Article 6 … as far as criminal matters are concerned is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, but it does not follow that the Article has no application to pre-trial proceedings. The “reasonable time” mentioned in paragraph 1 …, for instance, begins to run from the moment a “charge” comes into being, within the autonomous, substantive meaning to be given to that term … Other requirements of Article 6 … - especially of paragraph 3 …- may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them … the manner in which Article 6 paras. 1 and 3 (c) … is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case; in order to determine whether the aim of Article 6 … - a fair trial – has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case”[17].
According to this approach, on one hand, in a case where the national legislation permitted to draw adverse inferences from the suspect’s silence at police questioning, and the applicant’s right of access to a lawyer during the first 48 hours of police detention had been restricted, the Court found a violation of Art. 6:
“National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances Article 6 … will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogations. However this right, which is not explicitly set out in the Convention, may be subject to restrictions for good cause. The question, in each case, is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing”; and, after examining the circumstances of the case: “Under such conditions the concept of fairness enshrined in Article 6 … requires that the accused has the benefit of the assistance of a lawyer already at the initial stages of police interrogation. To deny access to a lawyer for the first 48 hours of police questioning, in a situation where the rights of the defence may well be irretrievably prejudiced, is … incompatible with the rights of the accused under Article 6 …”[18].
Similarly, a violation of Art. 6 was ascertained by the Court in the Öcalan case, where the applicant had received no legal assistance for almost seven days, while he was held in police custody and questioned by the security forces, a public prosecutor and a judge of the State Security Court and had “made several self-incriminating statements that were subsequently to become crucial elements of the indictment and the public prosecutor’s submissions and a major contributing factor in his conviction”[19]. On the other hand, no violation was found in a case where the denial of access to a lawyer had lasted 24 hours and during that period the applicant had not made incriminating admissions[20]. In the same case, the Court held that, although the attendance of the suspect’s lawyer at interviews with the police, as well as the recording of those interviews, “provides a safeguard against police misconduct”, “it is not persuaded that these are an indispensable precondition of fairness within the meaning of Article 6 § 1 of the Convention”[21]. It found, however, a violation of Article 6 in the fact that the first consultation with the solicitor was not confidential:
“… the presence of the police officer within hearing during the applicant’s first consultation with his solicitor infringed his right to an effective exercise of his defence rights … there has been, in that respect, a violation of Article 6 § 3 (c) of the Convention taken in conjunction with Article 6 § 1”[22].