The ECHR and Criminal Procedure – Article 6

1-2 April 2015

Jahorina, Bosnia Herzegovina

  1. Introduction

On 1 and 2 April 2015 the AIRE Centre in collaboration with the Public Institution Centre for Judicial and Prosecutorial training of the Federation of Bosnia and Herzegovina, with the support of the British embassy in Sarajevo, hosted a seminar for legal advisors and officers on the rules of criminal procedure under Article 6 of the European Convention on Human Rights (ECHR). This event was hosted in Jahorina, Bosnia and Herzegovina.

This seminar is part of a collaborative project to build the capacity of the Court of Bosnia and Herzegovina and the Constitutional Court of Bosnia and Herzegovina by training judicial advisors and officers to both courts on the ECHR.

The aim of this seminar was to bring together international and national experts to share good practice in order to improve the national implementation of the Convention.

  1. Presentations

The seminar was opened by AlmirTabaković, expert advisor for CEST Federation of Bosnia and Herzegovina and Beatrice Blois, Legal Officer for the Rule of Law Programme for the Western Balkans at the AIRE Centre.

Bert Maan, Judge at the Court of Appeal in Amsterdam then followed with two presentations: (1) an overview of the scope of Article 6, key problems and practice in relation to equality of arms and fair trial and reasoned decisions; and (2) the admissibility of evidence in criminal proceedings under Article 6.

Nuala Mole, Senior Lawyer at the AIRE Centre spoke about the presumption of innocence, the right to private life in the criminal justice context, the protection of vulnerable witnesses in criminal proceedings and the rules and regulations of the ICTY vis-à-vis the comparable standards applied by the ECtHR.

  1. Discussion and main conclusions

In assessing what constitutes a criminal charge, the starting point is to look at the domestic legislation, the nature of the offence and the severity of the penalty. If something says that it is criminal, then it should be treated as criminal. The ECtHR has stated:

‘If Contracting States were able at their discretion, by classifying an offence as regulatory instead of criminal, to exclude the operation of…Article 6, the application…would be subordinated to their sovereign will.’

The protections of Article 6 begin when an individual is seriously disadvantaged by an investigation (see Funke v. France, 25 February 1993). Article 6 sets out a number of general principles which seek to ensure that individuals are given a fair hearing.

The principle of equality of arms guarantees that everyone who is party to proceedings has a reasonable opportunity to present their case to the court under conditions, which do not place him or her at a substantial disadvantage vis-à-vis, his or her opponent.

In terms of effective participation, the accused must have a broad understanding of the nature of the trial process including what is at stake and the significance of any penalty (Timergaliyev v. Russia). The accused must be able to follow what is being said and understand the general thrust of the proceedings (Güveç v. Turkey).

The right to a reasoned decision is linked with trust in the judiciary and protecting proceedings from arbitrariness. The judge must be able to verify what they think is true and provide written reasons in relation to the most important parts of the judgment. However, the judge may limit himself or herself to the essential aspects of the arguments (Ruiz Torija v. Spain, 21 January 1999).

In terms of sentencing, courts must have a consistent approach allowing forforeseeability. There should be guidelines for imposing penal sanctions which are then made public. In Tudor v. Romania, the ECtHRstated that the absence of a mechanism which ensures consistency in the practice of national courts can lead to such profound and long-standing differences in the case law that it creates continual uncertainty. This matter relates to public confidence in proceedings.

Admissibility of evidence

Since the protections of Article 6 apply from the investigatory stages, a lousy start is a lousy end. If mistakes are made in the initial stages the investigation will be flawed. Mistakes may occur where houses are searched without sufficient guarantees, phones are tapped without authorisation or an arrest is made under false pretences. Unlawfully gathered evidence cannot be relied upon in court.

  • Saunders v. The United Kingdom (Application No. 19187/81) - The applicant complained that statements made by him under compulsion to Department of Trade inspectors had later been admitted as evidence against him in a criminal trial. Taking the context into account, the Court found that there had been an infringement of the right not to incriminate oneself in violation of Article 6 § 1. The public interest cannot justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during trial proceedings.
  • Ramanauskas v. Lithuania (Application No. 74420/01) - The applicantcomplained that he had been incited to commit a criminal offence by the police, after a police officer had persistently offered him bribes. The Court made clear that the authorities should not cross the line between investigating criminal activity in an ‘essentially passive manner’ to ‘exerting such an influence on the subject as to incite the commission of a criminal offence that would otherwise not have been committed’.

Presumption of innocence

For Article 6(2) to apply the individual concerned must either: have been served with an official document charging them with committing an offence; or have their situation substantially affected by suspicion that they have committed an offence.[1] Therefore, where an individual is suspected of having committed a criminal offence and is taken to a police station,Article 6(2) will apply, even before the formal investigation starts.

In Matijasevic v. Serbia(Application No. 23037/04) a Serbian district court decision expressly stated that the applicant had actually committed the criminal offences for which he had been arrested in a detention hearing while his criminal case was still pending. The Court stated that the presumption of innocence under Article 6(2) would be violated if the court’s reasoning suggested that the court or the official in question regarded the accused as guilty, while a premature expression will inevitably violate Article 6(2).

Special investigative measures

There must be procedural safeguards in relation to the use of special investigative measures. In BiH there are problems with special investigative orders as they are often not properly documented and/or justified. When ordering the use of such measures, it is necessary that their use is sufficiently warranted and likely to progress the investigation in a way that is not otherwise possible.Where evidence has been obtained in violation of Article 8, there is a question of whether the fact that the evidence has been obtained in this way is sufficient to make the trial unfair under Article 6.

Bykov v. Russia (Application No. 4378/09) - The application complained that covert surveillance by the police had involved an unlawful intrusion into his home and that interception of his telephone calls amounted to interference with his private life. The Court held that the legal discretion enjoyed by the authorities in carrying out secret surveillance was too broad and unaccompanied by adequate safeguards against abuse.

The protection of vulnerable witnesses in criminal proceedings

Some of the key ECtHR cases discussed included:

  • Al-Khawaja and Tahery v. The United Kingdom (Application Nos. 26766/05 and 22228/06) - The applicants complained about the fact that their convictions were based on statements from witnesses who could not be cross-examined. The Court found where a conviction is based solely or decisively on statements made out of court, the trial will not automatically be rendered unfair, but that the compatibility of the trial with Article 6 will depend on the existence of sufficient safeguards.
  • Bocos-Cuesta v. The Netherlands (Application No. 54789/00) - The applicant complained about the fact that he had not had the opportunity to cross-examine the four children who statements were used in evidence against him. Since these statements were of vital importance, the Court held that as the applicant had not had any opportunity to put questions to the victims, his rights had not been properly balanced against the interests of the witnesses.

[1] See Dewier v Belgium, (Application no. 6903/75)