8) ECHR 6 & 7 Flashcards
1
Q
Article 6
A
The right to a fair trial
2
Q
Article 6(1)
A
Basic overarchign right to a =”fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”
3
Q
Article 6(2)
A
Presumption of innocence
4
Q
Article 6(3)
A
Minimum set of rights owed to everyone charged with a criminal offence
* eg access to legal representation
5
Q
Where is the right to silence derived from?
A
Art 6(1) and 6(2) being read together
6
Q
Scope of Art6(1)Scope
A
- Overarching right to fair and public hearing
- Applicable under civil or criminal charges
- Only refers to “hearing”… not always a trial
- Covers tribunal processes only.
Bank Mellat v HM Treasury
7
Q
Bank Mellat v HM Treasury
A
- HoL concluded art 6 was not engaged where the Treasury had made an order prohibiting anyone from participating in business with Bnk Mellat.
- Did impede civil right to carry out business.
- Did not amount to determination of that right by a tribunal.
8
Q
hy i
Why is Article 6 arguably the most important right in the Convention?
A
Without access to the legal system, cannot take necessary action to protect rights.
9
Q
What does “access to the courts” include?
Art 6(1)
A
Effective access
* Ability to bring proceedings
Access legal advice and representation
10
Q
Airey v Ireland
Access to justice
A
- Applicant was the wife of a violent husband. Seeking legal separation.
- Legal aid not available, applicant could not afford to pay a legal rep
- ECtHR - applicant had been effectively denied access = violation of art 6(1).
Access to justice - could not afford
11
Q
Did the decisionin Airey v Ireland amount to the general provision of free legal aid?
A
- No
- Effective access depends on the facts of a particular case.
- May be applicant can represent themselves.
12
Q
Who’s responsibility is it to pursue legal access?
A
- Contracting states to adopt measures to ensure access
- Legal aid was one meausre
- Or maybe simplified legal measures to reduce complexity and costs.
13
Q
Benham v UK
Access to justuce
A
- Applicant was imprisoned for non-payment of poll tax
- Could not afford legal rep
- No entitlement for a solicitor - magistrates had not used their discretion.
= denied effective access to justice] - Took into account the severity of the penalty (3 year prison) at stake, and complexity of the case.
Access to Justice - Violation of 6(1), and 6(3)(c)
14
Q
Gudanaviciene and others
Facts
Access to justuce
A
- Claimants challenged refusals for civil legal aid (Exceptional Case Funding)
- Act meant that immingration cases no longer entitled to legal aid, had to geet ECF
- ECF only available if failure to provide breached art 6 = very rare and high threshold.
Access to Justice
15
Q
Gudanaviciene and others
Held
Access to justice
A
Critical of high threshold - no legal basis.
* Critical Q: “whether an unrepresented litigant is able to present his case effectively without obvious unfairness”
* Depends on: -Legal issuses at stake - capability of litigant - volume of evidence
Access to Justice
16
Q
Key cases relating to the impartiality of courts
A
- Findlay
- McGonnell v UK
17
Q
To establish if a tribunal is independnent and impartial
Findlay v UK
A
Independent: Manner of appointment, term in office, guarantees against outside pressure, appearance of independence.
Impartiality: (1) free of personal prejudice or bias (2) impartial from an objective viewpoint, guarantees to exclude any legitimate doubt
Impartiality of courts - art 6(1)
18
Q
Impartiality
Findlay v UK
A
(1) free of personal prejudice or bias
(2) impartial from an objective viewpoint, guarantees to exclude any legitimate doubt
Impartiality of courts - art 6(1)
19
Q
Independence
Findlay v UK
A
Manner of appointment, term in office, guarantees against outside pressure, appearance of independence.
Impartiality of courts - art 6(1)
20
Q
Findlay v UK
Facts
A
- British Army court martial system breached art 6(1) be
- role of “convening officer”
= selection of charges, organisation of hearing, appointment of members of court and prosecuting / defending officer.
Court martial was not sufficiently independent of Convening Officer’s Role
Impartiality of courts - art 6(1)
21
Q
McGonnell v UK
A
- Bailiff on Gurnsey had participated as a judge in a planning appeal.
- Had presided over the adoption of the Guernsey leg chamber of the development plan- an issue in the planning appeal
= breach of art 6(1)
Impartiality of courts - art 6(1)
22
Q
Timely process (Art 6(1))
A
- Entitled to a fair and public hearing within a reasonable time
HM Advocate v Watson, Burrows and JK
23
Q
HM Advocate v Watson, Burrows and JK
Purpose of timely process
A
- Object of the reasonable time
Ensure accused persons do not lie under charge for too long - Charge determined
- Protect against excessive procedural delays
- Prevent remaining too long in a state of uncertainty.
- Avoid delays which might jeopardise the effectiveness and credibility of the admin of justice.
Timely process (Art 6(1))
24
Q
HM Advocate v Watson, Burrows and JK
Standard for reasonable time
A
The appropriate standard should be determined with consideration of:
- Complexity of the case
- Conduct of the defendant
- Manner in which the case has dealt with by the authorities
Timely process (Art 6(1))
25
Examples of excessive / not excessive time durations
* Held that **20 months between charge and trial was not excessive**, due to prosecuting authorities conducting thorough investigation.
* However **27 months** between date **14 year old** boy was charged with sexual offences and date of trial was excessive. **Court took into account the boy's age**
| Timely process (Art 6(1))
26
Fair legal Process
Not just the trial - the process before hand
**Art 6(1) and 6(3)**
27
What may effect the fairness of a criminal trial?
The whole process before hand!
28
Does Art 6 pply to **preliminary investigations** conducted by the police?
* Yes, if charged
* No, if not charged
**Murray (John) v UK**
* Also where fairness of subsequent trial is prejudiced by an intial failure to comply with specific rights in Art 6(3), eg right to defend himself through legal assistance of his own choosing
| Fair process in criminal trial
29
Art 6(3)(c)
Entitles a person to "defend himself... through legal assistance of his own choosing".
30
Murray v UK
* Murray had been denied access to a lawyer for the first 48 hours of detention.
* Arrested on suspicion of terror offences.
* No legal advice about consequence of refusing to answer during police intervies = **adverse inferences**
* Court emphasised importance to the **fairness of trial**, the **access to a lawyer** at the **initial stages of police interrogation**
* Legal adcvice can be restricted whenthere is good cause to do.
= Violation of 6(1) and 6(3)(c)
| Fair process in criminal trial
31
What are:
6(1)
6(3)(c)
6(1) - Right to a fair trial
6(3)(c)- Right to legal assistance
32
Can legal advice ever be restricted?
Yes
When there is **good cause** to do so.
| Murray v UK
33
Magee v UK
## Footnote
Fair process in criminal trial
* Applicant questioned by two rotating teams for extended periods for more than 48 hours.
* No access to a lawyer, kept in solitary confinement during breaks.
* Confessed to involvement in conspiracy to bomb military personnel. Used as evidence at trial.
* **ECtHR** found that should have had access to lawyer to balance **intimidating atmosphere** devised to sap will and make him confess
= Violation of 6(1) and 6(3)(c)
| Fair process in criminal trial
## Footnote
Right to a fair trial & Right to legal assistance
34
Brennan v UK
## Footnote
Fair process in criminal trial
* Presence of police within hearing range of consultation with solicitor infringed right to exercise defence
* = Violation of 6(1) read in conjunction with 6(3)(c).
* Presence inevitably **prevented speaking frankly to solicitor**
* No compelling reason why police officer should have been present
| Fair process in criminal trial
## Footnote
Right to a fair trial & Right to legal assistance
35
Right to Silence
Right against self-incrimination
* Not expressly referred to in Art 6
* Interpreted in by ECtHR **Funke v France** under Art 6(1) and Art 6(2)
| Fair process in criminal trial
36
s34-37 Criminal Justice and Public Order Act 1994
## Footnote
Right to silence
* Permits a court to **draw adverse inferences** from a number of situations when determining guilt.
* Eg failing to mention when charged something they later rely on in ocurt.
37
Cases relating to right to silence
* Murray
* Condron
* Funke v France
| Art 6(1) and Art 6(2) = right to silence
38
Murray
Right to silence
* No absolute right to silence
* Silence can be taken into account, when there is **sufficiently strong evidence that requires an explanation**.
* drawing inferences for refusing to provide an explanation for presence in house of person that was killed.
| Art 6(1) and Art 6(2) = right to silence
39
Condron
Right to silence
* Two applicants were advised that they did not have to answer police questions by solicitor.
* Withdrawing from heroin, therefore not fit to answer
* Judge directed that inferences could be drawn and gound them guilty.
**ECtHR found this deficient**
| Art 6(1) and Art 6(2) = right to silence
40
When should adverse inferences be drawn?
* When jury was satisfied that the defendant's silence **could only be sensibly** attributed to their having **no answer** to the case put to them by the police.
Violation of Art 6(1) and Art 6(2) in *Condron*.
41
Saunders v UK - self incrimination
* Use of evidence obtained under legal compulsion
* Unlawful inflation of share prices during a corporate take over. Interviewed 9 x and compelled to answer under Companies Act 1985. Refusal was contempt of court.
* Charged with criminal offences relating to fraud.
* Transcripts used as evidence against him at trial.
**Deprived him of fair trail as was compelled by law to give evidence used against him**
**Cannot obtain evidence by means of coercion, oppression or legal compulsion**
| Self incrimination = violation of art 6(1)
42
What evidence cant be used in court?
* Cannot obtain evidence by means of coercion, oppression or legal compulsion
## Footnote
Saunders
43
Admissibility of evidence
* Restrictions on admissability of evidence can be found to undermine the fairness of a trial
**article 6(1) and 6(3)**
44
R v A (Complaintant's Sexual History) No2
???/
s 41(3) of the Youth Justice and Criminal Evidence Act 1999 impeded the accused's rights to a fair trial = violation of article 6(1)
45
Article 6(3)(d)
Right for a person charged with a criminal offence "*to examine and have examined witnesses against him...*."
Application of this right = controversy in relation to admissibility of **heresay** evidence.
Oral evidence is permitted in certain circumstances
**Al-Khawaja and Tahery v UK**
46
Closed Evidence
* Witholding from suspects evidence where disclosure would not be in the public interest.
* Exclusion of the suspect an dhis legal representative from the closed part of the proceedings.
* Representations are made by **"special advocate"** = security vetted.
Legislation concerns **immigration cases, national security and anti-terrorism measures.**
## Footnote
Re MB
47
**Al-Khawaja and Tahery v UK**
https://ukhumanrightsblog.com/2011/12/15/use-of-hearsay-evidence-does-not-automatically-prevent-a-fair-trial-rules-strasbourg/
48
Re MB
HoL held that invovlvement of a special advocate assuaged any disadvantage from non--disclosure.
Not in breach of article 6(1)
| Closed evidence procedures - art 6(1)
49
A v UK
## Footnote
Closed evidence procedures - art 6(1)
* Use of closed material procedure on Belmarsh detainees
Suspect **must be given sufficient info** about allegations made against them
* To enable the effective giving of instructions = procedural fairness
| Closed evidence procedures - art 6(1)
50
Extra territorial application of article 6
**Soering v UK**
Art 6 may prohibit extradition where there are risks of **flagrant denial of fair trial in that state.**
| Extra territorial application of article 6
51
Othman v Uk
## Footnote
Extra territorial application of article 6
* Home Sec sought to deport applicant.
* Real risk that this would amount to violation of Art 6
* Risk = flagrant denial justice - real risk of torture by Jordanian CJS.
* Countries agreed **Mutual Legal Assistance Treaty 2013** = legal guarnatees in relation to criminal matters and safeguards against use of torture evidence
| Extra territorial application of article 6
52
Article 6(1)
* Basic overarching right to a "fair and public hearing within a reasonable time, by an independent and impartial tribunal established by law"
* Only applicable once charged
53
What does Article 6(1) cover
* Rights including access to justice through legal advice and representation **(Airey v Ireland; Guadanaiciene)**
* Impartiality of the courts **(Findlay v UK)**
* Timely process **Watson**
54
What does Article 6(2) cover
* Presumption of innocence until proven guilty
* Read alongside article 6(1), provides right to silence / not to incriminate oneself **Saunders v UK**.
55
What does Article 6(3) cover?
* Minmum set of rights owed to everyone charged with a criminal offence.
* Includes legal representation **article 6(3)(c)**
* Legal process more generally **Murray v UK**
56
What does reading articles 6(1) and 6(2) establish
* A right to silence
* A right against self-incrimination
| Funke v France; Murray v UK; Condron v UK; Saunders v UK
57
In which case did thee court hold that questioning within an intimidating atmosphere and a delay in accessing legal representation was insufficient to engage the protections in article 6.
Circumstances in ***Magee*** did engage article 6 and amounted to a violation of article 6(1) read with article 6(3)(C).
58
Article 7
Prohibits punishment that is not sanction by law
Contracting states are not permitted to derogate from article 7 - Under article 15
59
Why is article 7 an essential aspect of the rule of law?
* Effectively bars the use of arbitrary power in the criminal law context.
60
What is under **Article 7**?
* Person cannot be convicted of a criminal offence for an **act that was not a crime** when it was committed.
* Authorities **cannot impose a more serious punishment** than was available at the time the offence was committed.
* Relevant **laws must be clearly defined** so that people know which acts are criminal
61
Can a person use the defence, if crime committed was not an offence in domestic law, but was in internation law?
**eg capture war crimes, genocide and crimes against humaniity**
* No they cannot gain protection in Article 7
* Accommodation contained in **paragraph 7(2)**
62
Wording of Article 7(1)
* Shall not be held guilty of criminal offence on account of act that **did not constitute an offence** under national or international law at the time it was committed
* **Nor shall a heavier penalty be imposed** than the one that was applicable at the time the criminal offence was committed.
63
Wording of Article 7(2)
* Article shall not prejudice the trial and punishment of any person for any act or omission which **at the time when committed was criminal according to the general principles of law recognised by civillised nations**
64
When does Article 7 apply?
Article 7 only applies where an applicant has been "held guilty" of any criminal offence
**Guilty Concept**
## Footnote
**Lukanov v Bulgaria**
65
Is Article 7 engaged when there is an ongoing prosecution?
No
**Lukanov v Bulgaria**
| Guilty concept
66
Is Article 7 engaged when there is a decision to extradite the applicant rather than a criminal law decision?
No
**X v The Netherlands**
| Guilty concept
67
Has the ECtHR adopted a narrow or broad interpretation of the guilty concept?
* Broad interpretation
* **Varvara v Italy**
| Article 7
68
**Varvara v Italy**
## Footnote
Guilty concept - time disbarred
- criminal penalty was imposed, despite no prosecution or conviction, because offence was **time barred**
* ECtHR had to decide whether the imposition of a criminal penalty without a formal charge and conviction amounted to finding of guilt - **it found that it did**; engaging Art 7
| **Broad interpretation of the guilty concept**
69
G.I.E.M SRL and others v Italy
## Footnote
Held Guilty
* Court found that criminal liability does not need to have been determined in a criminal court.
* Art 7 can apply providing that there has been **a formal declaration of criminal liability by the contracting state**
| Guilty concept
70
For Article 7 to apply, it must concern a ....
For Article 7 to apply, it must concern a **criminal offence**
71
Three criteria to assess whether a charge is criminal
| Applied to article 6 and 7
* Classification of the offence in domestic law
* The very nature of the offence
* The degree of severity of the penalty that the person concerned risks incurring
| Engel v Netherlands
72
Can a disciplinary offence made against a student by their university qualify as a criminal offence?
| art 6 and 7
No
**Monaco v Italy**
| Criminal offence
73
Is a breach of a military disciplinary measure a criminal act?
| art 6 and 7
No
**Celikates and Others v Turkey**
| Criminal offence
74
The "law" for the purposes of Art 7
* Similar to PBL of art 5
* Can be legislation or case law
* Law must be accessible *SW v UK*
* Law must be forseeable *SW v UK*; *Del Rio Prada*
75
Kafkaris v Cyprus
| The "law" for the purposes of Art 7
* Law for the purposes of art 7
* Q contained in **legislation or case law (or non-codified constitutional customs)**
* Criminal offence has a legal basis
**Assess the domestic legal framework "as a whole"**
| The "law" for the purposes of Art 7
76
SW v UK
| Art 7
The law must be **accessible**
| The "law" for the purposes of Art 7
77
Del Rio Prada v Spain
SW v UK
| Art 7
Law must be **forseeable**
| The "law" for the purposes of Art 7
78
What counts as law for the purposes of Art 7
* Legislation
* Case law
* Non codified constitutional customs
* Combination of laws
79
SW v UK
**facts**
* Complained of conviction for rape of his wife = **retrospective punishment**
* Before RvR judgment - argued marital immunity inplace, RvR was non-binding, retrospective so forseeability not satisfied.
| breach of art 7
80
R v R
## Footnote
The "law" for the purposes of Art 7
* Declined to recognise "marital immunity" for rape.
* Rapist = rapist irrespective of relationship
| The "law" for the purposes of Art 7
81
SW v UK
**decision**
## Footnote
The "law" for the purposes of Art 7
* No breach of art 7
* Law concerning the criminality of marital rape was **sufficiently accessible and forseeable**
* Perceptible line of case-law development, dismantling the immunity of husband for prosecution from wife.
**evident evolution** of **reasonably forseeable development of law**
| The "law" for the purposes of Art 7
82
International Law
| Art 7 - principle
* If in international law
* State may not fall foul of art 7
* Even though the offence did not exist in domestic law
| The "law" for the purposes of Art 7
83
International Law - examples
| Art 7 - meaning
* International treaties ratified by contracting state in question **Streletz, Kessler and Krenz v Germany**
* Customary internation law
84
Korbely v Hungary
| Art 7 - Customary international law
Concept of "crime against humanity"
| The "law" for the purposes of Art 7
85
Vasiliauskas v Lithuania
| art 7- Customary international law
For the concept of "genocide"
| The "law" for the purposes of Art 7
86
Kononov v Latvia
| - Customary international law
International laws and customs of war
| The "law" for the purposes of Art 7
87
Penalty
| Art 7(1)
* Prohibits the imposition of "a **heavier penalty**... than the one applicable at the time"
* Courts appraoch is to **question whether substantively a penalty**
88
ECtHR's approach to factors determining a "penalty" within the meaning of Art 7
* Courts appraoch is to **question whether substantively a penalty**
1) Was the measure in question imposed **following a conviction for a "criminal offence"**? Indicative but not decisive
2) **Nature and aim** of the measure = punitive aim; classified under domestic law, procedures linked to adoption and execution; how severe.
| **G.I.E.M SRL and Others;
89
Procedural law
| art 7
In principle the rule against retroactivity, in article 7 **does not apply to procedural laws**.
Only **applies to the offence and corresponding penalites**
| SCOPPOLA v ITALY
90
Where a domestic law, is classified as a procedural provision, affects the severity of the penalty....
... the ECtHR could treat that as **substantive criminal law** so article 7 applies
91
The court takes a broad approach to the "guilty concept"
Varvara v Italy
92
What constitues a criminal offence
1) classificaion of offence in domestic law
2) Very nature of the offence
3) Degree of severity of the penalty that the person concerned risks incurring
| **Engel v Netherlands**
93
Case for the requirements for "law"
| Art 7
SW v UK
94
Case for what constitutes a "penalty"
| Art 7
G.I.E.M SRL and Others
95
Case for the status of procedural law
Scoppola v Italy
96
Varvara v Italy.
The ‘guilty concept’ has been construed broadly by the ECtHR so that, for example, a formal criminal conviction is not always required in order to engage article 7 protection.
97
In which case did the ECtHR hold that in order for article 7 to be engaged the applicant must have been prosecuted and convicted.
Varvara v Italy
court held that article 7 protection applied even where a criminal sanction had been imposed on the applicant without a prosecution or conviction (because the offence which would have applied to him was time-barred in domestic law)
