Chapter 10: ECHR Article 6 & 7

Question 1

Introduction

Answer 1

Article 6 ECHR provides for the ‘right to a fair trial’. It comprises three paragraphs:

Question 2

Article 6(1)

Answer 2

Lays down the basic overarching right to a ‘fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law’. The paragraph covers concepts such as access to justice, impartiality of the courts, and timely and fair legal process.

Question 3

Article 6(2)

Answer 3

Contains the presumption of innocence

Question 4

Article 6(3)

Answer 4

Provides for a set of minimum rights owed to everyone charged with a criminal offence, including the right to access legal representation.

Question 5

Not just under 1 paragraph

Answer 5

It is worth noting that the rights and obligations that the courts have identified as falling under Article 6 do not always fall under just one paragraph. For example, the ‘right to silence’ has been
derived from the courts’ reading of article 6(1) and article 6(2) together. This is discussed below.

Question 6

2 Article 6(1): Scope

Answer 6

Article 6(1) lays down the basic overarching right to a ‘fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law’. This is applicable where either
the applicant’s civil rights and obligations, or criminal charges against that person are being determined.

Question 7

Only refers to hearings

Answer 7

It should be noted that article 6(1) only refers to a ‘hearing’. It may not always involve a ‘trial’ as such. The process in question must involve determination by an ‘independent and impartial
tribunal established by law’ and will not cover other types of decision processes.

Question 8

Bank Mellat v HM Treasury (No 2) [2013] UKSC 39

Answer 8

The House of Lords concluded that article 6
was not engaged where the Treasury had made an order prohibiting anyone from participating in
business with Bank Mellat. While the order did impede the bank’s civil right to carry on its business, it did not amount, in itself, to a determination of that right by a tribunal.

Question 9

2.1 Access to justice: Art 6(1)

Answer 9

Article 6 is arguably the most important right in the Convention because, without access to the
legal system, an individual will not be able to take the action necessary to protect their other rights. The right to a fair trial under article 6(1) thereby necessarily includes a right of access to
the courts. To be meaningful, such a right must constitute effective access to the courts, which
may encompass not only the ability to bring proceedings but also access to professional legal
advice and representation

Question 10

Airey v Ireland (1979-80) 2 EHRR 305

Answer 10

The applicant was the wife of a violent husband who was seeking to apply to the High Court under Irish law for a legal separation. The proceedings were complex, legal aid was not available, and the applicant could not afford to pay a legal representative. The ECtHR found that the applicant had been effectively denied access to a court for the determination of her civil right to pursue legal separation and that this constituted a violation of article 6(1)

Question 11

No right to free legal aid

Answer 11

The court stressed that their decision did not provide for a general right to (free) legal aid. What
constituted effective access to the courts would depend upon the particular facts of each case. In some cases, it might be appropriate for applicants to represent themselves, and it remained the responsibility of contracting states to adopt measures to ensure access. Legal aid was one
measure, but others might include a simplified legal procedure to reduce complexity and costs

Question 12

Benham v UK [1996] 22 EHRR 293

Answer 12

The applicant was imprisoned for non-payment of the community charge (poll tax). He could not afford to pay for his own legal representation, he had no entitlement to (free) legal aid, and the magistrates had declined to use their discretion to
appoint a solicitor.

Question 13

Denied effective access to justice

Answer 13

The ECtHR held that, because he could not access representation, he had been denied effective
access to justice. The ECtHR took into account the severity of the penalty at stake and the complexity of the case. The applicant faced a three-year prison term, and the court found that the relevant law was difficult to understand. There had been a violation of article 6(1), read together with the right to legal representation in article 6(3)(c)

Question 14

R (Gudanaviciene and Others) v Director of Legal Aid Casework and Lord Chancellor [2014]
EWCA Civ 1622

Answer 14

In R (Gudanaviciene and Others) v Director of Legal Aid Casework and Lord Chancellor [2014]
EWCA Civ 1622, some of the claimants were successful in challenging refusals for a form of civil legal aid, known as exceptional case funding (ECF).

Question 15

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Answer 15

Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, applicants relying upon
article 8 ECHR in immigration cases were no longer entitled to legal aid. Instead, they had to
apply for ‘ECF’ which was only available where a failure to provide legally aided services would
be a breach of article 6. The Lord Chancellor’s Guidance stated that ECF should only be granted in ‘rare cases’ and in very limited circumstances’ adding that the threshold for a breach of an applicant’s article 6 rights is ‘very high

Question 16

Court of Appeal was critical of the Guidance

Answer 16

It held that there was no basis in ECHR case
law or article 6 itself, for providing such a high threshold. Instead, the ‘critical question is whether
an unrepresented litigant is able to present his case effectively and without obvious unfairness’.
This will depend on a number of circumstances, notably the difficulty of the legal issues at stake,
the capability of the litigant in person, and the volume of evidence.

Question 17

2.2 Impartiality of courts: Article 6(1)

Answer 17

Article 6(1) provides that the determination of civil rights and obligations or criminal charges must be ‘by an independent and impartial tribunal established by law.’ The requirements for a tribunal to be independent and impartial were summarised by the ECtHR in Findlay v UK (1997) 24 EHRR 221

Question 18

Is the tribunal independent

Answer 18

The Court recalls that in order to establish whether a tribunal can be considered as “independent”, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence […]

Question 19

Question of Impartiality

Answer 19

As to the question of “impartiality”, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect […]

Question 20

Findlay

Answer 20

The ECtHR held that that the British Army’s court martial system breached article 6(1) because of the dominant and pervasive role of the ‘convening officer’ in the overall process. This role involved selection of charges, organisation of the hearing, and appointment of members of the court, as well as prosecuting and defencing officers. The ECtHR therefore concluded that the court-martial was not sufficiently independent of the convening officer’s role

Question 21

McGonnell v UK (2000) 30 EHRR 289

Answer 21

The ECtHR held that there had been a breach of article
6(1) when the Bailiff of the island of Guernsey had participated as a judge in a planning appeal. This was because he had earlier, in an additional role, presided over the adoption by the
Guernsey legislative chamber of the development plan which had subsequently been at issue in the planning appeal.

Question 22

2.3 Timely process: Article 6(1)

Answer 22

Article 6(1) entitles everyone to a fair and public hearing within a reasonable time. In HM Advocate v Watson, Burrows and JK [2002] UKPC D1, Lord Bingham explained the reason behind this
requirement

Question 23

2.3 Timely process: Article 6(1)

Answer 23

The Strasbourg case law makes plain the object of the reasonable time requirement: to ensure
that accused persons do not lie under a charge for too long and that the charge is determined
[…]; to protect a defendant against excessive procedural delays and prevent him remaining too
long in a state of uncertainty about his fate […]; to avoid delays which might jeopardise the
effectiveness and credibility of the administration of justice […]

Question 24

Three areas should be considered in determining the appropriate standard

Answer 24

He held that three areas should be considered in determining the appropriate standard: the
complexity of the case, the conduct of the defendant, and the manner in which the case has been dealt with by the authorities

Question 25

Privy Council

Answer 25

Held that a period of 20 months between the date on which two police officers were charged with perjury and the trial was not excessive, as it was due to the prosecuting authorities conducting a thorough investigation. However, a delay of 27 months, between the date on which a 14-year-old boy had been charged with various sexual offences and the date of his trial, was excessive. The court clearly took into account the age of the boy concerned.

Question 26

3 Fair process in criminal law

Answer 26

In criminal law proceedings, the fairness of an eventual trial may be affected by the whole legal process applying beforehand.

Question 27

Key case: Murray (John) v UK (1996) 22 EHRR 29

Answer 27

In this case the Grand Chamber of the ECtHR held that article 6 may apply to the preliminary investigation conducted by the police, as long as the suspect is eventually charged. (Article 6 will not apply to the preliminary process if there is no charge.) In particular, alongside the general fairness requirement in article 6(1), article 6(3) may be applicable at the preliminary investigation stage where the fairness of the subsequent trial could be prejudiced by an initial failure to comply with the specific rights in article 6(3).

Question 28

Article 6(3)(c)

Answer 28

Which entitles a person ‘to defend himself […] through legal assistance of his own choosing’. In the case itself, the applicant had been denied access to a lawyer for the first 48 hours of his detention following his arrest on suspicion of terrorist-related offences. As a result, he had not been able to benefit from legal advice about the consequences of refusing to answer questions during his police interviews

Question 29

Adverse inferences

Answer 29

The law in Northern Ireland at that stage permitted a trial judge to draw ‘adverse inferences’ from the defendant’s refusal to answer such questions. The applicant had refused to answer any questions during his police interrogation and the judge in his subsequent trial had duly taken this refusal into account in convicting him

Question 30

Paramount Importance to have a fair trial

Answer 30

The Grand Chamber emphasised the paramount importance to the fairness of the trial of the accused person being able to have access to a lawyer at the initial stages of police interrogation when national law allows adverse inferences to be drawn from the failure of that person to answer questions during the police interrogation.

Question 31

Restriction only under a good cause

Answer 31

Although in the course of its judgment, the Grand Chamber in Murray accepted that access to legal advice can be restricted where there is a good cause for doing so, the court held that none of the reasons advanced by the UK Government sufficed to justify the delay in this case. It held that there had been a violation of the right to a fair trial under article 6(1) read in conjunction with the right to legal assistance under article 6(3)(c).

Question 32

Magee v UK (2001) 31 EHRR 35

Answer 32

The applicant was questioned by two rotating teams of detectives for extended periods at regular intervals for more than 48 hours. He was not given access to a lawyer and was kept in solitary confinement during breaks. During that period, he confessed to involvement in a conspiracy to bomb military personnel. The confession was taken into account at his trial in which he was convicted.

Question 33

Intimidating atmosphere

Answer 33

The ECtHR held that he should have been given access to a lawyer as a counterweight to the intimidating atmosphere which was specifically devised to sap his will and make him confess to his interrogators. There had been a violation of article 6(1) read with article 6(3)(c).

Question 34

Brennan v UK (2002) 34 EHRR 18

Answer 34

The ECtHR found that the presence of a police officer within hearing range during the applicant’s first consultation with his solicitor infringed his right to an effective exercise of his defence rights, representing a violation of article 6(1) read in conjunction with article 6(3)(c). It held that the presence of the police officer would have inevitably prevented the applicant from speaking frankly to his solicitor. While access to legal advice may be subject to restrictions for good cause, there was no compelling reason why the police officer should have been present in this instance.

Question 35

4 Right to silence: Articles 6(1) and 6(2)

Answer 35

Article 6 does not expressly refer to a right to silence or a right against self-incrimination. Nevertheless, these rights form an important part of any fair criminal process. Accordingly, the ECtHR affirmed in Funke v France (1993) 16 EHRR 297 that the right to a fair trial under article 6(1) included the right to remain silent and the right not to incriminate oneself.

Question 36

ss 34-37 Criminal Justice and Public Order Act 1994 (CJPOA).

Answer 36

While the right to silence has long been an integral part of the criminal justice systems in the UK, the absolute maintenance of it has proved more controversial. Concerns have long been raised that criminals may be able to rely on this right too easily to avoid conviction in situations in which an innocent person would have been able to explain their conduct. Such concerns led to a change to the law governing the right to silence, first in Northern Ireland in 1988 and then across the whole UK

Question 37

Permits courts to draw adverse inferences

Answer 37

This legislation permits a court to draw adverse inferences from a number of situations when determining whether or not the accused was guilty of a criminal offence. The most notable is when an accused fails to mention, before or when they are charged, a fact or material piece of evidence which they later rely upon in their defence. The overall effect of this is to enable a trial judge or jury to draw adverse inferences from the refusal of the accused to answer questions during police questioning or to give evidence at trial.

Question 38

Murray

Answer 38

The ECtHR acknowledged the importance of the right to silence. However, it also accepted that these rights are not absolute. The accused’s silence could be taken into account where there was other sufficiently strong evidence against him which clearly called for an explanation. In view of the weight of evidence against the applicant, the trial judge was entitled to draw inferences from his refusal to provide an explanation for his presence at the house of the person who was killed. Therefore, there was no violation of article 6 in this respect (although there was under 6(3)(c) – see above).

Question 39

Condron v UK (2001) 31 EHRR 1.

Answer 39

In Condron, the two applicants had been advised by their representative not to answer police questions because at the time, they were in withdrawal from heroin and he considered they were not fit to be interviewed. At trial, the applicants explained their refusal to answer questions on this basis. The judge directed the jury that inferences could be drawn and the jury found them guilty.

Question 40

The ECtHR held that the trial judge’s direction to the jury had been deficient.

Answer 40

The direction left the jury free to draw an adverse inference even where it accepted the defendants’ explanation for their silence. The judge should have told the jury that adverse inferences should only be drawn where the jury was satisfied that the defendants’ silence could only be sensibly attributed to their having no answer to the case put to them by the police. He had not done so, indicating a violation of both article 6(1) and article 6(2).

Question 41

4.1 Self-incrimination

Answer 41

Both Murray and Condron had dealt with cases in which the accused had refused to answer questions. The use of evidence obtained from the accused under legal compulsion was subsequently addressed in the following case.

Question 42

Key case: Saunders v UK (1997) 23 EHRR 213

Answer 42

The applicant had been investigated by government inspectors on suspicion of unlawfully inflating share prices during a corporate take-over. He was interviewed nine times and was compelled to answer the inspectors’ questions, as (under the Companies Act 1985) any refusal to do so was punishable as a contempt of court. The applicant was subsequently tried and convicted of various criminal offences, relating to fraud. Transcripts of his interviews by the inspectors were used as evidence against him at trial.

Question 43

In defiance of the will of the accused

Answer 43

The ECtHR held that the right under article 6 not to incriminate oneself pre-supposes that the prosecution must seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. The applicant in this case had been compelled by law to give evidence which was used against him in his trial. That evidence contained admissions which tended to incriminate him. The use of the Companies Act interviews by the prosecution in his trial had therefore deprived him of a fair trial in violation of article 6(1). (Nothing in Saunders prohibits admitting evidence obtained from a different process, so long as it was not obtained by means of coercion, oppression, or legal compulsion.)

Question 44

5 Admissibility of evidence: Articles 6(1) and 6(3)

Answer 44

Restrictions on the admissibility of evidence in legal proceedings can also violate article 6(1) if they are found to undermine the fairness of a trial. For example, you will recall in R v A (Complainant’s Sexual History) (No 2) [2001] 2 WLR 1546, that the House of Lords declared that s 41(3)(c) of the Youth Justice and Criminal Evidence Act 1999 impeded the accused’s right to a fair trial in violation of article 6(1).

Question 45

Article 6(3)(d)

Answer 45

Provides a right for a person charged with a criminal offence ‘to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’. The application of this right became a matter of controversy in relation to the admissibility of hearsay evidence under chapter 2 of part 11 of the Criminal Justice Act 2003. These provisions permit a statement not made in oral evidence in proceedings to be admissible in certain specific circumstances.

Question 46

5 Admissibility of evidence: Articles 6(1) and 6(3)

Answer 46

For an example of the approach of the ECtHR and the UK domestic courts to this issue, see the proceedings concerning two linked applicants (Al-Khawaja and Tahery v UK (2009) 49 EHRR 1; AlKhawaja and Tahery v UK (2012) 54 EHRR 23). See also the Supreme Court in R v Horncastle [2009] UKSC 14.

Question 47

6 Closed evidence procedures: Article 6(1)

Answer 47

Closed material’ or ‘closed evidence’ procedures involves the withholding from suspects of ‘closed evidence’ where disclosure would not be in the public interest. It also involves the exclusion of the suspect and his legal representative from the ‘closed’ part of the proceedings. Their interests are represented by a ‘special advocate’ who has been security vetted.

Question 48

6 Closed evidence procedures: Article 6(1)

Answer 48

These procedures are contained in legislation concerning immigration cases and national security, and anti-terrorism measures. In Re MB [2007] UKHL 46, the House of Lords held that the involvement of a special advocate was, in principle, capable of assuaging any disadvantage flowing from non-disclosure under the control orders regime, and therefore, in that case, the Home Secretary was not in breach of Article 6(1).

Question 49

A v UK (2009) 49 EHRR 29

Answer 49

The Grand Chamber of the ECtHR considered the use of closed material procedure in relation to the Belmarsh detainees. It held that a suspect must be given sufficient information about the allegations made against them to enable the giving of effective instructions, so that the demands of procedural fairness can be satisfied.

Question 50

7 Extra-territorial application of article 6

Answer 50

While there is no general obligation to impose the standards under article 6 on other states, the ECtHR did accept in Soering v United Kingdom (1989) 11 EHRR 439 that article 6 may prohibit the extradition (or deportation) of a person to another state where that person has suffered or risks suffering a flagrant denial of a fair trial in that state.

Question 51

Othman v UK (2012) 55 EHRR 1.

Answer 51

This principle was applied in the highly contentious case of Othman v UK (2012) 55 EHRR 1. The Home Secretary had sought to deport the applicant, better known as Abu Qatada, to Jordan. The ECtHR held that this would amount to a violation of article 6 because of the real risk that evidence which had been secured through torture would be used against him in the Jordanian criminal justice system. This risk represented a flagrant denial of justice

Question 52

Response to the decision

Answer 52

In response to this decision, the British and Jordanian governments agreed a Mutual Legal Assistance Treaty in 2013 which provided various legal guarantees in relation to criminal matters including safeguards against the use of evidence secured by torture. Othman left voluntarily for Jordan soon after the treaty had been ratified.

Question 53

8. Introduction to Article 7

Answer 53

Article 7 prohibits punishment that is not sanctioned by law. This prohibition is an essential aspect of the rule of law in that it effectively bars the use of arbitrary power in the criminal law context. Contracting states are not permitted to derogate from article 7 (under article 15).

Question 54

Under article 7:

Answer 54

* A 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 that the offence was committed; * Relevant laws must be clearly defined so people know which acts are criminal.

Question 55

Cannot avail from protection in Article 7

Answer 55

It is worth noting that a person cannot avail themselves of the protection in article 7 if they have been convicted of an offence in a domestic court which, although not an offence in the contracting state, was recognised as an offence by international law at the time it was committed. This accommodation is contained in para 7(2) and is intended to capture war crimes, genocide and crimes against humanity

Question 56

Article 7 provides as follows: Article 7: No punishment without law

Answer 56

1. No one shall be held guilty of any criminal offence on account of any act or omissions which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed then the one that was applicable at the time the criminal offence was committed

Question 57

Article 7: No punishment without law

Answer 57

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations

Question 58

8.1 The ‘guilty concept’

Answer 58

Article 7 only applies where an applicant has been ‘held guilty of any criminal offence’. The first part of this requirement is known as the ‘guilty concept’. The article is not engaged where, for example, there is an ongoing prosecution (Lukanov v Bulgaria (1997) 24 EHRR 121), or the case concerns a decision to extradite the applicant rather than a criminal law decision (X v The Netherlands App No. 8978/80).

Question 59

ECtHR has adopted a broad interpretation

Answer 59

In the case of Varvara v Italy [2013] ECHR 1048, a criminal penalty was imposed against the applicant, even though he had not been prosecuted or convicted, because the offence which could have applied to him was time-barred. The ECtHR had to decide whether the imposition of a criminal penalty without a formal charge and conviction amounted to a finding of guilt so as to engage article 7. The court found that it did and that there had been a violation.

Question 60

ECtHR in G.I.E.M. SRL and Others v Italy (Application No. 1828/06)

Answer 60

In this case, the court found that criminal liability does not need to have been determined in a criminal court. Article 7 can apply provided that there has been at least a formal declaration of criminal liability by the contracting state.

Question 61

8.2 ‘Criminal offence’

Answer 61

For article 7 to apply, the guilty finding must concern a ‘criminal offence’.

Question 62

Engel v Netherlands (1976) 1 EHRR 647

Answer 62

A case considered with reference to the assessment of deprivation of liberty under article 5), the ECtHR set out three criteria to assess whether a charge is ‘criminal’ within the meaning of article 6, which the court subsequently found should also apply to the same assessment under article 7 (Brown v UK Application No. 38644/97). The three criteria in Engel concern:

Question 63

Three criteria

Answer 63

* 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

Question 64

Application of a criteria

Answer 64

In applying the criteria in Engel, the ECtHR has found, for instance, that a disciplinary offence made against a student by their university did not qualify as a criminal offence (Monaco v Italy App No. 34376/13, 8 December 2015). Equally, a breach of a military disciplinary measure was not classed as a criminal act for the purpose of either article 7 or article 6 (Celikates and Others v Turkey App No. 45824/99).

Question 65

8.3 ‘Law’

Answer 65

A contracting state may not have violated article 7 if it can demonstrate that the punishment against the person in question was for a criminal offence which at the time the offence was committed, was recognised either by the contracting state’s law or by international law. However, the law in question must fulfil certain requirements which, broadly speaking, correspond with the ECtHR’s approach in other articles, such as the ‘in accordance with a procedure prescribed by law’ requirement in article 5.

Question 66

Notable similarities include that: Legislation or case law

Answer 66

The law in question can be contained in legislation or case law (or non-codified constitutional customs) or a combination of laws. In assessing whether the criminal offence has a legal basis, the court should assess the relevant domestic legal framework ‘as a whole’ (Kafkaris v Cyprus [2008] ECHR 143).

Question 67

Law must be accessible

Answer 67

The law must be accessible (see for example SW v UK [1995] ECHR 52 (22 November 1995))

Question 68

Law must be forseeable

Answer 68

The law must be foreseeable (SW v UK; Del Rio Prada v Spain [2012] ECHR 1899).

Question 69

Retrospective punishment

Answer 69

In SW the applicant complained that his conviction and sentence for rape of his wife constituted retrospective punishment in breach of article 7. He argued that at the time he was convicted, marital rape was not an offence in UK law

Question 70

R v R [1991] UKHL 12

Answer 70

House of Lords had declined to recognise the so called ‘marital immunity’ for rape, based on an 18th century common law ‘principle’. In that case their Lordships held that the word ‘unlawful’ in the definition of rape did not inhibit them from ‘removing a common law fiction which had become anachronistic and offensive’ and from declaring that ‘a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim’

Question 71

Difference between crime committed and decision

Answer 71

SW’s offence had been committed in September 1990, whereas the House of Lords decision in R v R was not delivered until March 1991. SW contended that firstly, the common law principle of marital immunity was still in place when the incident occurred in September 1990, which was affirmed by a series of judgments pre- and post-dating the incident

Question 72

Decisions

Answer 72

Secondly, the trial judge’s decision in R v R was not a binding authority, and the Court of Appeal’s decision had not been published by September 1990; thirdly, the trial judge in his case had clearly and retrospectively applied R v R; and finally, the foreseeability test had not been satisfied because of the manner of the common law development of the law in this area

Question 73

The ECtHR held that there had been no breach of article 7

Answer 73

In essence, it found that the law concerning the criminality of marital rape was sufficiently accessible and foreseeable, notwithstanding that it arose out of the common law, and a change to the common law interpretation of the concept and scope of rape as contained in criminal law statute

Question 74

Court stated that:

Answer 74

The decisions of the Court of Appeal and then the House of Lords did no more than continue a perceptible line of case-law development dismantling the immunity of a husband from prosecution for rape upon his wife […] There was no doubt under the law as it stood on 18 September 1990 that a husband who forcibly had sexual intercourse with his wife could, in various circumstances, be found guilty of rape.

Question 75

Evident evolution

Answer 75

Moreover, there was an evident evolution, which was consistent with the very essence of the offence, of the criminal law through judicial interpretation towards treating such conduct generally as within the scope of the offence of rape. This evolution had reached a stage where judicial recognition of the absence of immunity had become a reasonably foreseeable development of the law

Question 76

8.3.1 International law

Answer 76

As stated above, if a criminal offence was imposed in accordance with international law that was in existence at the time the offence was committed, a state may not fall foul of article 7 even though the offence did not exist in domestic law at that time

Question 77

The ECtHR has found that ‘International law’ refers to:

Answer 77

* International treaties that have been ratified by the contracting state in question (Streletz, Kessler and Krenz v Germany App No. 34044/96). * Customary international law (for the international laws and customs of war (see Kononov v Latvia [2010] ECHR 667; for the concept of ‘crime against humanity’ see Korbely v Hungary [2011] ECHR 2402; for the concept of ‘genocide’ see Vasiliauskas v Lithuania App No. 35343/05).

Question 78

8.4 ‘Penalty’

Answer 78

In addition to prohibiting criminal conviction without law, article 7(1) also prohibits the imposition of ‘a heavier penalty […] than the one that was applicable at the time the criminal offence was committed’. This part of the paragraph has required the ECtHR to clarify what constitutes a ‘penalty’.

Question 79

Courts approach to a penalty

Answer 79

The court’s approach is not to focus upon the description of the penalty in domestic law, but whether the measure in question is, substantively, a ‘penalty’ within the meaning of article 7.

Question 80

Factors that the ECtHR will consider are as follows:

Answer 80

* Was the measure in question imposed following a conviction for a ‘criminal offence’? This is an indicative but not necessarily a decisive factor (G.I.E.M. SRL and Others v Italy). * The nature and aim of the measure: does it have a punitive aim; how is it classified under domestic law; what are the procedures linked to its adoption and execution; and how severe is the measure? (G.I.E.M. SRL and Others; Welch v UK App No. 17440/90)

Question 81

8.5 Procedural law

Answer 81

In Scoppola v Italy (no.2) [2011] ECHR 2417, the ECtHR specified that, in principle, the rule against retroactivity in article 7 does not apply to procedural laws, it only applies to the offence and corresponding penalties

Question 82

Substantive Criminal Law

Answer 82

However, where a domestic law, which is classified as a procedural provision, affects the severity of the penalty, the ECtHR could treat that as ‘substantive criminal law’ so that article 7 applies.

Question 83

9 Summary Article 6(1)

Answer 83

* Article 6(1) provides the basic overarching right to a ‘fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. This is only applicable where either the applicant’s civil rights and obligations or criminal charges are being determined.

Question 84

Article 6(1)

Answer 84

Article 6(1) covers rights including access to justice through legal advice and representation (Airey v Ireland; Gudanaviciene); impartiality of the courts (Findlay v UK); and timely process (Watson).

Question 85

Article 6(2)

Answer 85

Article 6(2) provides for the presumption of innocence (until proven guilty). Read alongside

Question 86

Reading along 6(1)

Answer 86

Read alongside Article 6(1), it provides for the right to silence/ not to incriminate oneself (Saunders v UK).

Question 87

Article 6(3)

Answer 87

Article 6(3) lays down a set of minimum rights owed to everyone charged with a criminal offence, including access to legal representation under article 6(3)(c), and fair legal process more generally (Murray v UK).

Question 88

Article 7(1)

Answer 88

Provides that: ‘no one shall be held guilty of any criminal offence on account of any act or omissions which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed then the one that was applicable at the time the criminal offence was committed’.

Question 89

In considering the ECtHR’s approach to this article, we have considered: What is meant by ‘held guilty’ and the ‘guilty concept

Answer 89

(Varvara v Italy)

Question 90

What constitutes a ‘criminal offence’

Answer 90

(Engel v Netherlands)

Question 91

The requirements for ‘law’

Answer 91

(SW v UK)

Question 92

What constitutes a ‘penalty’

Answer 92

(G.I.E.M. SRL and Others)

Question 93

The status of procedural law

Answer 93

(Scoppola v Italy)