1. RIGHT TO A FAIR TRIAL (Article 6 of the ECHR) Elizabeta Ivičević Karas Faculty of Law, University of Zagreb

2. Right to a fair trial (art. 6) 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

3. Right to a fair trial (art. 6) Positive obligations of the state legislationfinances respect of “reasonable time” Negative obligations of the state not to influence the outcome of the procedure Obligations of all other state authorities

4. Right to a fair trial (art. 6) Inspiration found in the Anglo-Saxon legal tradition There is no specific definition Undetermined legal standard – the court specifies its content Basic principles - defined in English and American law

5. Right to a fair trial (art. 6) Autonomous interpretation: Universal meaning of the notion General and particular elements

6. Right to a fair trial (art. 6) “Criminal charge”, Deweer v. Belgium, 1980. “Criminal”, Engel et al. v. Netherlands 1976: 1. the classification of the offence under national law 2. the nature of the offence 3. the nature and degree of severity of the sanction incurred

7. Right to a fair trial (art. 6) Independent and impartial tribunal established by law Independence: lack of subordination to any other organ of the state (executive) Impartiality: the judge is not biased in favour of either party the manner of appointment the term of office safeguards from outside pressure the appearance of independence

8. Right to a fair trial (art. 6) The right to a public hearing protection from “administration of justice in secret without public scrutiny” one of the means whereby confidence in the courts can be maintained limitations: reasons of public order and security

9. Right to a fair trial (art. 6) The right to be tried within a reasonable time, Deweer v. Belgium, 1980. from the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence or if the situation of the suspect has been substantially affected

10. Right to a fair trial (art. 6) The right to be tried within a reasonable time – assessment of the period, Eckle v. Germany, 1982. the conduct of the applicant the importance of the proceedings for the accused the complexity of the case the conduct of the domestic authorities

11. Right to a fair trial (art. 6) Examination of cases in concreto and in globo: Evaluation of facts of the concrete case, and not of the national law, in the light of ECHR Certain violations of the right to a fair trial may be compensated during the proceedings, under the condition that a trial as a whole had been fair

12. Right to a fair trial (art. 6) General elements of the fair trial: 1. The right to adversarial proceedings 2. Equality of arms 3. The right to a reasoned judgment (4. The judgment must not be founded on unlawfully obtained evidence)

13. Adversary principale The right to be heard Prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and evidence adduced by the other party (Kamasinski v. Austria, 1989)

14. Principle of equality of arms The right of the party to take the same actions in the procedure that the opposite party can take Each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-a-vis his opponent

15. Principle of equality of arms Basic aspects: Basic aspects: 1. Right of the parties to access the information 1. Right of the parties to access the information - consultation of the file - consultation of the file 2. Right of the parties to participate in the procedure 2. Right of the parties to participate in the procedure

16. Dolenec v Croatia, 2009. violation of Art. 6-1 taken together with Art. 6-3 the applicant was not able to prepare an adequate defence and was not afforded equality of arms the applicant (in pre-trial detention) did not have unrestricted access to the case file despite his repeated requests the applicant was not been able to contact the counsel assigned to him (by telephone, no answer to his request for his counsel’s visit to the prison)

17. The right to a reasoned judgment Quality of the judgment / decision Informational basis for appeal

18. Presumption of innocence Art. 6-2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

19. Presumption of innocence Two rules: Burden of proof In dubio pro reo

20. Right to silence / Privilege against self-incrimination Nemo tenetur se ipsum accusare Nemo tenetur se ipsum accusare The defendant must not answer the questions nor present his defence

21. Right to silence / Privilege against self-incrimination Derived from Art. 6-1 and 2 It refers to defendant’s verbal statements and not to the material that can be taken independently of the defendant’s will (Saunders v UK, 1996) Materials gained by force and through violation of Art. 3 (Jalloh v. Germany, 2006)

22. Right to silence / Privilege against self-incrimination Police informer in prison cell? Defendant’s personal diary?

23. Right to silence / Privilege against self-incrimination A relative right Drawing of adverse inferences from the accused’s silence is a matter to be determined in the light of all the circumstances of the concrete case ( Condron v. UK, 2000) Drawing inferences against the defendant is not allowed if the defendant provides a satisfactory explanation of his silence

24. Minimum defence rights Art. 6-3 Everyone charged with a criminal offence has the following minimum rights: Everyone charged with a criminal offence has the following minimum rights: a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; b) to have adequate time and facilities for the preparation of his defence; b) to have adequate time and facilities for the preparation of his defence; c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; d) 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; d) 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; e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court. e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

25. Minimum defence rights Compensation of procedural imbalance between: State organs Defendant

26. Minimum defence rights Possible limitations: Protections of certain interests (national security, protection of vulnerable witnesses or undercover police agents, protection of fundamental rights of another person, or protection of public interest) Only if the limitation is absolutely necessary (restrictive interpretation) Adequate compensation of consequences suffered by the defence

27. Minimum defence rights Everyone charged with a criminal offence has the right to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him. Information regarding the facts and legal definition/qualification Information regarding evidence Promptly?

28. Minimum defence rights Everyone charged with a criminal offence has the right to have adequate time and facilities for the preparation of his defence Adequate time? Adequate facilities? (legal assistance)

29. Minimum defence rights Everyone charged with a criminal offence has the right to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. The right to defend oneself The right to the assistance of counsel of one’s own choosing The right to legal aid The right to contact the counsel

30. Hanževački v Croatia, 2009. Violation of Art. 6-1 taken together with Art. 6-3-c) The concluding hearing was held in absence of the applicant’s counsel, although he asked by telephone that the hearing be adjourned on account of his sudden illness Although the applicant informed the court that he did not wish to defend himself in the absence of his counsel, the presiding judge decided to hold a hearing The judgement was pronounced ECtHR: “one of the most important aspects of a concluding hearing in criminal trials was an opportunity for the defence, as well as for the prosecution, to present their closing arguments”.

31. Prežec v Croatia, 2009. Violation of Art. 6-1 taken together with Art. 6-3-c) the applicant wasn’t granted free legal assistance at the trial stage the lawyer assigned to him on appeal had not contacted him

32. Minimum defence rights Everyone charged with a criminal offence has the right 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 right to test witness evidence

33. Kovač v Croatia, 2007. violation of minimum defence right art. 6-3-d): violation of minimum defence right art. 6-3-d): Right to examine the prosecution witness The defendant didn’t have, at any stage of the procedure, an opportunity to examine a witness, whose testimony was the only evidence of the defendant’s guilt and the ground for his conviction At the trial stage, the court briefly examined the witness, in absence of the defendant Since the defendant hasn’t been summoned according to the law to a hearing before the investigating judge, the defendant didn’t have an opportunity to evaluate the witness testimony logically and psychologically

34. Minimum defence rights Everyone charged with a criminal offence has the right to have the free assistance of an interpreter if he cannot understand or speak the language used in court. The right to free assistance of interpreter

35. RIGHT TO A FAIR TRIAL (Article 6 of the ECHR) Elizabeta Ivičević Karas Faculty of Law, University of Zagreb