1. Human Rights and Access to Justice in the EU, Zagreb, 5-6 February 2019 European Judicial Training Network
Prof. Dr. Danutė Jočienė
Justice of the Constitutional Court of Lithuania
Former Judge of the European Convention on Human Rights ( )

2. Art. 6 of the ECHR:
The purpose of the Convention, which is to protect rights that are practical and effective (see Lisica v. Croatia, no /06, § 60, 25 February 2010).
Fundamental principles of the right to a fair trial:
Access to a court;
Independent and impartial court (judge);
Fair trial;
Public hearing within a reasonable time;
Procedural guarantees in [every] proceedings (Art. 6 § 1);
Procedural guarantees in criminal proceedings (Art. 6 §§ 2,3); etc.

3. by an independent and impartial tribunal established by law.
Art. 6 para 1 of the European Convention on Human Rights (the Convention or the ECHR) – The right to a court (access) and to a fair trial:
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.
Judgment 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 […]

4. Art. 6 para 2, 3 of the ECHR/criminal cases:
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. 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;
(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 […];
(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 speak the language.

5. Art. 6 – very important Article:
Case law of the European Court of Human Rights (ECtHR):
no justification for interpreting Article 6 § 1 restrictively (Perez v. France case [GC], No /99, );
very often invoked by the applicants before the ECtHR from different perspectives (i.e., fair trial requirement, access to a court; defence rights, equality of arms, admission/contestation of an admitted evidence, etc.).

6. Subsidiarity and the Role of the ECtHR:
It is not the European Court‘s function to deal with errors of fact or law allegedly committed by national courts or to substitute their own assessment unless they may have infringed the rights and freedoms protected by the Convention (García Ruiz v. Spain [GC], no /96, §§ 28-29, ECHR 1999-I).
Art. 19 of the ECHR – the unique Role of the Court.

7. The ECtHR is not an appellate court;
The Role of the Court:
The ECtHR is not an appellate court;
Art. 6 does not allow the ECtHR to act as a court of fourth instance; it cannot replace national courts
(Bykov v. Russia [GC], 10/03/ 2009, § 88);
Art. 6 establishes a very strong presumption of facts as found by domestic courts unless the domestic proceedings breached the essence of the Art. 6 of ECHR.

8. Admission of evidence:
General principles: Mantovanelli v. France, No /93, 18/03/1997, § 34:
The admissibility of evidence and the way it should be assessed are primarily matters for regulation by national law and the national courts (Garcia Ruiz v. Spain [GC];
The Convention does not lay down rules on evidence as such...
The Court therefore cannot exclude as a matter of principle and in the abstract that evidence obtained in breach of provisions of domestic law may be admitted.
It is for the national courts to assess the evidence they have obtained and the relevance of any evidence that a party wishes to have produced.

9. Mantovanelli v. France/principles:
33.   [...] one of the elements of a fair hearing under Art. 6-1 is the right to adversarial proceedings;
each party must in principle have the opportunity not only to make known any evidence, but also to have knowledge of and comment on all evidence adduced with a view to influencing the court’s decision (Nideröst-Huber v. Switzerland, judgment 18/02/1997, § 24). 
where an expert has been appointed by a court, the parties must in all instances be able to attend the interviews held by him or to be shown the documents he has taken into account.
What is essential is that the parties should be able to participate properly in the proceedings before the "tribunal" (see, mutatis mutandis, the Kerojärvi v. Finland judgment of 19 July 1995, § 42).
34.   [...] The Court has to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair under Art. 6-1 (see, mutatis mutandis, the Schenk v. Switzerland, judgment 12/07/88, § 46).

10. Admission of evidence – different aspects under Article 6 (and Article 3) of the European Convention on Human Rights (ECHR):
Fairness of the proceedings as whole;
Duties of national courts in admitting evidence;
Disclosure of evidence;
Admission of sole and/or decisive evidence;
Admission of evidence obtained by the police [active] incitement to commit a crime;
Admission of secret evidence;
Admission of evidence obtained in violation of Article 3 of the Convention (prohibition of torture, inhuman and degrating treatment);
Admission of evidence obtained in violation of Article 8 of the Convention (respect for private and family life, home and correspondence).

11. Medical negligence case/death of the applicant‘s husband:
Rinkūnienė v. Lithuania, inadmissible (No /08, 01/12/09)/Assessment of the proceedings as whole:
Medical negligence case/death of the applicant‘s husband:
The applicant complained about the refusal of the domestic courts to order a supplementary expert examination in breach of Art. 6 § 1.
two expert reports were contradictory; a new expert opinion was requested (the third one) into the circumstances of her husband’s death.
The ECtHR: Lithuanian courts based their conclusions on two expert reports and four experts were summoned to courts.
They testified before both the first-instance and appellate courts. The Court does not find that the applicant was placed at a procedural disadvantage vis-à-vis the medical institutions or V.D.S.

12. Rinkūnienė v. Lithuania, inadmissible (No. 55779/08, 1 December 2009):
The assessment of evidence and its probative value are primarily a matter for the domestic authorities:
The Court is not competent to deal with an application alleging that errors of fact or law have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of the rights of the Convention (Erikson v. Italy (dec.), no /97, 26/10/99).
The Court cannot conclude that the Lithuanian courts restricted the applicant’s opportunities to prove her case or that they assessed the evidence before them arbitrarily.
Overall, even if the Court of Appeal’s silence as regards a third expert report could be regarded as a procedural flaw, this aspect alone had NOT reduced the effectiveness of the examination of the doctors’ responsibility...

13. Article 6/ Evidence:
Article 6 of the Convention does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law
(Jalloh v. Germany [GC], no /00, §§ 94-96, ECHR 2006‑IX);
The Role of the ECtHR is to decide whether the proceedings as a whole, including the way in which the evidence was obtained, were fair (assessment of an overall fairness of the proceedings).

14. Equality of arms/adversarial proceedings:
Equality of arms – equal procedural ability to state the case;
Adversarial proceedings – to have an access and a possibility to comment at trial on the observations filed or evidence adduced by the other party;
Both requirements – constituent part of Art. 6 (fair trial).

15. Fair proceedings/use of evidence:
In determining whether the proceedings as a whole were fair, the rights of the defence should be regarded;
also the interests of the public and the victims that crime is properly prosecuted (see Gäfgen v. Germany [GC], no /05, § 175, ECHR 2010) and,
The applicants should have the opportunity of challenging the authenticity of the evidence and of opposing its use (Schenk, Khan cases).

16. Schenk v. Switzerland, Appl. No
Schenk v. Switzerland, Appl. No /84, judgment of 12/07/1988, NO viol. of Art. 6 § 1.
Mr. Schenk‘s claim - making the recording of his telephone conversation with Mr. Pauty and using it as evidence contravened Art. 6 para. 1. The ECtHR/its TEST:
46.   While Article 6 (art. 6) of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law.
The Court therefore cannot exclude as a matter of principle that unlawfully obtained evidence may be admissible.
It has only to ascertain whether trial as a whole was fair.
47.   [...] it notes that the rights of the defence were not disregarded.
The applicant was not unaware that the recording complained of was unlawful because it had not been ordered by the competent judge. He had the opportunity - which he took - of challenging its authenticity and opposing its use.
The fact that his attempts were unsuccessful makes no difference.
Moreover, counsel for the applicant could have examined Mr. Pauty - who had been summoned as a witness - during the trial at the Rolle Criminal Court
48.   the recording of the telephone conversation was not the only evidence on which the conviction was based; a combination of evidential elements was used.

17. Khan v. the UK, appl. No. 35394/97, judgment of 12/05/2000:
The fixing of the listening device and the recording of the applicant's conversation were not unlawful under domestic criminal law.
In addition, as the House of Lords found, the admissions made by the applicant during the conversation with B. were made voluntarily, there being no entrapment;
38. The central question is - whether the proceedings as a whole were fair.
The admission of the contested tape recording - the applicant had ample opportunity to challenge both the authenticity and the use of the recording.
He did not challenge its authenticity, but challenged its use before the Court of Appeal and the House of Lords.
The fact that the applicant was at each step unsuccessful makes no difference.
39. The Court - the domestic courts had had a discretion to exclude such evidence [...]
40. [...] the use of the secretly taped material did not conflict with the requirements of fairness under Art. 6 § 1 of the Convention.

18. Interrelation between different guarantees of Article 6 of the ECHR (see Goran Kovačevič v. Croatia, ECtHR, No /14, 12/04/2018, NO violation of Article 6 §§ 1 and 3 (c)
68. The right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, as guaranteed by Article 6 § 3 (c), is one of the fundamental features of a fair trial (see Simeonovi v. Bulgaria [GC], no /04, § 112, 12 May 2017; Salduz v. Turkey [GC], no /02, § 51, ECHR 2008, and Dvorski v. Croatia [GC], no /11, § 76, ECHR 2015).
69. Like the other guarantees of Article 6, the right to legal assistance is applicable from the moment that a “criminal charge” exists and may be relevant during pre-trial proceedings if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to observe it (Ibrahim and Others v. UK, [GC], nos /08 and 3 others, § , ECHR 2016).

19. Dvorski v. Croatia [GC] - 25703/11, Judgment 20. 10
Dvorski v. Croatia [GC] /11, Judgment [GC], violation of Article 6 §§ 1 and 3 (c) of the Convention  
(c) Whether the fairness of the proceedings as a whole was prejudiced –
Where it was alleged that the appointment or choice of lawyer had influenced the making of an incriminating statement, careful scrutiny by the authorities, notably the national courts, was called for.
the national courts had made no real attempt to provide reasons supporting or justifying their decision;
NO effective opportunity was granted to the applicant to challenge the circumstances in which M.R. was chosen to represent him.
[...] the consequence of the police’s conduct had been that, instead of remaining silent at his first police interview as he was entitled to do, the applicant had made a confession which was later admitted in evidence against him. He had subsequently contested the manner in which that confession had been obtained by the police.
Although there was other evidence against him, the significance of his initial confession could not be ignored.
The national courts did not properly address this issue and, in particular, failed to take adequate remedial measures to ensure fairness.
These factors undermined the applicant’s defence rights and the fairness of the proceedings as a whole.

20. Evidence requirement:
the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy;
where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (Khan, §§ 35 and 37, and Allan, § 43).

21. Lisica v. Croatia (appl. No. 20100/06), judgment of 25/02/2010:
CONVICTION FOR BANK ROBBERY BASED ON EVIDENCE OBTAINED WITHOUT DEFENDANTS’ KNOWLEDGE
Complaint under Article 6 § 1 - the manner in which the evidence was obtained during the criminal proceedings against them had been unfair. 
 Unanimously:
Violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights (Article 41 (just satisfaction) - the applicants jointly awarded EUR 2,000 in respect of non-pecuniary damage).

22. Lisica case: ECtHR arguments:
- it was not its role to determine what types of evidence might be admissible in a trial, BUT
- it examines whether the proceedings at issue had been fair as a whole, including the way the evidence had been obtained.
The rights of the defence - had been respected or NOT– the applicants had a right to contest the disputed evidence; the national courts had considered that objection.
However, it was undisputed that the police had entered the vehicle without any authorisation.
Indeed, during the initial search, the contested item of evidence had not been found.
The explanation given by the national courts that the first search had been superficial was not sufficient in view of the guarantees of a fair trial.
- The minimum requirement of a search - that the defendant be given an adequate opportunity to be present. In the Court’s view there were doubts as to the reliability of the last search’s findings.
 The disputed item obtained during that search, the plastic mould of a car lock, although not the only evidence on which the conviction had been based, had been given significant weight by the national courts.
While it was not the Court’s task to assess whether the applicants’ conviction would have been secured without this item of evidence, it was clear that it had been the only direct link between the vehicle owned by one of the applicants and the vehicle used in the robbery. 

23. Jalloh v. Germany [GC], No. 54810/01, 11/07/2006:
Criminal proceedings - Article 6-1, Fair hearing
Use in evidence of a plastic bag containing drugs obtained by the forcible administration of emetics: violation
Even if it had not been the authorities’ intention to inflict pain and suffering on the applicant, the evidence had been obtained by a measure which breached fundamental rights of the Convention.
Furthermore, the drugs obtained by the impugned measure had proved the decisive element in securing the applicant’s conviction. Lastly, the public interest in securing the applicant’s conviction could not justify using such evidence at the trial.
Accordingly, the use in evidence of the drugs obtained by the forcible administration of emetics to the applicant had rendered his trial as a whole unfair.

24. Disclosure of evidence:
The entitlement to disclosure of relevant evidence is not an absolute right.
in any court proceedings there may be competing interests (i.e., national security, the need to protect witnesses, keep secret police methods of investigation of crime or to safeguard an important public interest, etc.) which must be weighed against the rights of the defence.

25. Disclosure of evidence:
[Some] measures restricting the rights of the defence must be strictly necessary.
[and] must be sufficiently counterbalanced by the procedures followed by the judicial authorities
(Jasper v. the United Kingdom [GC], no. 27052/95, § 52, 16 February Non-disclosure by prosecution of relevant evidence on grounds of public interest immunity: no violation);
see ALSO Regner v. the Czech Republic, GC, No /11, 19/09, 2017, NO violation, discussed later).

26. Cases of Jasper v. the United Kingdom and Fitt v
Cases of Jasper v. the United Kingdom and Fitt v. the United Kingdom, follow-up:
By the time the events relevant to these two applications took place, the law had changed.
Under the new regime, the prosecution were required to make an application to the trial judge for authority not to disclose the evidence in question.
The Court again noted the importance of disclosure of the prosecution case, and the need for any difficulties caused to the defence by limitations on defence rights to be sufficiently counterbalanced by the procedures followed by the judicial authorities.
In each case the defence had been able to outline the defence case to the judge.
The Court found that the defence had been kept informed so far as was possible without revealing the material which the prosecution sought to keep secret on public interest grounds.
Conclusions: no violations (nine votes to eight).

27. Case Pocius v. Lithuania (No
Case Pocius v. Lithuania (No /04, 06/07/2010) (OPPOSITE conclusion in the recent case Regner v. Czech Republic/2017):
“Civil right” aspect under Article 6 of the Convention, VIOLATION of Art. 6 § 1:
The decision-making procedure did not comply with the requirements of adversarial proceedings or equality of arms, and did not incorporate adequate safeguards to protect the applicant […].

28. Case Pocius v. Lithuania:
The applicant’s name had been listed in the operational records file (without the applicant‘s knowledge),
the police urged him to hand in his firearms as his licence to keep firearms was revoked.

29. Case Pocius v. Lithuania:
Complaints:
the restriction on his having access to the operational records file had not been proportionate;
domestic courts had based their decisions on classified information which had not been disclosed to the applicant;
Instead of [a real] evidence, the applicant had been presented with mere assumptions on his danger to the national security [...]

30. Case Pocius v. Lithuania/admission of evidence
The content of the operational file was never disclosed to the applicant;
Lithuanian judges did examine, behind closed doors, the operational records file and relied on it in their decisions;
the applicant had NO possibility to challenge this evidence or to respond to it,
unlike the police who had effectively exercised such rights.

31. Case Pocius v. Lithuania:
53.  [...] where evidence has been withheld from the defence, it is not the role of the European Court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them;
BUT the decision-making procedure should ensure the adversarial proceedings and equality of arms, and incorporate adequate safeguards to protect the interests of the accused.

32. Article 6 §§ 1 and 3 (d) of the Convention involved.
Luca v. Italy case (no /96, § 40, 2001‑II)- balancing of fair trial with the failure to examine key witness [at trial]
The applicant complained that the criminal proceedings against him (possession of cocaine) had been unfair [...] [as] he had been convicted on the basis of statements made to the public prosecutor, without being given an opportunity to examine the maker of the statements, N., or to have him examined at trial.
The main evidence was the statements which N. had made to the public prosecutor.
Article 6 §§ 1 and 3 (d) of the Convention involved.

33. Luca case/correct or false statement?
22. The Court of Cassation observed that Article 6 § 3 (d) of the Convention concerned
“ the examination of witnesses, who are required to tell the truth, not the examination of the accused, who are entitled to defend themselves by remaining silent or even by lying”.
Further, since all States that were party to the Convention had an obligation by relevant domestic legislation to regulate the examination of witnesses, it was “obvious that ... when a witness refused to give evidence, statements made to the public prosecutor ... had to be produced for the court’s file”.

34. Luca v. Italy/ Violation of Art. 6 §§ 1 and 3 (d).
if the defendant has been given an adequate and proper opportunity to challenge the depositions made at investigation stage [...], their admission in evidence will not in itself contravene Art. 6 §§ 1 and 3 (d);
where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted in violation of Art. 6

35. Ramanauskas v. Lithuania [GC] incitement to commit a crime (No
Ramanauskas v. Lithuania [GC] incitement to commit a crime (No /01, judgment of 05/02/2008)
Article 6-1 Fair hearing
Conviction of the offence of bribery incited by the police under the Criminal Conduct Simulation Model: VIOLATION of Article 6-1.
Facts:
The applicant worked as a prosecutor. He submitted that he had been approached through his acquaintance by a person previously unknown to him who was, in fact, an officer from a special anti-corruption police unit.
The officer offered the applicant a bribe of USD 3,000 in return for a promise to obtain a third party’s acquittal.
The applicant had initially refused but later agreed [...]
In January 1999 the Deputy Prosecutor General authorised him to simulate criminal acts of bribery. Shortly afterwards, the applicant accepted the bribe from the officer.
In August 2000 he was convicted of accepting a bribe of USD 2,500 and sentenced to imprisonment.
Law:
The national authorities could not be exempted from responsibility for the actions of police officers simply by arguing that, although carrying out police duties, the officers were acting “in a private capacity”.

36. The applicant’s trial had been deprived of fairness.
Ramanauskas v. Lithuania [GC] – use by national courts of an evidence obtained by the [active] acts of incitement to commit a crime (in principle, sole evidence):
The actions of the officer and the applicant’s acquaintance had gone beyond the mere passive investigation of existing criminal activity:
there was no evidence that the applicant had committed any offences beforehand;
all the meetings between the applicant and the officer had taken place on the latter’s initiative.
Throughout the proceedings, the applicant had maintained that he had been incited to commit the offence.
The domestic authorities and courts should have undertaken a thorough examination of whether the prosecuting authorities had incited the commission of a criminal act.
There was no indication that the offence would have been committed without their intervention.
The applicant’s trial had been deprived of fairness.
Conclusion: violation (unanimously).
Article 41 – EUR 30,000 in respect of all damages.

37. Some „NEW“ tendencies in the case law of the ECtHR:
Regner v. Czech Republic [GC], No /11, 19/09/2017;
Article 6-1: Fair trial/Adversarial trial/Equality of arms -
Lack of access to classified information constituting decisive evidence in judicial-review proceedings:
Article 6 applicable; BUT NO violation.
Establishing of facts – “secret prisons” cases v. Lithuania (Abu Zubaydah v. Lithuania, no /11, 31/05/2018) and Romania (Al Nashiri v. Romania, No /12; 31/05/2018):
ECtHR – was clearly “establishing” facts concerning the presence of secret prisons in the two mentioned countries.

38. Al Nashiri v. Romania, Abu Zubaydah v. Lithuania:
Al Nashiri v. Romania /12; Judgment [Section I]
Article 3 - Inhuman treatment; Extradition
Inhuman treatment following applicants’ extraordinary rendition to CIA: violations
[This summary also covers the judgment in the case of Abu Zubaydah v. Lithuania, 46454/11, 31 May 2018].
Establishment of the facts and jurisdiction: The Court found it established conclusively and beyond reasonable doubt that Lithuania and Romania had hosted on their territory a CIA Detention Site; 
that the applicants had been secretly detained there for more than a year and that the authorities of the respondent States knew of the nature and purposes of the CIA’s activities in their countries;
- within the “jurisdiction” of Lithuania and Romania under Art. 1 of the ECHR.

39. Regner v. Czech Republic [GC], No. 35289/11, 19/09/2017
Article 6-1: Fair trial/Adversarial trial/Equality of arms (Art. 6 applicable)
Lack of access to classified information constituting decisive evidence in judicial-review proceedings: NO VIOLATION (??).
Facts:
The National Security Authority decided to revoke the security clearance that had been issued to the applicant enabling him to hold the post of deputy to the first Vice-Minister of Defence, on the grounds that he posed a risk to national security.
The decision did not, however, indicate which confidential information it was based on, as this was classified “restricted” and
could not therefore legally be disclosed to the applicant.
The applicant and his lawyer were not permitted to consult the documents in the case file. [All] subsequent appeals by the applicant were unsuccessful.
the applicant complained that the administrative proceedings had been unfair because he had been unable to have sight of decisive evidence, classified as confidential information, which had been made available to the courts by the defendant.

40. Regner v. Czech Republic [GC/2017]:
The proceedings to revoke the security clearance had been restricted in two ways with regard to the rules of a fair trial:
- the classified documents and information had not been available either to him or to his lawyer, and
- in so far as the decision revoking security clearance had been based on those documents, the grounds for the decision had not been disclosed to him.
Domestic courts had unlimited access to all the classified documents; the applicant, who had been heard by the judges and had also been able to make his submissions in writing.
The Supreme Administrative Court - that disclosure of the classified documents could have had the effect of disclosing the intelligence service’s working methods, or leading to attempts to influence possible witnesses.

41. Regner v. Czech Republic:
Accordingly, there was nothing to suggest that the classification of the documents had been decided arbitrarily or for a purpose other than the legitimate interest as […] the applicant had been prosecuted for participation in organised crime; aiding and abetting abuse of public power and illegally influencing public procurement procedures […];
It was understandable that the authorities considered it necessary to take rapid action...
Nonetheless, it would have been desirable – for the national authorities, or at least the Supreme Administrative Court, to have explained, if only summarily, the extent of the review they had carried out and the accusations against the applicant.
Conclusion: NO violation (ten votes to seven) of the applicant’s right to a fair trial.

42. Conclusion on the sole or decisive evidence: (Regner case – different position):
Where a hearsay statement is the sole or decisive evidence, its admission as evidence will not automatically result in a breach of Art. 6 § 1;
in such cases, the European Court must subject the proceedings to the most searching scrutiny;
proportionality and necessity test should be performed
sufficient counterbalancing factors, including the existence of strong procedural safeguards, should be granted to the defence.

43. Older case - Perry v. the United Kingdom (dec
Older case - Perry v. the United Kingdom (dec.), 63737/00, ECtHR, 26 September 2002:
Videotaping for identification purposes
The applicant had covertly been videotaped by the police for identification purposes in violation of domestic procedure.
The applicant complained:
- of a violation of Art. 6 resulting from the use of the evidence obtained by covert videotaping;
the domestic courts failed to protect the applicant’s rights by NOT excluding such unlawfully-obtained evidence from trial.
- of a violation of Article 8 of the ECHR.
The tape, along with other evidence, was used for conviction of robbery (NOT the SOLE evidence).
Inadmissibility Decision (partially).

44. Perry v. the United Kingdom:
Adequate Safeguards put in place/ECtHR:
the applicant’s counsel challenged the admissibility of the video tape;
Defence was able to present arguments to exclude the evidence as unreliable, unfair or obtained in an oppressive manner;
the second judge admitted the evidence and the applicant remained entitled to challenge it before the jury;
the judge’s approach was reviewed on appeal by the Court of Appeal;
At each step of the procedure, the applicant had therefore been given an opportunity to challenge the reliability and quality of the identification evidence based on the videotape.
The trial and appeal satisfied the requirements of Article 6 § 1.

45. Al-Khawaja case (GC – 15 to 2 Votes): NO VIOLATION
ECtHR – complaints about conviction based on the sole or decisive evidence - conviction of Mr Al-Khawaja on two counts of indecent assault on two female patients while they were allegedly under hypnosis;
The applicant was a consultant physician in the field of rehabilitative medicine; he was sentenced to 12 and 15 months’ imprisonment.
The appeal centred on the pre-trial ruling to admit S.T.’s statement as evidence.

46. Al-Khawaja case:
The Court of Appeal - the first applicant’s right to a fair trial had not been infringed.
The witness, S.T., could not be examined because she had died.
She was the only witness whose evidence went directly to the commission of an indecent assault on her by the appellant.
If her statement had been excluded, the prosecution would have had to abandon the first count.

47. Al-Khawaja case:
Legal problem - [only one] decisive evidence, which was admitted, no cross-examination at trial.
BUT - procedural safequards offered at the trial COMPENSATED difficulties caused to the defence:
the statement of S.T. was recorded by the police in a proper form;
there were strong similarities between S.T.’s description of the alleged assault and that of the other complainant, V.U.

48. Tahery case - Violation of Art. 6 (GC – unan.):
Tahery was convicted principally of wounding with intent to cause grievous bodily harm (3 stab wounds) (10 years imprisonment). When witnesses were questioned at the scene, no one claimed to have seen Mr. Tahery stab S. Two days later, however, the witness T. made a statement to the police that he had seen Mr. Tahery stab S. This was a decisive evidence for Tahery‘s conviction. Legal problem – the same as in Al-Khawaja case – admission of T. statements given to the prosecution. Witness T. was NOT questioned at trial/No cross-examination at trial. The judge had supported the prosecution‘s application to read T.’s statement at the trial as T. was too fearful to attend trial before the jury [...].

49. Position of a National Judge:
34. In ruling that leave should be given for the statement to be read to the jury, the trial judge stated:
“I am satisfied in those circumstances upon the criminal standard of proof that this witness is genuinely in fear; [...]
[...] any risk [that] its admission or exclusion will result in unfairness to any party to the proceedings.
I am satisfied that there would be an unfairness caused by its exclusion; but I am equally satisfied that no unfairness would be caused by its admission.
Challenge of a statement does not always come from cross-examination;
Challenge of a statement can be caused by evidence given in rebuttal.

50. Tahery case/ECtHR:
165.  [...] the decisive nature of T.’s statement in the absence of any strong corroborative evidence (the only witness who had claimed to see the stabbing);
[therefore] the jury was unable to conduct a fair and proper assessment of the reliability of T.’s evidence (???).
Such untested evidence weighs heavily in the balance and requires sufficient counterbalancing factors to be granted to the defence.
Therefore, examining the fairness of the proceedings as a whole, the ECtHR concludes that there were not sufficient counterbalancing factors to compensate for the difficulties to the defence which resulted from the admission of T.’s statement.
A violation of Art. 6 § 1 of read in conjunction with Art. 6 § 3 (d).

51. Conclusions as regards the admission of evidence:
the admissibility of evidence as such, is primarily a matter for regulation under national law;
national judge should decide on the admissibility of [a particular] evidence;
the Role of the ECtHR is to determine whether the proceedings as a whole at domestic level were fair;
the defendant should have an opportunity of challenging the authenticity of the evidence admitted and of opposing its use;
sufficient counterbalancing factors are required to compensate difficulties caused to the defence by admission of an untested evidence.

52. CASE OF ARTUR PARKHOMENKO v. UKRAINE, (Appl. No
CASE OF ARTUR PARKHOMENKO v. UKRAINE, (Appl. No /05) 16 February 2017)/Waiver of the rights/guarantees of Article 6:  
79. Article 6 of the Convention does NOT prevent a person from waiving of his his entitlement to the guarantees of a fair trial.
A waiver must be established in an unequivocal manner and be attended by minimum safeguards.
Furthermore, it must not run counter to any important public interest (see Sejdovic v. Italy [GC], no /00, § 86, ECHR 2006‑II).
For a waiver to be effective it must be shown that the applicant could reasonably have foreseen the consequences of his conduct (Idalov v. Russia [GC], no. 5826/03, § 173, 22 May 2012).
The right to counsel, being a fundamental right among those which constitute the notion of a fair trial under Article 6 of the Convention, is a prime example of those rights which require the special protection of the “knowing and intelligent waiver”
(standard established in the Court’s case-law (see Dvorski v. Croatia [GC], no /11, § 101, ECHR 2015).

53. Violations of Art. 3 and 8 of the ECHR and the right to a fair trial – different position:
Admission in evidence of information obtained in breach of Art. 8 (Respect for private and family life) – in principle, not in conflict with Art. 6.
the use of evidence obtained in violation of Art. 3 (prohibition of torture and inhuman or degrating treatment) raises serious issues as to the fairness of such proceedings, even if the admission of such evidence was not decisive in securing the conviction;
the use of evidence obtained as a result of torture renders a trial automatically unfair
(Harutyunyan v. Armenia (no /03, ECHR ).

54. Bykov v. Russia [GC]:
The same position – followed in the case Bykov v. Russia ([GC], No. 4378/02, 10/03/2009).
Art. 6: 11 votes to 6 – NO viol. (see also the Diss.Op.).
Bykov complained that the covert operation of the police involved an unlawful intrusion into his home and that the interception and recording of his conversation with Mr V., where he incriminated himself, amounted to interference with his private life and his correspondence.
The recording of the conversation was admitted as evidence in his criminal trial for a murder crime.

55. Bykov v. Russia:
97. […] V. was not cross-examined at the trial, the failure to do so was not imputable to the authorities, who took all necessary steps to establish his whereabouts, including by seeking the assistance of Interpol.
The applicant was given an opportunity to question V. when they were confronted during the questioning on 10 October 2000.
The applicant's counsel expressly agreed to having V.'s pre-trial testimonies read out in open court.
Finally, V.'s incriminating statements were corroborated by circumstantial evidence, in particular numerous witness testimonies confirming the existence of a conflict of interests between the applicant and S.
98. In view of the above, the Court accepts that the evidence obtained from the covert operation was not the sole basis for the applicant's conviction, but it was corroborated by other conclusive evidence.

56. Case Gulijev v. Lithuania, No
Case Gulijev v. Lithuania, No /03, 16 December 2008 (administrative decision-making process)
The Migration Office had refused to issue to the applicant a new temporary residence permit which resulted in the expulsion order.
Complaints of the violation of Art. 8 of the Convention (procedural aspect) - Document provided by the State Security Department and classified as “secret” had never been disclosed to the applicant during the administrative proceedings.
The decision to expel him was solely based on the allegation that he posed a “threat to national security and public order”.
The applicant had lived in Lithuania from 1993 with SG, a Lithuanian citizen, whom he had married in 2001 and with whom he had two children (Lithuanian citizens) [...]

57. Case Gulijev v. Lithuania
Procedural violation of Art. 8 (“family life” ).
Art. 6 of the ECHR not applicable.
Administrative courts of Lithuania relied upon the report of the State Security Department which was classified as “secret”;
BUT - the content of this report was never disclosed to the applicant during the administrative proceedings, thus restricting his defence rights.
The report was the sole basis for the refusal of the residence permit and the applicant‘s deportation order.

58. Case Gulijev v. Lithuania
ECtHR paid attention to the practice of the domestic admin. courts that, as a rule, factual data which constitutes a State secret may not be used as evidence in an administrative case until it has been declassified […].
However, admin. courts of Lithuania did not follow this clear procedural rule.
In the case file, there were no documents allowing the Court to conclude that the applicant posed a threat to national security (??);
The applicant was deported and until 2099 is prohibited from re-entering Lithuania, where his two children and wife, all of whom were Lithuanian citizens, live (an important element for necessity and proportionality test).

59. Violation of Article 3 (prohibition of torture and inhuman or degrating treatment) and admission of evidence:
Violation of Article 3 is subject to different considerations than evidence gathered by a violation of Art. 8 of the ECHR;
the use of evidence obtained in violation of Art. 3 in criminal proceedings raises in itself serious issues as to the fairness of such proceedings, even if the admission of such evidence was not decisive in securing the conviction;
Article 3 of the Convention - an absolute right, permitting no exceptions or derogations;
in particular, the use of evidence obtained as a result of torture renders a trial automatically unfair (Harutyunyan v. Armenia (no /03, ECHR ).

60. Gäfgen v. Germany: NO VIOL. of Article 6 § 1 and § 3 of the Convention
Gäfgen v. Germany: NO VIOL. of Article 6 § 1 and § 3 of the Convention. Violation of Art. 3.
Facts:
In 2002 the applicant suffocated an eleven-year-old boy to death and hid his corpse.
He sought a ransom from the boy’s parents and was arrested shortly after having collected the money.
In the police station he was questioned about the victim’s whereabouts and threatened with physical pain in order to make him reveal the boy’s location.
For fear of being exposed to such treatment, the applicant disclosed where he had hid the victim’s body.
In the subsequent criminal proceedings, a regional court decided that none of his confessions made during the investigation could be used as evidence since they had been obtained under duress contrary to Article 3 of the ECHR.

61. Gäfgen v. Germany:
At the trial, the applicant again confessed to murder.
The court’s findings were based on that confession and on other evidence, including evidence secured as a result of the statements extracted from the applicant during the investigation. The applicant was ultimately convicted to life imprisonment.
The Federal Constitutional Court having nonetheless acknowledged that extracting his confession during the investigation constituted a prohibited method of interrogation both under the domestic law and the Convention.
In 2004 the two police officers involved in threatening were convicted of coercion and incitement to coercion while on duty.

62. Gäfgen v. Germany: NO VIOL. of Article 6 § 1 and § 3
ECtHR:
187.  […] in the particular circumstances of the applicant’s case, the failure to exclude the impugned real evidence in a murder criminal case, secured following a statement extracted by means of inhuman treatment, did not have a bearing on the applicant’s conviction and sentence.
[he confessed to the crime again during the trial, stressing that he was confessing freely in order to take responsibility for the crime he had committed].
As the applicant’s defence rights have likewise been respected, his trial as a whole must be considered to have been fair.
188.  No violation of Art. 6 § 1 and § 3 of the Convention.

63. Violation of Article 3/ impact to Art. 6 – fairness/CONCLUSIONS:
The suggestion that the admission of evidence obtained by any form of ill-treatment is unacceptable under Art. 6 appears already in the Gôçmen v. Turkey case (no /01, 17 October 2006).
Recent developments suggest that this may also be the case with other forms of ill-treatment (see Jalloh v. Germany case [GC], where an emetic was administered to the applicant by force in order to force him to regurgitate the drugs he had swallowed. The evidence – drugs obtained in such way were used in the criminal proceedings against the applicant). Violations of Art. 3 and Art. 6 of the ECHR.
Gäfgen v. Germany [GC], Viol. of Art. 3, BUT NO viol. of Art. 6 (by 11 to 6 votes, see also the Diss. Op.).
FOR DISCUSSION – is Gäfgen v. Germany [GC] case in line with the Court‘s traditional case-law on admission of evidence or not?

64. Evidence/[some] new tendencies :
Clear rule – admission of evidence - matter for regulation under national law/and for a national judge to decide;
BUT – some exceptions possible – Regner v. Czech Republic case [GC, 2017]; admission of the sole and also secret evidence, NOT disclosed to the defence – NO Viol. of Art. 6;
for discussions – is this case in line with ECtHR case-law?
„Secret prisons“ cases - ECtHR establishes „facts“ (beyond reasonable doubts) – for discussions - is it the Role of the ECtHR under Art. 19 or NOT?
Art. 41 and 46 of the Convention (Execution of judgments in such cases/reopening of the cases/ positive obligations of the States).

65. Article 41, 46 of the ECHR/Dvorski v. Croatia, GC:
117. The Court cannot speculate as to the outcome of the proceedings against the applicant. The finding of a violation of Article 6 §§ 1 and 3 (c) in the present case does not imply that the applicant was wrongly convicted.
The Court considers that the finding of a violation constitutes sufficient just satisfaction.
It notes that Article 502 of the Code of Criminal Procedure allows for the possibility of the reopening of proceedings (see paragraph 61 above). It therefore rejects the applicant’s claim (see Maresti v. Croatia, no /07, § 75, 25 June 2009; Baloga v. Ukraine, no. 620/05, § 38, 16 September 2010; Aras v. Turkey (no. 2), no /07, § 62, 18 November 2014).