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Seminar on Human Rights and Access to Justice in the EU ...

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Human Rights and Access to Justice in the EU,Bucharest, Romania26-27June2018European Judicial Training Network
Prof.Dr.Danutė JočienėJustice of the Constitutional Court of LithuaniaFormer Judge of the European Convention on Human Rights (2004-2013)[email protected]
Art. 6para 1ofthe European Convention on Human Rights (the Convention or the ECHR) –Theright to a court (access) and to afairtrial:
1. In the determination ofhis civil rights and obligationsor ofany criminal chargeagainst him,everyoneis entitledto a fair and public hearingwithin a reasonable timebyan 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 […]
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 hisdefence;(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.
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. Francecase [GC], No. 47287/99, 2004 02 12);very often invoked by the applicants before the ECtHRfrom differentperspectives(i.e.,fairtrial requirement, access to a court; defence rights, equality of arms, admission/contestationofan admittedevidence, etc.).
Subsidiarity and the Role of the ECtHR:
It is nottheEuropeanCourt‘sfunction to deal with errors of fact or law allegedly committed by national courtsor to substitute their own assessment unless they may have infringed the rights and freedoms protected by the Convention(GarcíaRuiz v. Spain[GC], no. 30544/96, §§ 28-29, ECHR 1999-I).Art. 19 of the ECHR–the unique Role of the Court.
The Role of the Court:
The ECtHR is not an appellate court;Art.6 does not allow theECtHRto act as a court of fourth instance; itcannot replace national courts(Bykov v. Russia[GC], 10/03/ 2009, § 88);Article6 establishes a very strong presumption of facts as found by domestic courtsunless the domestic proceedings breached the essence of the Art. 6of the European Convention on Human Rights.
Article 6/ Evidence:
Article 6 of the Conventiondoes not lay down any rules on the admissibility of evidence as such,which is primarily a matter for regulation under national law(Jallohv. Germany[GC], no. 54810/00, §§ 94-96, ECHR 2006‑IX);TheRole of the ECtHR isto decidewhether the proceedings as a whole, including the way in which the evidence was obtained, werefair(assessment of anoverallfairnessof the proceedings).
Some„NEW“tendencies in the case law of the ECtHR:
Regnerv. Czech Republic[GC], No. 35289/11, 19/09/2017;Article 6-1: Fair hearing/Adversarial trial/Equality of arms -Lack of access toclassified information constitutingdecisive evidencein judicial-review proceedings:Article 6 applicable;no violation.Establishing of facts – “secret prisons” cases v. Lithuania(AbuZubaydahv. Lithuania,no. 46454/11, 31/05/2018)and Romania(AlNashiriv.Romania,No. 33234/12; 31/05/2018):ECtHR – was “establishing” factsconcerningthepresenceofsecretprisonsinthetwomentionedcountries.
AlNashiriv.Romania, AbuZubaydahv. Lithuania:
AlNashiriv. Romania-33234/12;Judgment 31.5.2018 [Section I]Article 3-Inhuman treatment;ExtraditionInhuman treatment following applicants’ extraordinary rendition to CIA: violations[This summary also covers the judgment in the case ofAbuZubaydahv. 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;[...]theyenablethe CIA to detain terrorist suspects on their territory, they were exposing to a serious risk of treatment contrary to the Convention.The matters complained of in the present cases fell within the “jurisdiction” of Lithuania and Romania within the meaning of Art.1.
Regnerv. Czech Republic [GC/2017]:
Merits:The proceedings to revoke the security clearance brought by the applicant had been restricted in two ways with regard to the rules of a fair trial: first, the classified documents and information had not been available either to him or to his lawyer, and second, 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.The Court noted the powers conferred on the domestic courts. They had unlimited access to all the classified documents; the applicant, who had been heard by the judges and had also been ableto make his submissions in writing.The domestic courts had duly exercised the powers of scrutiny available to them in this type of proceedings;The Supreme Administrative Court - that disclosure of the classified documentscould have had the effect of disclosing the intelligence service’s working methods, or leading to attempts to influence possible witnesses.
Regnerv. 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 […] in March 2011 the applicant had been prosecuted for participation inorganisedcrime; aiding and abetting abuse of public power; complicity in illegally influencing public tendering and public procurement procedures […];It was understandable that where such suspicions existed the authorities considered it necessary to take rapid action without waiting for the outcome of the criminal investigation...Nonetheless, it would have been desirable – to the extent compatible with the preservation of confidentiality and effectiveness of the investigations concerning the applicant– 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.
Equality of arms/the 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 orevidence adduced by the other party;Both requirements – constituent part of Art. 6 (fairtrial).
Fairproceedings/use of evidence:
In determiningwhether the proceedings as a whole werefair, the rights of thedefenceshould be regarded;also the interests of the public and the victims that crime is properly prosecuted(seeGäfgen v. Germany[GC], no. 22978/05, § 175, ECHR 2010)and,The applicantsshould havethe opportunity of challenging the authenticity of the evidence and of opposing its use(Schenk, Khancases).
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 forsupporting evidenceis correspondingly weaker(Khan, §§ 35 and 37, andAllan, § 43).
Disclosure of evidence:
The entitlement to disclosure of relevant evidenceis 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 crimeor to safeguard an important public interest, etc.)which must be weighed against the rights of thedefence.
Disclosure of evidence:
[Some] measures restricting the rights of thedefencemust bestrictly necessary.[and] mustbesufficiently counterbalancedby the procedures followed by the judicial authorities(Jasper v. the United Kingdom[GC], no.27052/95, § 52, 16 February 2000).
CasePociusv. Lithuania(No. 35601/04,ECtHR,6 July 2010)(OPPOSITEconclusioninRegnerv.CzechRepubliccase/2017):
“Civilright”aspectunder Article 6 of the Convention, VIOLATION of Art. 6 § 1:The decision-making proceduredid not comply with the requirements of adversarial proceedingsorequality of arms,anddid not incorporate adequate safeguardsto protectthe interests of the applicant […].
CasePociusv. 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 hislicenceto keep firearms was revoked.
CasePociusv. Lithuania:
Complaints:the restriction on his having access to the operational records file had not been proportionate;domestic courts had based their decisionson classified informationwhich had not been disclosed tothe applicant;Instead of [a real] evidence, the applicant had been presented with mere assumptionson his danger to the national security [...]
CasePociusv. Lithuania/admission of evidence
The content of the operational file wasneverdisclosed to the applicant;Lithuanian judges did examine, behind closed doors, the operational records file and relied on it in their decisions;the applicanthadNOpossibilityto challenge this evidence or to respond to it,unlike the police who had effectively exercised such rights.
CasePociusv. Lithuania:
53.[...]where evidence has been withheld from thedefence, it is not the role ofthe EuropeanCourt 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;BUTthe decision-making procedure should ensure theadversarial proceedingsandequality of arms,andincorporate adequate safeguardsto protect the interests of the accused.
Luca v. Italy case(no. 33354/96, § 40, ECHR 2001‑II)- balancing offairtrial withthefailure to examine key witness [at trial]
The applicantcomplained that the criminal proceedings against him(possession of cocaine)had beenunfair[...] [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 Conventioninvolved.
Lucacase/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”.
Luca v. Italy/Viol. of Art. 6§§1 and 3 (d).
if the defendant has been given an adequate and proper opportunity to challenge the depositionsmade at investigation stage [...],their admission in evidencewill not in itselfcontravene 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 restrictedinviolationofArt. 6
Where a hearsay statementis the sole or decisive evidence,its admission as evidence will not automatically result in a breach of Art.6 § 1;in such cases, theEuropeanCourt must subject the proceedings to the most searching scrutiny;proportionality and necessity test should be performedsufficient counterbalancing factors,including the existence of strong procedural safeguards, should be granted to the defence.
Conclusion on the sole or decisiveevidence:(Regnercase–differentposition):
Perry v. the United Kingdom(dec.), 63737/00,ECtHR,26 September 2002:
Videotaping for identification purposesThe applicant hadcovertlybeenvideotapedby the policefor identification purposes inviolationof 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 byNOTexcluding such unlawfully-obtained evidence from trial.-of a violation of Article 8of the ECHR.The tape, along with other evidence, was usedforconvictionof robbery(NOTthe SOLE evidence).Inadmissibility Decision (partially).
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 presentarguments 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.Thetrial and appeal satisfied the requirements of Article 6 § 1.
Al-Khawajacase(GC – 15 to 2 Votes):NO VIOLATION
ECtHR– complaints about conviction based onthe sole or decisive evidence-convictionofMrAl-Khawajaon two counts of indecent assault on two female patientswhile they were allegedly under hypnosis;The applicant wasa consultant physician in the field of rehabilitativemedicine;hewassentencedto 12and15 months’imprisonment.The appealcentredon the pre-trial ruling to admit S.T.’s statement as evidence.
Al-Khawajacase:
The Court of Appeal-the first applicant’s right to afairtrial hadnotbeen infringed.The witness, S.T., could not be examinedbecause 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 prosecutionwould have had to abandon the first count.
Al-Khawajacase:
Legal problem- [only one] decisive evidence, which was admitted,no cross-examination at trial.BUT -procedural safequards offered at thetrialCOMPENSATED difficulties caused to thedefence: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.
Taherycase- Violation of Art. 6 (GC – unan.):
Taherywas 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 seenMr. Taherystab S.Two days later, however,the witnessT. made a statement to the police that he had seenMr. Taherystab S.This was a decisive evidence for Tahery‘s conviction.Legal problem – the same as inAl-Khawajacase – admission of T. statementsgiven tothe prosecution.Witness T. was NOT questioned at trial/No cross-examination at trial.The judge had supported the prosecution‘sapplicationto read T.’s statementat the trial asT. was too fearful to attend trial before the jury[...].
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.
Tahery case/ECtHR:
165.[...]the decisive nature of T.’s statementin the absence of any strong corroborative evidence(the only witness who had claimed to see the stabbing);[therefore] the jury was unable to conduct afairand proper assessment of the reliability of T.’s evidence(???).Suchuntested evidence weighs heavily in the balance andrequires sufficient counterbalancing factors tobe grantedto thedefence.Therefore, examiningthe fairness of the proceedings as a whole, theECtHRconcludes thatthere were not sufficient counterbalancing factors to compensate for the difficulties to the defence which resulted from the admission of T.’s statement.Aviolation of Art.6 § 1 of read in conjunction with Art.6 § 3 (d).
Conclusions as regards the admission of evidence:
the admissibility of evidence as such, is primarily a matter for regulation under national law;national judgeshoulddecide on the admissibility of [a particular] evidence;theRole of the ECtHRis todeterminewhether the proceedings as a wholeat domestic levelwerefair;thedefendant should have anopportunity of challenging the authenticity of the evidenceadmittedand of opposing its use;sufficient counterbalancing factorsare requiredto compensate difficulties caused to thedefenceby admissionof an untested evidence.
Violationsof Art. 3 and 8of the ECHR and the right to afairtrial– different position:
Admission in evidence of information obtained in breach of Art. 8 (Respect for private and family life) –in principle,notinconflict with Art. 6.the use of evidence obtained in violation of Art. 3(prohibition of torture and inhuman ordegratingtreatment)raisesserious 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 oftorturerenders a trial automaticallyunfair(Harutyunyan v. Armenia(no. 36549/03, ECHR 2007-...).
Bykovv. Russia[GC]:
The same position- inthecaseBykovv. Russia ([GC], No. 4378/02, 10/03/2009).(Art. 6:11 votes to 6 –NOviol., see also the Diss.Op.).Bykovcomplainedthatthecovert operation of the policeinvolved an unlawful intrusion into his home and that the interception and recording of his conversation withMrV., 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.
Bykovv. 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 operationwas not the sole basis for the applicant's conviction, but it was corroborated by other conclusive evidence.
CaseGulijevv. Lithuania, No. 10425/03, 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.Complaintsofthe 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) [...]
CaseGulijevv. Lithuania
Proceduralviolation of Art.8 (“family life” ).Art. 6 of theECHRnotapplicable.Administrativecourts of Lithuania relied uponthereportofthe State Security Departmentwhich wasclassified as “secret”;BUT-the content ofthisreport was never disclosed to the applicant during the administrative proceedings, thus restricting hisdefencerights.Thereport wasthe sole basisfor therefusal of the residence permit andthe applicant‘sdeportationorder.
CaseGulijevv. Lithuania
ECtHRpaidattentionto 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,therewereno documents allowing the Court to conclude that the applicant posed a threatto national security (??);The applicant was deported anduntil 2099 is prohibited from re-entering Lithuania, where his two children and wife, all of whom were Lithuanian citizens, live(an important elementfornecessityandproportionalitytest).
Violation of Article 3(prohibition of torture and inhuman or degrating treatment)and admission of evidence:
Violation ofArticle 3is subject to different considerationsthan evidence gathered by aviolation ofArt.8of 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 evidencewas not decisivein securing the conviction;Article 3 of the Convention - anabsoluteright,permitting no exceptions or derogations;in particular, the use of evidence obtained as a result oftorturerenders a trial automaticallyunfair(Harutyunyan v. Armenia(no. 36549/03, ECHR 2007-...).
Gäfgenv. Germany: NO VIOL. ofArticle6 § 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 thatnone 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.
Gäfgenv. Germany:
At the trial, the applicant again confessed to murder.The court’s findings were based on that confession and on other evidence, includingevidence securedas 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 thatextracting 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.
Gäfgenv. Germany: NO VIOL. ofArticle6 § 1 and § 3
ECtHR:187.  […]in the particular circumstances of the applicant’s case,the failure to exclude the impugnedreal evidencein a murder criminal case, secured following a statement extracted by means of inhuman treatment,did not have a bearingon 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’sdefencerights have likewise been respected, histrial as a whole must be considered to have beenfair.188.No violation of Art. 6 § 1 and §3 of the Convention.
Violation of Article 3/ impact to Art. 6 –fairness/CONCLUSIONS:
The suggestionthat theadmissionof evidence obtainedby any form of ill-treatmentis unacceptable under Art.6 appears alreadyintheGôçmenv.Turkeycase(no. 72000/01, 17 October 2006).Recent developments suggest that this may also be the casewith other forms of ill-treatment(seeJalloh v. Germanycase[GC],where an emetic was administered tothe applicantby forcein order to force him to regurgitate the drugs he had swallowed. The evidence– drugs obtained in such way wereused in the criminal proceedings against theapplicant).Violations of Art. 3 and Art. 6 of the ECHR.Gäfgenv. Germany[GC],Viol. of Art. 3,BUT NO viol. of Art. 6(by 11 to 6 votes, see also the DO).FOR DISCUSSION –isGäfgenv. Germanycase in line with the Court‘s traditional case-law or not?
Evidence/newtendencies:
Clearrule-matterofnationallawandforanationaljudgetodecide;BUT–someexceptionspossiblewheneventhesoleand/ordecisiveevidencecanbeadmittedwhichIS,furthermore,NOTaccessibletotheapplicantorhis/herdefence–Regnerv.CzechRepubliccase[GC, 2017];„Secretprisons“cases-ECtHRestablishes„facts“inthecasesandadmittingevidence(??) –isittheRoleoftheECtHRorNOTunderArt. 19oftheECHR?Art. 41and46oftheConvention(ExecutionofthesecaseandpositiveobligationsplacesontheStates).

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