PROTECTING THE RIGHT TO A FAIR TRIAL UNDER EUROPEAN CONVENTION ON HUMAN RIGHTS PROTECTING THE RIGHT TO A FAIR TRIAL UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS A handbook for legal practitioners 2nd edition prepared by Dovydas Vitkauskas Dovydas Vitkauskas Grigoriy Dikov PROTECTING THE RIGHT TO A FAIR TRIAL UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS A handbook for legal practitioners 2nd edition prepared by Dovydas Vitkauskas Dovydas Vitkauskas Grigoriy Dikov Council of Europe The opinions expressed in this work are the responsibility of the authors and do not necessarily reflect the official policy of the Council of Europe. All requests concerning the reproduction or translation of all or part of this document should be addressed to the Directorate of Communication (F-67075 Strasbourg Cedex or [email protected]). All other correspondence concerning this publication should be addressed to the Human Rights National Implementation Division, Human Rights Policy and Co-operation Department, Directorate of Human Rights, Directorate General Human Rights and Rule of Law. Cover design: Documents and Publications Production Department (SPDP), Council of Europe Photo: Column of Justice, Piazza Santa Trinità, Florence. © Council of Europe © Council of Europe, 2nd edition September 2017 Printed at the Council of Europe Contents ABOUT THE AUTHORS 5 PREFACE AND ACKNOWLEDGEMENTS 7 ARTICLE 6 – RIGHT TO A FAIR TRIAL 9 CHAPTER 1 – ROLE OF ARTICLE 6 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS: METHODS AND PRINCIPLES OF INTERPRETATION 11 CHAPTER 2 – SCOPE OF PROTECTION AND APPLICABILITY 17 2.1. Civil rights and obligations 17 2.2. Criminal charge 22 2.3. Applicability to pre-trial investigation, appeal, constitutional and other review proceedings 27 CHAPTER 3 – RIGHT TO COURT 29 3.1. Access to court 29 3.2. Finality and enforcement of court decision 41 CHAPTER 4 – INDEPENDENT AND IMPARTIAL TRIBUNAL ESTABLISHED BY LAW 45 4.1. Independent tribunal established by law 45 4.2. Impartial tribunal 52 CHAPTER 5 – FAIRNESS 59 5.1. Adversarial principle and equality of arms 60 5.2. Participation and publicity 69 5.3. Specifics of fairness of criminal proceedings 79 CHAPTER 6 – FAIRNESS AND JUDICIAL DECISION MAKING 99 6.1. Reasoned decision 99 6.2. Unreliable evidence 102 6.3. Inconsistent domestic jurisprudence 104 CHAPTER 7 – TRIAL WITHIN REASONABLE TIME 107 7.1. General principles 107 7.2. Nature and complexity of case 109 7.3. Conduct of parties: delays by authorities 110 CHAPTER 8 – PRESUMPTION OF INNOCENCE 113 CHAPTER 9 – DEFENCE RIGHTS 121 9.1. Notification of charge and defence facilities 121 9.2. Legal representation or defence in person 128 9.3. Examination of witnesses 136 INDEX OF CASES 147 Page 3 About the authors ovydas Vitkauskas is a consultant on justice reform and good governance. With long-term experience as a lawyer at the Registry of the European DCourt of Human Rights, and an academic background in Lithuanian and English law, he now advises various governments on large-scale institutional reforms, leading teams of experts in implementing activities in Council of Europe and European Union projects. He also carries out training for legal professionals on human rights standards and the good administration of justice. He has updated the second edition of this Handbook. Grigory Dikov is a legal officer at the Secretariat of the European Commission for Democracy through Law (Venice Commission). Previous to that, he worked as a case-lawyer at the Registry of the European Court of Human Rights in Strasbourg for over 10 years. Formerly a practising lawyer in Russia, he oversaw a number of legal reform projects there, ran professional training events in various European countries and produced publications as an expert on criminal justice and fair trial standards. He was also a visiting professor of European human rights law at the Syracuse University Centre in Strasbourg and a member of the editorial team of the Comparative Constitutional Review journal (Russia). Page 5 Preface and acknowledgements his manual targets, first and foremost, practising lawyers, members of the judiciary and other legal professionals already knowledgeable in T Article 6 of the European Convention on Human Rights and the case law of the European Court of Human Rights. Article 6 is arguably the most complex one in the Convention set-up in terms of its scope of application, the number of arising issues and the extent of interpretation by the Strasbourg Court. The context calls for a different approach to increase the chance of practical use of the textbook, especially by legal practitioners. While many Convention textbooks focus on an elabo- rate telling of “stories” leading to findings of a breach, this manual attempts to extract core principles from prominent cases at the European Court of Human Rights. Very brief stories are included here to illustrate the principles listed in the narrative part, in order to present only typical and exceptional situations where violation or no violation was found. The chosen approach may hopefully be useful to those writing obiter dicta or ratio decidendi in the context of domestic or international litigation, without forgetting law students and researchers. The initial feedback received from various corners of Europe following the First Edition of the Handbook in 2012 indicates that we are on the right track. It must be emphasised that the inherent limitations on length required me to be concise while remaining comprehensive, as a result of which I may have omitted some relevant issues, or oversimplified certain interpretations by the Strasbourg Court, which, more frequently than not, remain constrained to the “particular circumstances of the case”. I therefore encourage the readers to further enhance their knowledge of both the factual background of the quoted cases and the legal side of the Article 6 jurisprudence. Most importantly, I intended to outline not only the “solved” issues, but also some inconsistencies in certain Convention authorities, which may require further clarifications down the road with a view to enabling the Strasbourg Court to make its Article 6 case law even more “clear and foreseeable”. Nonetheless, I do hope that this manual will serve many users as a practical toolbox rather than merely as food for thought about the unresolved legal problems. Page 7 I wish to extend my sincere thanks all those who have played a part in the development of the manual over the years by way of editing and additional contributions, namely Grigory Dikov, Monika Stonkutė, Vasily Lukashevich, Lisa Freeman, Marc Willers and Bert Maan. Dovydas Vitkauskas Page 8 Protecting the right to a fair trial under the European Convention on Human Rights European Convention on Human Rights Article 6 – Right to a fair trial f 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 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. f Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. f Everyone charged with a criminal offence has the following minimum rights: – to be informed promptly, in a language which he unders- tands and in detail, of the nature and cause of the accu- sation against him; – to have adequate time and facilities for the preparation of his defence; – 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; – 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; – to have the free assistance of an interpreter if he cannot understand or speak the language used in court. Page 9 Chapter 1 Role of Article 6 of the European Convention on Human Rights: methods and principles of interpretation Key notions and principles f teleological/purposive method of interpretation (Hornsby v. Greece, §§40-45); f autonomy from domestic law (Khan v. the United Kingdom, §§34-40); f subsidiarity and the fourth-instance doctrine (Schenk v. Switzerland, §§45-49); f examining “trial as a whole” (Salduz v. Turkey [GC], §§56-62); f qualified right and the “essence” test (O’Halloran and Francis v. the United Kingdom [GC], §§43-63). rticle 6 of the European Convention on Human Rights (“the Convention”) guarantees the right to a fair trial. It enshrines the principle of the rule A of law, upon which a democratic society is built, and the paramount role of the judiciary in the administration of justice, reflecting the common heritage of the contracting states. It guarantees the procedural rights of parties to civil proceedings (Article 6 §1) and the rights of the defendant (the accused suspect) in criminal proceedings (Article 6 §§1, 2 and 3). Whereas other participants in the trial (victims, witnesses, etc.) have no standing to complain under Article 6 (Mihova v. Italy,1 dec.), their rights are often taken into account by the European Court of Human Rights (“the Court”). 1. Cases are cited by title (including respondent state) when first mentioned here, and thereafter generally by applicant name only. A full index of cases, with reference dates, appears in the Appendix. Page 11 In a similar way to other provisions of the Convention, Article 6 is subject to teleological interpretation.