Human Rights and Access to Justice in the EU Strasbourg Council of Europe 26-28 September 2018European Judicial Training Network Prof Dr Danutė Jočienė Justice of the Constitutional Court of LithuaniaFormer Judge of the European Convention on Human Rights (2004-2013)danutejocienelrktlt
Art 6 of the ECHR
bull Fundamental principles of the right to afair trial
bull Access to a court
bull Independent and impartial court (judge)
bull Fair trial
bull Public hearing within a reasonable time
bull Procedural guarantees in [every] proceedings(Art 6 sect 1)
bull Procedural guarantees in criminal proceedings(Art 6 sectsect 23) etc
Art 6 para 1 of the European Convention on Human Rights(the Convention or the ECHR) ndash The right to a court(access) and to a fair trial
bull 1 In the determination of his civil rights andobligations or of any criminal charge againsthim
bull everyone is entitled to a fair and public hearingwithin a reasonable time
bull by an independent and impartial tribunalestablished by law
bull Judgment shall be pronounced publicly but the pressand public may be excluded from all or part of the trialin the interests of morals public order or nationalsecurity [hellip]
Art 6 para 2 3 of the ECHRcriminal cases
bull 2 Everyone charged with a criminal offence shall be presumedinnocent until proved guilty according to law
bull 3 Everyone charged with a criminal offence has the followingminimum rights
bull (a) to be informed promptly in a language which he understands andin detail of the nature and cause of the accusation against him
bull (b) to have adequate time and facilities for the preparation of hisdefence
bull (c) to defend himself in person or through legal assistance of his ownchoosing [hellip]
bull (d) to examine or have examined witnesses against him and to obtainthe attendance and examination of witnesses on his behalf under thesame conditions as witnesses against him
bull (e) to have the free assistance of an interpreter if he cannot speak thelanguage
Art 6 ndashvery important Article
bull Case law of the European Court of Human Rights(ECtHR)
bull no justification for interpreting Article 6 sect 1restrictively (Perez v France case [GC] No 4728799
2004 02 12)
bull very often invoked by the applicants before theECtHR from different perspectives (ie fair trialrequirement access to a court defence rightsequality of arms admissioncontestation of anadmitted evidence etc)
Subsidiarity and the Role of the ECtHR
bull It is not the European Courtlsquos function todeal with errors of fact or law allegedlycommitted by national courts or tosubstitute their own assessment unlessthey may have infringed the rights andfreedoms protected by the Convention(Garciacutea Ruiz v Spain [GC] no 3054496 sectsect 28-29 ECHR1999-I)
bull Art 19 of the ECHR ndash the unique Role of theCourt
The Role of the Court
bull The ECtHR is not an appellate courtbull Art 6 does not allow the ECtHR to act as
a court of fourth instance it cannotreplace national courts
bull (Bykov v Russia [GC] 1003 2009 sect 88)
bull Art 6 establishes a very strongpresumption of facts as found bydomestic courts unless the domesticproceedings breached the essence of theArt 6 of ECHR
Admission of evidence
bull General principles Mantovanelli v France No2149793 18031997 sect 34
bull The admissibility of evidence and the way it should be assessedare primarily matters for regulation by national law and thenational courts (Garcia Ruiz v Spain [GC]
bull The Convention does not lay down rules on evidence as such
bull The Court therefore cannot exclude as a matter of principle andin the abstract that evidence obtained in breach of provisions ofdomestic law may be admitted
bull It is for the national courts to assess the evidence they haveobtained and the relevance of any evidence that a party wishesto have produced
bull
Mantovanelli v Franceprinciples
bull 33 [] one of the elements of a fair hearing under Art 6-1 is theright to adversarial proceedings
bull each party must in principle have the opportunity not only to makeknown any evidence but also to have knowledge of and comment onall evidence adduced with a view to influencing the courtrsquos decision(Nideroumlst-Huber v Switzerland judgment 18021997 sect 24)
bull where an expert has been appointed by a court the parties must in allinstances be able to attend the interviews held by him or to be shownthe documents he has taken into account
bull What is essential is that the parties should be able toparticipate properly in the proceedings before the tribunal(see mutatis mutandis the Kerojaumlrvi v Finland judgment of 19 July1995 sect 42)
bull 34 [] The Court has to ascertain whether the proceedingsconsidered as a whole including the way in which the evidence wastaken were fair under Art 6-1 (see mutatis mutandis the Schenk vSwitzerland judgment 120788 sect 46)
This presentation focuses on such aspectsunder Art 6
bull Fairness of the proceedings as whole
bull Duties of national courts in admitting evidence
bull Disclosure of evidence
bull Admission of sole andor decisive evidence
bull Admission of evidence obtained by the police [active]incitement to commit a crime
bull Admission of secret evidence
bull Admission of evidence obtained in violation of Article 3 ofthe Convention (prohibition of torture inhuman anddegrating treatment)
bull Admission of evidence obtained in violation of Article 8 ofthe Convention (respect for private and family life home andcorrespondence)
Rinkūnienė v Lithuania inadmissible (No 5577908
011209)Assessment of the proceedings as whole
bull Medical negligence casedeath of theapplicantlsquos husband
bull The applicant complained about the refusal of the domesticcourts to order a supplementary expert examination inbreach of Art 6 sect 1
bull two expert reports were contradictory a new expert opinionwas requested (the third one) into the circumstances of herhusbandrsquos death
bull The ECtHR Lithuanian courts based their conclusions on twoexpert reports and four experts were summoned to courts
bull They testified before both the first-instance and appellatecourts The Court does not find that the applicant was placedat a procedural disadvantage vis-agrave-vis the medicalinstitutions or VDS
Rinkūnienėv Lithuania inadmissible (No 5577908 1 December 2009)
bull The assessment of evidence and its probative value areprimarily a matter for the domestic authorities
bull The Court is not competent to deal with an applicationalleging that errors of fact or law have been committed bydomestic courts except where it considers that such errorsmight have involved a possible violation of the rights of theConvention (Erikson v Italy (dec) no 3790097 261099)
bull The Court cannot conclude that the Lithuanian courtsrestricted the applicantrsquos opportunities to prove her case orthat they assessed the evidence before them arbitrarily
bull Overall even if the Court of Appealrsquos silence as regards athird expert report could be regarded as a procedural flawthis aspect alone had NOT reduced the effectiveness of theexamination of the doctorsrsquo responsibility
Article 6 Evidence
bull Article 6 of the Convention does not lay downany rules on the admissibility of evidence assuch which is primarily a matter for regulationunder national law(Jalloh v Germany [GC] no 5481000 sectsect 94-96 ECHR 2006-IX)
bull The Role of the ECtHR is to decide whether theproceedings as a whole including the way inwhich the evidence was obtained were fair(assessment of an overall fairness of theproceedings)
Equality of armsadversarial proceedings
bull Equality of arms ndash equal procedural ability tostate the case
bull Adversarial proceedings ndash to have an accessand a possibility to comment at trial on theobservations filed or evidence adduced by theother party
bullBoth requirements ndash constituent partof Art 6 (fair trial)
Fair proceedingsuse of evidence
bull In determining whether the proceedings as awhole were fair the rights of the defenceshould be regarded
bull also the interests of the public and the victimsthat crime is properly prosecuted (see Gaumlfgen v
Germany [GC] no 2297805 sect 175 ECHR 2010) and
bull The applicants should have the opportunity ofchallenging the authenticity of the evidenceand of opposing its use (Schenk Khan cases)
Evidence requirement
bull the quality of the evidence must be takeninto consideration including whether thecircumstances in which it was obtainedcast doubt on its reliability or accuracy
bull where the evidence is very strong andthere is no risk of its being unreliable theneed for supporting evidence iscorrespondingly weaker (Khan sectsect 35 and 37
and Allan sect 43)
Jalloh v Germany [GC] No 548100111072006
bull Criminal proceedings - Article 6-1 Fair hearing
bull Use in evidence of a plastic bag containing drugs obtained by the
forcible administration of emetics violationbull Even if it had not been the authoritiesrsquo intention to inflict pain and
suffering on the applicant the evidence had been obtained by ameasure which breached fundamental rights of the Convention
bull Furthermore the drugs obtained by the impugned measure hadproved the decisive element in securing the applicantrsquos convictionLastly the public interest in securing the applicantrsquos convictioncould not justify using such evidence at the trial
bull Accordingly the use in evidence of the drugs obtainedby the forcible administration of emetics to theapplicant had rendered his trial as a whole unfair
Disclosure of evidence
bull The entitlement to disclosure of relevantevidence is not an absolute right
bull in any court proceedings there may becompeting interests (ie national securitythe need to protect witnesses keep secretpolice methods of investigation of crime or to
safeguard an important public interest etc)
which must be weighed against the rightsof the defence
Disclosure of evidence
bull [Some] measures restricting therights of the defence must be strictlynecessary
bull [and] must be sufficientlycounterbalanced by the proceduresfollowed by the judicial authorities
(Jasper v the United Kingdom [GC] no 2705295 sect 5216 February 2000)
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Art 6 of the ECHR
bull Fundamental principles of the right to afair trial
bull Access to a court
bull Independent and impartial court (judge)
bull Fair trial
bull Public hearing within a reasonable time
bull Procedural guarantees in [every] proceedings(Art 6 sect 1)
bull Procedural guarantees in criminal proceedings(Art 6 sectsect 23) etc
Art 6 para 1 of the European Convention on Human Rights(the Convention or the ECHR) ndash The right to a court(access) and to a fair trial
bull 1 In the determination of his civil rights andobligations or of any criminal charge againsthim
bull everyone is entitled to a fair and public hearingwithin a reasonable time
bull by an independent and impartial tribunalestablished by law
bull Judgment shall be pronounced publicly but the pressand public may be excluded from all or part of the trialin the interests of morals public order or nationalsecurity [hellip]
Art 6 para 2 3 of the ECHRcriminal cases
bull 2 Everyone charged with a criminal offence shall be presumedinnocent until proved guilty according to law
bull 3 Everyone charged with a criminal offence has the followingminimum rights
bull (a) to be informed promptly in a language which he understands andin detail of the nature and cause of the accusation against him
bull (b) to have adequate time and facilities for the preparation of hisdefence
bull (c) to defend himself in person or through legal assistance of his ownchoosing [hellip]
bull (d) to examine or have examined witnesses against him and to obtainthe attendance and examination of witnesses on his behalf under thesame conditions as witnesses against him
bull (e) to have the free assistance of an interpreter if he cannot speak thelanguage
Art 6 ndashvery important Article
bull Case law of the European Court of Human Rights(ECtHR)
bull no justification for interpreting Article 6 sect 1restrictively (Perez v France case [GC] No 4728799
2004 02 12)
bull very often invoked by the applicants before theECtHR from different perspectives (ie fair trialrequirement access to a court defence rightsequality of arms admissioncontestation of anadmitted evidence etc)
Subsidiarity and the Role of the ECtHR
bull It is not the European Courtlsquos function todeal with errors of fact or law allegedlycommitted by national courts or tosubstitute their own assessment unlessthey may have infringed the rights andfreedoms protected by the Convention(Garciacutea Ruiz v Spain [GC] no 3054496 sectsect 28-29 ECHR1999-I)
bull Art 19 of the ECHR ndash the unique Role of theCourt
The Role of the Court
bull The ECtHR is not an appellate courtbull Art 6 does not allow the ECtHR to act as
a court of fourth instance it cannotreplace national courts
bull (Bykov v Russia [GC] 1003 2009 sect 88)
bull Art 6 establishes a very strongpresumption of facts as found bydomestic courts unless the domesticproceedings breached the essence of theArt 6 of ECHR
Admission of evidence
bull General principles Mantovanelli v France No2149793 18031997 sect 34
bull The admissibility of evidence and the way it should be assessedare primarily matters for regulation by national law and thenational courts (Garcia Ruiz v Spain [GC]
bull The Convention does not lay down rules on evidence as such
bull The Court therefore cannot exclude as a matter of principle andin the abstract that evidence obtained in breach of provisions ofdomestic law may be admitted
bull It is for the national courts to assess the evidence they haveobtained and the relevance of any evidence that a party wishesto have produced
bull
Mantovanelli v Franceprinciples
bull 33 [] one of the elements of a fair hearing under Art 6-1 is theright to adversarial proceedings
bull each party must in principle have the opportunity not only to makeknown any evidence but also to have knowledge of and comment onall evidence adduced with a view to influencing the courtrsquos decision(Nideroumlst-Huber v Switzerland judgment 18021997 sect 24)
bull where an expert has been appointed by a court the parties must in allinstances be able to attend the interviews held by him or to be shownthe documents he has taken into account
bull What is essential is that the parties should be able toparticipate properly in the proceedings before the tribunal(see mutatis mutandis the Kerojaumlrvi v Finland judgment of 19 July1995 sect 42)
bull 34 [] The Court has to ascertain whether the proceedingsconsidered as a whole including the way in which the evidence wastaken were fair under Art 6-1 (see mutatis mutandis the Schenk vSwitzerland judgment 120788 sect 46)
This presentation focuses on such aspectsunder Art 6
bull Fairness of the proceedings as whole
bull Duties of national courts in admitting evidence
bull Disclosure of evidence
bull Admission of sole andor decisive evidence
bull Admission of evidence obtained by the police [active]incitement to commit a crime
bull Admission of secret evidence
bull Admission of evidence obtained in violation of Article 3 ofthe Convention (prohibition of torture inhuman anddegrating treatment)
bull Admission of evidence obtained in violation of Article 8 ofthe Convention (respect for private and family life home andcorrespondence)
Rinkūnienė v Lithuania inadmissible (No 5577908
011209)Assessment of the proceedings as whole
bull Medical negligence casedeath of theapplicantlsquos husband
bull The applicant complained about the refusal of the domesticcourts to order a supplementary expert examination inbreach of Art 6 sect 1
bull two expert reports were contradictory a new expert opinionwas requested (the third one) into the circumstances of herhusbandrsquos death
bull The ECtHR Lithuanian courts based their conclusions on twoexpert reports and four experts were summoned to courts
bull They testified before both the first-instance and appellatecourts The Court does not find that the applicant was placedat a procedural disadvantage vis-agrave-vis the medicalinstitutions or VDS
Rinkūnienėv Lithuania inadmissible (No 5577908 1 December 2009)
bull The assessment of evidence and its probative value areprimarily a matter for the domestic authorities
bull The Court is not competent to deal with an applicationalleging that errors of fact or law have been committed bydomestic courts except where it considers that such errorsmight have involved a possible violation of the rights of theConvention (Erikson v Italy (dec) no 3790097 261099)
bull The Court cannot conclude that the Lithuanian courtsrestricted the applicantrsquos opportunities to prove her case orthat they assessed the evidence before them arbitrarily
bull Overall even if the Court of Appealrsquos silence as regards athird expert report could be regarded as a procedural flawthis aspect alone had NOT reduced the effectiveness of theexamination of the doctorsrsquo responsibility
Article 6 Evidence
bull Article 6 of the Convention does not lay downany rules on the admissibility of evidence assuch which is primarily a matter for regulationunder national law(Jalloh v Germany [GC] no 5481000 sectsect 94-96 ECHR 2006-IX)
bull The Role of the ECtHR is to decide whether theproceedings as a whole including the way inwhich the evidence was obtained were fair(assessment of an overall fairness of theproceedings)
Equality of armsadversarial proceedings
bull Equality of arms ndash equal procedural ability tostate the case
bull Adversarial proceedings ndash to have an accessand a possibility to comment at trial on theobservations filed or evidence adduced by theother party
bullBoth requirements ndash constituent partof Art 6 (fair trial)
Fair proceedingsuse of evidence
bull In determining whether the proceedings as awhole were fair the rights of the defenceshould be regarded
bull also the interests of the public and the victimsthat crime is properly prosecuted (see Gaumlfgen v
Germany [GC] no 2297805 sect 175 ECHR 2010) and
bull The applicants should have the opportunity ofchallenging the authenticity of the evidenceand of opposing its use (Schenk Khan cases)
Evidence requirement
bull the quality of the evidence must be takeninto consideration including whether thecircumstances in which it was obtainedcast doubt on its reliability or accuracy
bull where the evidence is very strong andthere is no risk of its being unreliable theneed for supporting evidence iscorrespondingly weaker (Khan sectsect 35 and 37
and Allan sect 43)
Jalloh v Germany [GC] No 548100111072006
bull Criminal proceedings - Article 6-1 Fair hearing
bull Use in evidence of a plastic bag containing drugs obtained by the
forcible administration of emetics violationbull Even if it had not been the authoritiesrsquo intention to inflict pain and
suffering on the applicant the evidence had been obtained by ameasure which breached fundamental rights of the Convention
bull Furthermore the drugs obtained by the impugned measure hadproved the decisive element in securing the applicantrsquos convictionLastly the public interest in securing the applicantrsquos convictioncould not justify using such evidence at the trial
bull Accordingly the use in evidence of the drugs obtainedby the forcible administration of emetics to theapplicant had rendered his trial as a whole unfair
Disclosure of evidence
bull The entitlement to disclosure of relevantevidence is not an absolute right
bull in any court proceedings there may becompeting interests (ie national securitythe need to protect witnesses keep secretpolice methods of investigation of crime or to
safeguard an important public interest etc)
which must be weighed against the rightsof the defence
Disclosure of evidence
bull [Some] measures restricting therights of the defence must be strictlynecessary
bull [and] must be sufficientlycounterbalanced by the proceduresfollowed by the judicial authorities
(Jasper v the United Kingdom [GC] no 2705295 sect 5216 February 2000)
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Art 6 para 1 of the European Convention on Human Rights(the Convention or the ECHR) ndash The right to a court(access) and to a fair trial
bull 1 In the determination of his civil rights andobligations or of any criminal charge againsthim
bull everyone is entitled to a fair and public hearingwithin a reasonable time
bull by an independent and impartial tribunalestablished by law
bull Judgment shall be pronounced publicly but the pressand public may be excluded from all or part of the trialin the interests of morals public order or nationalsecurity [hellip]
Art 6 para 2 3 of the ECHRcriminal cases
bull 2 Everyone charged with a criminal offence shall be presumedinnocent until proved guilty according to law
bull 3 Everyone charged with a criminal offence has the followingminimum rights
bull (a) to be informed promptly in a language which he understands andin detail of the nature and cause of the accusation against him
bull (b) to have adequate time and facilities for the preparation of hisdefence
bull (c) to defend himself in person or through legal assistance of his ownchoosing [hellip]
bull (d) to examine or have examined witnesses against him and to obtainthe attendance and examination of witnesses on his behalf under thesame conditions as witnesses against him
bull (e) to have the free assistance of an interpreter if he cannot speak thelanguage
Art 6 ndashvery important Article
bull Case law of the European Court of Human Rights(ECtHR)
bull no justification for interpreting Article 6 sect 1restrictively (Perez v France case [GC] No 4728799
2004 02 12)
bull very often invoked by the applicants before theECtHR from different perspectives (ie fair trialrequirement access to a court defence rightsequality of arms admissioncontestation of anadmitted evidence etc)
Subsidiarity and the Role of the ECtHR
bull It is not the European Courtlsquos function todeal with errors of fact or law allegedlycommitted by national courts or tosubstitute their own assessment unlessthey may have infringed the rights andfreedoms protected by the Convention(Garciacutea Ruiz v Spain [GC] no 3054496 sectsect 28-29 ECHR1999-I)
bull Art 19 of the ECHR ndash the unique Role of theCourt
The Role of the Court
bull The ECtHR is not an appellate courtbull Art 6 does not allow the ECtHR to act as
a court of fourth instance it cannotreplace national courts
bull (Bykov v Russia [GC] 1003 2009 sect 88)
bull Art 6 establishes a very strongpresumption of facts as found bydomestic courts unless the domesticproceedings breached the essence of theArt 6 of ECHR
Admission of evidence
bull General principles Mantovanelli v France No2149793 18031997 sect 34
bull The admissibility of evidence and the way it should be assessedare primarily matters for regulation by national law and thenational courts (Garcia Ruiz v Spain [GC]
bull The Convention does not lay down rules on evidence as such
bull The Court therefore cannot exclude as a matter of principle andin the abstract that evidence obtained in breach of provisions ofdomestic law may be admitted
bull It is for the national courts to assess the evidence they haveobtained and the relevance of any evidence that a party wishesto have produced
bull
Mantovanelli v Franceprinciples
bull 33 [] one of the elements of a fair hearing under Art 6-1 is theright to adversarial proceedings
bull each party must in principle have the opportunity not only to makeknown any evidence but also to have knowledge of and comment onall evidence adduced with a view to influencing the courtrsquos decision(Nideroumlst-Huber v Switzerland judgment 18021997 sect 24)
bull where an expert has been appointed by a court the parties must in allinstances be able to attend the interviews held by him or to be shownthe documents he has taken into account
bull What is essential is that the parties should be able toparticipate properly in the proceedings before the tribunal(see mutatis mutandis the Kerojaumlrvi v Finland judgment of 19 July1995 sect 42)
bull 34 [] The Court has to ascertain whether the proceedingsconsidered as a whole including the way in which the evidence wastaken were fair under Art 6-1 (see mutatis mutandis the Schenk vSwitzerland judgment 120788 sect 46)
This presentation focuses on such aspectsunder Art 6
bull Fairness of the proceedings as whole
bull Duties of national courts in admitting evidence
bull Disclosure of evidence
bull Admission of sole andor decisive evidence
bull Admission of evidence obtained by the police [active]incitement to commit a crime
bull Admission of secret evidence
bull Admission of evidence obtained in violation of Article 3 ofthe Convention (prohibition of torture inhuman anddegrating treatment)
bull Admission of evidence obtained in violation of Article 8 ofthe Convention (respect for private and family life home andcorrespondence)
Rinkūnienė v Lithuania inadmissible (No 5577908
011209)Assessment of the proceedings as whole
bull Medical negligence casedeath of theapplicantlsquos husband
bull The applicant complained about the refusal of the domesticcourts to order a supplementary expert examination inbreach of Art 6 sect 1
bull two expert reports were contradictory a new expert opinionwas requested (the third one) into the circumstances of herhusbandrsquos death
bull The ECtHR Lithuanian courts based their conclusions on twoexpert reports and four experts were summoned to courts
bull They testified before both the first-instance and appellatecourts The Court does not find that the applicant was placedat a procedural disadvantage vis-agrave-vis the medicalinstitutions or VDS
Rinkūnienėv Lithuania inadmissible (No 5577908 1 December 2009)
bull The assessment of evidence and its probative value areprimarily a matter for the domestic authorities
bull The Court is not competent to deal with an applicationalleging that errors of fact or law have been committed bydomestic courts except where it considers that such errorsmight have involved a possible violation of the rights of theConvention (Erikson v Italy (dec) no 3790097 261099)
bull The Court cannot conclude that the Lithuanian courtsrestricted the applicantrsquos opportunities to prove her case orthat they assessed the evidence before them arbitrarily
bull Overall even if the Court of Appealrsquos silence as regards athird expert report could be regarded as a procedural flawthis aspect alone had NOT reduced the effectiveness of theexamination of the doctorsrsquo responsibility
Article 6 Evidence
bull Article 6 of the Convention does not lay downany rules on the admissibility of evidence assuch which is primarily a matter for regulationunder national law(Jalloh v Germany [GC] no 5481000 sectsect 94-96 ECHR 2006-IX)
bull The Role of the ECtHR is to decide whether theproceedings as a whole including the way inwhich the evidence was obtained were fair(assessment of an overall fairness of theproceedings)
Equality of armsadversarial proceedings
bull Equality of arms ndash equal procedural ability tostate the case
bull Adversarial proceedings ndash to have an accessand a possibility to comment at trial on theobservations filed or evidence adduced by theother party
bullBoth requirements ndash constituent partof Art 6 (fair trial)
Fair proceedingsuse of evidence
bull In determining whether the proceedings as awhole were fair the rights of the defenceshould be regarded
bull also the interests of the public and the victimsthat crime is properly prosecuted (see Gaumlfgen v
Germany [GC] no 2297805 sect 175 ECHR 2010) and
bull The applicants should have the opportunity ofchallenging the authenticity of the evidenceand of opposing its use (Schenk Khan cases)
Evidence requirement
bull the quality of the evidence must be takeninto consideration including whether thecircumstances in which it was obtainedcast doubt on its reliability or accuracy
bull where the evidence is very strong andthere is no risk of its being unreliable theneed for supporting evidence iscorrespondingly weaker (Khan sectsect 35 and 37
and Allan sect 43)
Jalloh v Germany [GC] No 548100111072006
bull Criminal proceedings - Article 6-1 Fair hearing
bull Use in evidence of a plastic bag containing drugs obtained by the
forcible administration of emetics violationbull Even if it had not been the authoritiesrsquo intention to inflict pain and
suffering on the applicant the evidence had been obtained by ameasure which breached fundamental rights of the Convention
bull Furthermore the drugs obtained by the impugned measure hadproved the decisive element in securing the applicantrsquos convictionLastly the public interest in securing the applicantrsquos convictioncould not justify using such evidence at the trial
bull Accordingly the use in evidence of the drugs obtainedby the forcible administration of emetics to theapplicant had rendered his trial as a whole unfair
Disclosure of evidence
bull The entitlement to disclosure of relevantevidence is not an absolute right
bull in any court proceedings there may becompeting interests (ie national securitythe need to protect witnesses keep secretpolice methods of investigation of crime or to
safeguard an important public interest etc)
which must be weighed against the rightsof the defence
Disclosure of evidence
bull [Some] measures restricting therights of the defence must be strictlynecessary
bull [and] must be sufficientlycounterbalanced by the proceduresfollowed by the judicial authorities
(Jasper v the United Kingdom [GC] no 2705295 sect 5216 February 2000)
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Art 6 para 2 3 of the ECHRcriminal cases
bull 2 Everyone charged with a criminal offence shall be presumedinnocent until proved guilty according to law
bull 3 Everyone charged with a criminal offence has the followingminimum rights
bull (a) to be informed promptly in a language which he understands andin detail of the nature and cause of the accusation against him
bull (b) to have adequate time and facilities for the preparation of hisdefence
bull (c) to defend himself in person or through legal assistance of his ownchoosing [hellip]
bull (d) to examine or have examined witnesses against him and to obtainthe attendance and examination of witnesses on his behalf under thesame conditions as witnesses against him
bull (e) to have the free assistance of an interpreter if he cannot speak thelanguage
Art 6 ndashvery important Article
bull Case law of the European Court of Human Rights(ECtHR)
bull no justification for interpreting Article 6 sect 1restrictively (Perez v France case [GC] No 4728799
2004 02 12)
bull very often invoked by the applicants before theECtHR from different perspectives (ie fair trialrequirement access to a court defence rightsequality of arms admissioncontestation of anadmitted evidence etc)
Subsidiarity and the Role of the ECtHR
bull It is not the European Courtlsquos function todeal with errors of fact or law allegedlycommitted by national courts or tosubstitute their own assessment unlessthey may have infringed the rights andfreedoms protected by the Convention(Garciacutea Ruiz v Spain [GC] no 3054496 sectsect 28-29 ECHR1999-I)
bull Art 19 of the ECHR ndash the unique Role of theCourt
The Role of the Court
bull The ECtHR is not an appellate courtbull Art 6 does not allow the ECtHR to act as
a court of fourth instance it cannotreplace national courts
bull (Bykov v Russia [GC] 1003 2009 sect 88)
bull Art 6 establishes a very strongpresumption of facts as found bydomestic courts unless the domesticproceedings breached the essence of theArt 6 of ECHR
Admission of evidence
bull General principles Mantovanelli v France No2149793 18031997 sect 34
bull The admissibility of evidence and the way it should be assessedare primarily matters for regulation by national law and thenational courts (Garcia Ruiz v Spain [GC]
bull The Convention does not lay down rules on evidence as such
bull The Court therefore cannot exclude as a matter of principle andin the abstract that evidence obtained in breach of provisions ofdomestic law may be admitted
bull It is for the national courts to assess the evidence they haveobtained and the relevance of any evidence that a party wishesto have produced
bull
Mantovanelli v Franceprinciples
bull 33 [] one of the elements of a fair hearing under Art 6-1 is theright to adversarial proceedings
bull each party must in principle have the opportunity not only to makeknown any evidence but also to have knowledge of and comment onall evidence adduced with a view to influencing the courtrsquos decision(Nideroumlst-Huber v Switzerland judgment 18021997 sect 24)
bull where an expert has been appointed by a court the parties must in allinstances be able to attend the interviews held by him or to be shownthe documents he has taken into account
bull What is essential is that the parties should be able toparticipate properly in the proceedings before the tribunal(see mutatis mutandis the Kerojaumlrvi v Finland judgment of 19 July1995 sect 42)
bull 34 [] The Court has to ascertain whether the proceedingsconsidered as a whole including the way in which the evidence wastaken were fair under Art 6-1 (see mutatis mutandis the Schenk vSwitzerland judgment 120788 sect 46)
This presentation focuses on such aspectsunder Art 6
bull Fairness of the proceedings as whole
bull Duties of national courts in admitting evidence
bull Disclosure of evidence
bull Admission of sole andor decisive evidence
bull Admission of evidence obtained by the police [active]incitement to commit a crime
bull Admission of secret evidence
bull Admission of evidence obtained in violation of Article 3 ofthe Convention (prohibition of torture inhuman anddegrating treatment)
bull Admission of evidence obtained in violation of Article 8 ofthe Convention (respect for private and family life home andcorrespondence)
Rinkūnienė v Lithuania inadmissible (No 5577908
011209)Assessment of the proceedings as whole
bull Medical negligence casedeath of theapplicantlsquos husband
bull The applicant complained about the refusal of the domesticcourts to order a supplementary expert examination inbreach of Art 6 sect 1
bull two expert reports were contradictory a new expert opinionwas requested (the third one) into the circumstances of herhusbandrsquos death
bull The ECtHR Lithuanian courts based their conclusions on twoexpert reports and four experts were summoned to courts
bull They testified before both the first-instance and appellatecourts The Court does not find that the applicant was placedat a procedural disadvantage vis-agrave-vis the medicalinstitutions or VDS
Rinkūnienėv Lithuania inadmissible (No 5577908 1 December 2009)
bull The assessment of evidence and its probative value areprimarily a matter for the domestic authorities
bull The Court is not competent to deal with an applicationalleging that errors of fact or law have been committed bydomestic courts except where it considers that such errorsmight have involved a possible violation of the rights of theConvention (Erikson v Italy (dec) no 3790097 261099)
bull The Court cannot conclude that the Lithuanian courtsrestricted the applicantrsquos opportunities to prove her case orthat they assessed the evidence before them arbitrarily
bull Overall even if the Court of Appealrsquos silence as regards athird expert report could be regarded as a procedural flawthis aspect alone had NOT reduced the effectiveness of theexamination of the doctorsrsquo responsibility
Article 6 Evidence
bull Article 6 of the Convention does not lay downany rules on the admissibility of evidence assuch which is primarily a matter for regulationunder national law(Jalloh v Germany [GC] no 5481000 sectsect 94-96 ECHR 2006-IX)
bull The Role of the ECtHR is to decide whether theproceedings as a whole including the way inwhich the evidence was obtained were fair(assessment of an overall fairness of theproceedings)
Equality of armsadversarial proceedings
bull Equality of arms ndash equal procedural ability tostate the case
bull Adversarial proceedings ndash to have an accessand a possibility to comment at trial on theobservations filed or evidence adduced by theother party
bullBoth requirements ndash constituent partof Art 6 (fair trial)
Fair proceedingsuse of evidence
bull In determining whether the proceedings as awhole were fair the rights of the defenceshould be regarded
bull also the interests of the public and the victimsthat crime is properly prosecuted (see Gaumlfgen v
Germany [GC] no 2297805 sect 175 ECHR 2010) and
bull The applicants should have the opportunity ofchallenging the authenticity of the evidenceand of opposing its use (Schenk Khan cases)
Evidence requirement
bull the quality of the evidence must be takeninto consideration including whether thecircumstances in which it was obtainedcast doubt on its reliability or accuracy
bull where the evidence is very strong andthere is no risk of its being unreliable theneed for supporting evidence iscorrespondingly weaker (Khan sectsect 35 and 37
and Allan sect 43)
Jalloh v Germany [GC] No 548100111072006
bull Criminal proceedings - Article 6-1 Fair hearing
bull Use in evidence of a plastic bag containing drugs obtained by the
forcible administration of emetics violationbull Even if it had not been the authoritiesrsquo intention to inflict pain and
suffering on the applicant the evidence had been obtained by ameasure which breached fundamental rights of the Convention
bull Furthermore the drugs obtained by the impugned measure hadproved the decisive element in securing the applicantrsquos convictionLastly the public interest in securing the applicantrsquos convictioncould not justify using such evidence at the trial
bull Accordingly the use in evidence of the drugs obtainedby the forcible administration of emetics to theapplicant had rendered his trial as a whole unfair
Disclosure of evidence
bull The entitlement to disclosure of relevantevidence is not an absolute right
bull in any court proceedings there may becompeting interests (ie national securitythe need to protect witnesses keep secretpolice methods of investigation of crime or to
safeguard an important public interest etc)
which must be weighed against the rightsof the defence
Disclosure of evidence
bull [Some] measures restricting therights of the defence must be strictlynecessary
bull [and] must be sufficientlycounterbalanced by the proceduresfollowed by the judicial authorities
(Jasper v the United Kingdom [GC] no 2705295 sect 5216 February 2000)
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Art 6 ndashvery important Article
bull Case law of the European Court of Human Rights(ECtHR)
bull no justification for interpreting Article 6 sect 1restrictively (Perez v France case [GC] No 4728799
2004 02 12)
bull very often invoked by the applicants before theECtHR from different perspectives (ie fair trialrequirement access to a court defence rightsequality of arms admissioncontestation of anadmitted evidence etc)
Subsidiarity and the Role of the ECtHR
bull It is not the European Courtlsquos function todeal with errors of fact or law allegedlycommitted by national courts or tosubstitute their own assessment unlessthey may have infringed the rights andfreedoms protected by the Convention(Garciacutea Ruiz v Spain [GC] no 3054496 sectsect 28-29 ECHR1999-I)
bull Art 19 of the ECHR ndash the unique Role of theCourt
The Role of the Court
bull The ECtHR is not an appellate courtbull Art 6 does not allow the ECtHR to act as
a court of fourth instance it cannotreplace national courts
bull (Bykov v Russia [GC] 1003 2009 sect 88)
bull Art 6 establishes a very strongpresumption of facts as found bydomestic courts unless the domesticproceedings breached the essence of theArt 6 of ECHR
Admission of evidence
bull General principles Mantovanelli v France No2149793 18031997 sect 34
bull The admissibility of evidence and the way it should be assessedare primarily matters for regulation by national law and thenational courts (Garcia Ruiz v Spain [GC]
bull The Convention does not lay down rules on evidence as such
bull The Court therefore cannot exclude as a matter of principle andin the abstract that evidence obtained in breach of provisions ofdomestic law may be admitted
bull It is for the national courts to assess the evidence they haveobtained and the relevance of any evidence that a party wishesto have produced
bull
Mantovanelli v Franceprinciples
bull 33 [] one of the elements of a fair hearing under Art 6-1 is theright to adversarial proceedings
bull each party must in principle have the opportunity not only to makeknown any evidence but also to have knowledge of and comment onall evidence adduced with a view to influencing the courtrsquos decision(Nideroumlst-Huber v Switzerland judgment 18021997 sect 24)
bull where an expert has been appointed by a court the parties must in allinstances be able to attend the interviews held by him or to be shownthe documents he has taken into account
bull What is essential is that the parties should be able toparticipate properly in the proceedings before the tribunal(see mutatis mutandis the Kerojaumlrvi v Finland judgment of 19 July1995 sect 42)
bull 34 [] The Court has to ascertain whether the proceedingsconsidered as a whole including the way in which the evidence wastaken were fair under Art 6-1 (see mutatis mutandis the Schenk vSwitzerland judgment 120788 sect 46)
This presentation focuses on such aspectsunder Art 6
bull Fairness of the proceedings as whole
bull Duties of national courts in admitting evidence
bull Disclosure of evidence
bull Admission of sole andor decisive evidence
bull Admission of evidence obtained by the police [active]incitement to commit a crime
bull Admission of secret evidence
bull Admission of evidence obtained in violation of Article 3 ofthe Convention (prohibition of torture inhuman anddegrating treatment)
bull Admission of evidence obtained in violation of Article 8 ofthe Convention (respect for private and family life home andcorrespondence)
Rinkūnienė v Lithuania inadmissible (No 5577908
011209)Assessment of the proceedings as whole
bull Medical negligence casedeath of theapplicantlsquos husband
bull The applicant complained about the refusal of the domesticcourts to order a supplementary expert examination inbreach of Art 6 sect 1
bull two expert reports were contradictory a new expert opinionwas requested (the third one) into the circumstances of herhusbandrsquos death
bull The ECtHR Lithuanian courts based their conclusions on twoexpert reports and four experts were summoned to courts
bull They testified before both the first-instance and appellatecourts The Court does not find that the applicant was placedat a procedural disadvantage vis-agrave-vis the medicalinstitutions or VDS
Rinkūnienėv Lithuania inadmissible (No 5577908 1 December 2009)
bull The assessment of evidence and its probative value areprimarily a matter for the domestic authorities
bull The Court is not competent to deal with an applicationalleging that errors of fact or law have been committed bydomestic courts except where it considers that such errorsmight have involved a possible violation of the rights of theConvention (Erikson v Italy (dec) no 3790097 261099)
bull The Court cannot conclude that the Lithuanian courtsrestricted the applicantrsquos opportunities to prove her case orthat they assessed the evidence before them arbitrarily
bull Overall even if the Court of Appealrsquos silence as regards athird expert report could be regarded as a procedural flawthis aspect alone had NOT reduced the effectiveness of theexamination of the doctorsrsquo responsibility
Article 6 Evidence
bull Article 6 of the Convention does not lay downany rules on the admissibility of evidence assuch which is primarily a matter for regulationunder national law(Jalloh v Germany [GC] no 5481000 sectsect 94-96 ECHR 2006-IX)
bull The Role of the ECtHR is to decide whether theproceedings as a whole including the way inwhich the evidence was obtained were fair(assessment of an overall fairness of theproceedings)
Equality of armsadversarial proceedings
bull Equality of arms ndash equal procedural ability tostate the case
bull Adversarial proceedings ndash to have an accessand a possibility to comment at trial on theobservations filed or evidence adduced by theother party
bullBoth requirements ndash constituent partof Art 6 (fair trial)
Fair proceedingsuse of evidence
bull In determining whether the proceedings as awhole were fair the rights of the defenceshould be regarded
bull also the interests of the public and the victimsthat crime is properly prosecuted (see Gaumlfgen v
Germany [GC] no 2297805 sect 175 ECHR 2010) and
bull The applicants should have the opportunity ofchallenging the authenticity of the evidenceand of opposing its use (Schenk Khan cases)
Evidence requirement
bull the quality of the evidence must be takeninto consideration including whether thecircumstances in which it was obtainedcast doubt on its reliability or accuracy
bull where the evidence is very strong andthere is no risk of its being unreliable theneed for supporting evidence iscorrespondingly weaker (Khan sectsect 35 and 37
and Allan sect 43)
Jalloh v Germany [GC] No 548100111072006
bull Criminal proceedings - Article 6-1 Fair hearing
bull Use in evidence of a plastic bag containing drugs obtained by the
forcible administration of emetics violationbull Even if it had not been the authoritiesrsquo intention to inflict pain and
suffering on the applicant the evidence had been obtained by ameasure which breached fundamental rights of the Convention
bull Furthermore the drugs obtained by the impugned measure hadproved the decisive element in securing the applicantrsquos convictionLastly the public interest in securing the applicantrsquos convictioncould not justify using such evidence at the trial
bull Accordingly the use in evidence of the drugs obtainedby the forcible administration of emetics to theapplicant had rendered his trial as a whole unfair
Disclosure of evidence
bull The entitlement to disclosure of relevantevidence is not an absolute right
bull in any court proceedings there may becompeting interests (ie national securitythe need to protect witnesses keep secretpolice methods of investigation of crime or to
safeguard an important public interest etc)
which must be weighed against the rightsof the defence
Disclosure of evidence
bull [Some] measures restricting therights of the defence must be strictlynecessary
bull [and] must be sufficientlycounterbalanced by the proceduresfollowed by the judicial authorities
(Jasper v the United Kingdom [GC] no 2705295 sect 5216 February 2000)
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Subsidiarity and the Role of the ECtHR
bull It is not the European Courtlsquos function todeal with errors of fact or law allegedlycommitted by national courts or tosubstitute their own assessment unlessthey may have infringed the rights andfreedoms protected by the Convention(Garciacutea Ruiz v Spain [GC] no 3054496 sectsect 28-29 ECHR1999-I)
bull Art 19 of the ECHR ndash the unique Role of theCourt
The Role of the Court
bull The ECtHR is not an appellate courtbull Art 6 does not allow the ECtHR to act as
a court of fourth instance it cannotreplace national courts
bull (Bykov v Russia [GC] 1003 2009 sect 88)
bull Art 6 establishes a very strongpresumption of facts as found bydomestic courts unless the domesticproceedings breached the essence of theArt 6 of ECHR
Admission of evidence
bull General principles Mantovanelli v France No2149793 18031997 sect 34
bull The admissibility of evidence and the way it should be assessedare primarily matters for regulation by national law and thenational courts (Garcia Ruiz v Spain [GC]
bull The Convention does not lay down rules on evidence as such
bull The Court therefore cannot exclude as a matter of principle andin the abstract that evidence obtained in breach of provisions ofdomestic law may be admitted
bull It is for the national courts to assess the evidence they haveobtained and the relevance of any evidence that a party wishesto have produced
bull
Mantovanelli v Franceprinciples
bull 33 [] one of the elements of a fair hearing under Art 6-1 is theright to adversarial proceedings
bull each party must in principle have the opportunity not only to makeknown any evidence but also to have knowledge of and comment onall evidence adduced with a view to influencing the courtrsquos decision(Nideroumlst-Huber v Switzerland judgment 18021997 sect 24)
bull where an expert has been appointed by a court the parties must in allinstances be able to attend the interviews held by him or to be shownthe documents he has taken into account
bull What is essential is that the parties should be able toparticipate properly in the proceedings before the tribunal(see mutatis mutandis the Kerojaumlrvi v Finland judgment of 19 July1995 sect 42)
bull 34 [] The Court has to ascertain whether the proceedingsconsidered as a whole including the way in which the evidence wastaken were fair under Art 6-1 (see mutatis mutandis the Schenk vSwitzerland judgment 120788 sect 46)
This presentation focuses on such aspectsunder Art 6
bull Fairness of the proceedings as whole
bull Duties of national courts in admitting evidence
bull Disclosure of evidence
bull Admission of sole andor decisive evidence
bull Admission of evidence obtained by the police [active]incitement to commit a crime
bull Admission of secret evidence
bull Admission of evidence obtained in violation of Article 3 ofthe Convention (prohibition of torture inhuman anddegrating treatment)
bull Admission of evidence obtained in violation of Article 8 ofthe Convention (respect for private and family life home andcorrespondence)
Rinkūnienė v Lithuania inadmissible (No 5577908
011209)Assessment of the proceedings as whole
bull Medical negligence casedeath of theapplicantlsquos husband
bull The applicant complained about the refusal of the domesticcourts to order a supplementary expert examination inbreach of Art 6 sect 1
bull two expert reports were contradictory a new expert opinionwas requested (the third one) into the circumstances of herhusbandrsquos death
bull The ECtHR Lithuanian courts based their conclusions on twoexpert reports and four experts were summoned to courts
bull They testified before both the first-instance and appellatecourts The Court does not find that the applicant was placedat a procedural disadvantage vis-agrave-vis the medicalinstitutions or VDS
Rinkūnienėv Lithuania inadmissible (No 5577908 1 December 2009)
bull The assessment of evidence and its probative value areprimarily a matter for the domestic authorities
bull The Court is not competent to deal with an applicationalleging that errors of fact or law have been committed bydomestic courts except where it considers that such errorsmight have involved a possible violation of the rights of theConvention (Erikson v Italy (dec) no 3790097 261099)
bull The Court cannot conclude that the Lithuanian courtsrestricted the applicantrsquos opportunities to prove her case orthat they assessed the evidence before them arbitrarily
bull Overall even if the Court of Appealrsquos silence as regards athird expert report could be regarded as a procedural flawthis aspect alone had NOT reduced the effectiveness of theexamination of the doctorsrsquo responsibility
Article 6 Evidence
bull Article 6 of the Convention does not lay downany rules on the admissibility of evidence assuch which is primarily a matter for regulationunder national law(Jalloh v Germany [GC] no 5481000 sectsect 94-96 ECHR 2006-IX)
bull The Role of the ECtHR is to decide whether theproceedings as a whole including the way inwhich the evidence was obtained were fair(assessment of an overall fairness of theproceedings)
Equality of armsadversarial proceedings
bull Equality of arms ndash equal procedural ability tostate the case
bull Adversarial proceedings ndash to have an accessand a possibility to comment at trial on theobservations filed or evidence adduced by theother party
bullBoth requirements ndash constituent partof Art 6 (fair trial)
Fair proceedingsuse of evidence
bull In determining whether the proceedings as awhole were fair the rights of the defenceshould be regarded
bull also the interests of the public and the victimsthat crime is properly prosecuted (see Gaumlfgen v
Germany [GC] no 2297805 sect 175 ECHR 2010) and
bull The applicants should have the opportunity ofchallenging the authenticity of the evidenceand of opposing its use (Schenk Khan cases)
Evidence requirement
bull the quality of the evidence must be takeninto consideration including whether thecircumstances in which it was obtainedcast doubt on its reliability or accuracy
bull where the evidence is very strong andthere is no risk of its being unreliable theneed for supporting evidence iscorrespondingly weaker (Khan sectsect 35 and 37
and Allan sect 43)
Jalloh v Germany [GC] No 548100111072006
bull Criminal proceedings - Article 6-1 Fair hearing
bull Use in evidence of a plastic bag containing drugs obtained by the
forcible administration of emetics violationbull Even if it had not been the authoritiesrsquo intention to inflict pain and
suffering on the applicant the evidence had been obtained by ameasure which breached fundamental rights of the Convention
bull Furthermore the drugs obtained by the impugned measure hadproved the decisive element in securing the applicantrsquos convictionLastly the public interest in securing the applicantrsquos convictioncould not justify using such evidence at the trial
bull Accordingly the use in evidence of the drugs obtainedby the forcible administration of emetics to theapplicant had rendered his trial as a whole unfair
Disclosure of evidence
bull The entitlement to disclosure of relevantevidence is not an absolute right
bull in any court proceedings there may becompeting interests (ie national securitythe need to protect witnesses keep secretpolice methods of investigation of crime or to
safeguard an important public interest etc)
which must be weighed against the rightsof the defence
Disclosure of evidence
bull [Some] measures restricting therights of the defence must be strictlynecessary
bull [and] must be sufficientlycounterbalanced by the proceduresfollowed by the judicial authorities
(Jasper v the United Kingdom [GC] no 2705295 sect 5216 February 2000)
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
The Role of the Court
bull The ECtHR is not an appellate courtbull Art 6 does not allow the ECtHR to act as
a court of fourth instance it cannotreplace national courts
bull (Bykov v Russia [GC] 1003 2009 sect 88)
bull Art 6 establishes a very strongpresumption of facts as found bydomestic courts unless the domesticproceedings breached the essence of theArt 6 of ECHR
Admission of evidence
bull General principles Mantovanelli v France No2149793 18031997 sect 34
bull The admissibility of evidence and the way it should be assessedare primarily matters for regulation by national law and thenational courts (Garcia Ruiz v Spain [GC]
bull The Convention does not lay down rules on evidence as such
bull The Court therefore cannot exclude as a matter of principle andin the abstract that evidence obtained in breach of provisions ofdomestic law may be admitted
bull It is for the national courts to assess the evidence they haveobtained and the relevance of any evidence that a party wishesto have produced
bull
Mantovanelli v Franceprinciples
bull 33 [] one of the elements of a fair hearing under Art 6-1 is theright to adversarial proceedings
bull each party must in principle have the opportunity not only to makeknown any evidence but also to have knowledge of and comment onall evidence adduced with a view to influencing the courtrsquos decision(Nideroumlst-Huber v Switzerland judgment 18021997 sect 24)
bull where an expert has been appointed by a court the parties must in allinstances be able to attend the interviews held by him or to be shownthe documents he has taken into account
bull What is essential is that the parties should be able toparticipate properly in the proceedings before the tribunal(see mutatis mutandis the Kerojaumlrvi v Finland judgment of 19 July1995 sect 42)
bull 34 [] The Court has to ascertain whether the proceedingsconsidered as a whole including the way in which the evidence wastaken were fair under Art 6-1 (see mutatis mutandis the Schenk vSwitzerland judgment 120788 sect 46)
This presentation focuses on such aspectsunder Art 6
bull Fairness of the proceedings as whole
bull Duties of national courts in admitting evidence
bull Disclosure of evidence
bull Admission of sole andor decisive evidence
bull Admission of evidence obtained by the police [active]incitement to commit a crime
bull Admission of secret evidence
bull Admission of evidence obtained in violation of Article 3 ofthe Convention (prohibition of torture inhuman anddegrating treatment)
bull Admission of evidence obtained in violation of Article 8 ofthe Convention (respect for private and family life home andcorrespondence)
Rinkūnienė v Lithuania inadmissible (No 5577908
011209)Assessment of the proceedings as whole
bull Medical negligence casedeath of theapplicantlsquos husband
bull The applicant complained about the refusal of the domesticcourts to order a supplementary expert examination inbreach of Art 6 sect 1
bull two expert reports were contradictory a new expert opinionwas requested (the third one) into the circumstances of herhusbandrsquos death
bull The ECtHR Lithuanian courts based their conclusions on twoexpert reports and four experts were summoned to courts
bull They testified before both the first-instance and appellatecourts The Court does not find that the applicant was placedat a procedural disadvantage vis-agrave-vis the medicalinstitutions or VDS
Rinkūnienėv Lithuania inadmissible (No 5577908 1 December 2009)
bull The assessment of evidence and its probative value areprimarily a matter for the domestic authorities
bull The Court is not competent to deal with an applicationalleging that errors of fact or law have been committed bydomestic courts except where it considers that such errorsmight have involved a possible violation of the rights of theConvention (Erikson v Italy (dec) no 3790097 261099)
bull The Court cannot conclude that the Lithuanian courtsrestricted the applicantrsquos opportunities to prove her case orthat they assessed the evidence before them arbitrarily
bull Overall even if the Court of Appealrsquos silence as regards athird expert report could be regarded as a procedural flawthis aspect alone had NOT reduced the effectiveness of theexamination of the doctorsrsquo responsibility
Article 6 Evidence
bull Article 6 of the Convention does not lay downany rules on the admissibility of evidence assuch which is primarily a matter for regulationunder national law(Jalloh v Germany [GC] no 5481000 sectsect 94-96 ECHR 2006-IX)
bull The Role of the ECtHR is to decide whether theproceedings as a whole including the way inwhich the evidence was obtained were fair(assessment of an overall fairness of theproceedings)
Equality of armsadversarial proceedings
bull Equality of arms ndash equal procedural ability tostate the case
bull Adversarial proceedings ndash to have an accessand a possibility to comment at trial on theobservations filed or evidence adduced by theother party
bullBoth requirements ndash constituent partof Art 6 (fair trial)
Fair proceedingsuse of evidence
bull In determining whether the proceedings as awhole were fair the rights of the defenceshould be regarded
bull also the interests of the public and the victimsthat crime is properly prosecuted (see Gaumlfgen v
Germany [GC] no 2297805 sect 175 ECHR 2010) and
bull The applicants should have the opportunity ofchallenging the authenticity of the evidenceand of opposing its use (Schenk Khan cases)
Evidence requirement
bull the quality of the evidence must be takeninto consideration including whether thecircumstances in which it was obtainedcast doubt on its reliability or accuracy
bull where the evidence is very strong andthere is no risk of its being unreliable theneed for supporting evidence iscorrespondingly weaker (Khan sectsect 35 and 37
and Allan sect 43)
Jalloh v Germany [GC] No 548100111072006
bull Criminal proceedings - Article 6-1 Fair hearing
bull Use in evidence of a plastic bag containing drugs obtained by the
forcible administration of emetics violationbull Even if it had not been the authoritiesrsquo intention to inflict pain and
suffering on the applicant the evidence had been obtained by ameasure which breached fundamental rights of the Convention
bull Furthermore the drugs obtained by the impugned measure hadproved the decisive element in securing the applicantrsquos convictionLastly the public interest in securing the applicantrsquos convictioncould not justify using such evidence at the trial
bull Accordingly the use in evidence of the drugs obtainedby the forcible administration of emetics to theapplicant had rendered his trial as a whole unfair
Disclosure of evidence
bull The entitlement to disclosure of relevantevidence is not an absolute right
bull in any court proceedings there may becompeting interests (ie national securitythe need to protect witnesses keep secretpolice methods of investigation of crime or to
safeguard an important public interest etc)
which must be weighed against the rightsof the defence
Disclosure of evidence
bull [Some] measures restricting therights of the defence must be strictlynecessary
bull [and] must be sufficientlycounterbalanced by the proceduresfollowed by the judicial authorities
(Jasper v the United Kingdom [GC] no 2705295 sect 5216 February 2000)
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Admission of evidence
bull General principles Mantovanelli v France No2149793 18031997 sect 34
bull The admissibility of evidence and the way it should be assessedare primarily matters for regulation by national law and thenational courts (Garcia Ruiz v Spain [GC]
bull The Convention does not lay down rules on evidence as such
bull The Court therefore cannot exclude as a matter of principle andin the abstract that evidence obtained in breach of provisions ofdomestic law may be admitted
bull It is for the national courts to assess the evidence they haveobtained and the relevance of any evidence that a party wishesto have produced
bull
Mantovanelli v Franceprinciples
bull 33 [] one of the elements of a fair hearing under Art 6-1 is theright to adversarial proceedings
bull each party must in principle have the opportunity not only to makeknown any evidence but also to have knowledge of and comment onall evidence adduced with a view to influencing the courtrsquos decision(Nideroumlst-Huber v Switzerland judgment 18021997 sect 24)
bull where an expert has been appointed by a court the parties must in allinstances be able to attend the interviews held by him or to be shownthe documents he has taken into account
bull What is essential is that the parties should be able toparticipate properly in the proceedings before the tribunal(see mutatis mutandis the Kerojaumlrvi v Finland judgment of 19 July1995 sect 42)
bull 34 [] The Court has to ascertain whether the proceedingsconsidered as a whole including the way in which the evidence wastaken were fair under Art 6-1 (see mutatis mutandis the Schenk vSwitzerland judgment 120788 sect 46)
This presentation focuses on such aspectsunder Art 6
bull Fairness of the proceedings as whole
bull Duties of national courts in admitting evidence
bull Disclosure of evidence
bull Admission of sole andor decisive evidence
bull Admission of evidence obtained by the police [active]incitement to commit a crime
bull Admission of secret evidence
bull Admission of evidence obtained in violation of Article 3 ofthe Convention (prohibition of torture inhuman anddegrating treatment)
bull Admission of evidence obtained in violation of Article 8 ofthe Convention (respect for private and family life home andcorrespondence)
Rinkūnienė v Lithuania inadmissible (No 5577908
011209)Assessment of the proceedings as whole
bull Medical negligence casedeath of theapplicantlsquos husband
bull The applicant complained about the refusal of the domesticcourts to order a supplementary expert examination inbreach of Art 6 sect 1
bull two expert reports were contradictory a new expert opinionwas requested (the third one) into the circumstances of herhusbandrsquos death
bull The ECtHR Lithuanian courts based their conclusions on twoexpert reports and four experts were summoned to courts
bull They testified before both the first-instance and appellatecourts The Court does not find that the applicant was placedat a procedural disadvantage vis-agrave-vis the medicalinstitutions or VDS
Rinkūnienėv Lithuania inadmissible (No 5577908 1 December 2009)
bull The assessment of evidence and its probative value areprimarily a matter for the domestic authorities
bull The Court is not competent to deal with an applicationalleging that errors of fact or law have been committed bydomestic courts except where it considers that such errorsmight have involved a possible violation of the rights of theConvention (Erikson v Italy (dec) no 3790097 261099)
bull The Court cannot conclude that the Lithuanian courtsrestricted the applicantrsquos opportunities to prove her case orthat they assessed the evidence before them arbitrarily
bull Overall even if the Court of Appealrsquos silence as regards athird expert report could be regarded as a procedural flawthis aspect alone had NOT reduced the effectiveness of theexamination of the doctorsrsquo responsibility
Article 6 Evidence
bull Article 6 of the Convention does not lay downany rules on the admissibility of evidence assuch which is primarily a matter for regulationunder national law(Jalloh v Germany [GC] no 5481000 sectsect 94-96 ECHR 2006-IX)
bull The Role of the ECtHR is to decide whether theproceedings as a whole including the way inwhich the evidence was obtained were fair(assessment of an overall fairness of theproceedings)
Equality of armsadversarial proceedings
bull Equality of arms ndash equal procedural ability tostate the case
bull Adversarial proceedings ndash to have an accessand a possibility to comment at trial on theobservations filed or evidence adduced by theother party
bullBoth requirements ndash constituent partof Art 6 (fair trial)
Fair proceedingsuse of evidence
bull In determining whether the proceedings as awhole were fair the rights of the defenceshould be regarded
bull also the interests of the public and the victimsthat crime is properly prosecuted (see Gaumlfgen v
Germany [GC] no 2297805 sect 175 ECHR 2010) and
bull The applicants should have the opportunity ofchallenging the authenticity of the evidenceand of opposing its use (Schenk Khan cases)
Evidence requirement
bull the quality of the evidence must be takeninto consideration including whether thecircumstances in which it was obtainedcast doubt on its reliability or accuracy
bull where the evidence is very strong andthere is no risk of its being unreliable theneed for supporting evidence iscorrespondingly weaker (Khan sectsect 35 and 37
and Allan sect 43)
Jalloh v Germany [GC] No 548100111072006
bull Criminal proceedings - Article 6-1 Fair hearing
bull Use in evidence of a plastic bag containing drugs obtained by the
forcible administration of emetics violationbull Even if it had not been the authoritiesrsquo intention to inflict pain and
suffering on the applicant the evidence had been obtained by ameasure which breached fundamental rights of the Convention
bull Furthermore the drugs obtained by the impugned measure hadproved the decisive element in securing the applicantrsquos convictionLastly the public interest in securing the applicantrsquos convictioncould not justify using such evidence at the trial
bull Accordingly the use in evidence of the drugs obtainedby the forcible administration of emetics to theapplicant had rendered his trial as a whole unfair
Disclosure of evidence
bull The entitlement to disclosure of relevantevidence is not an absolute right
bull in any court proceedings there may becompeting interests (ie national securitythe need to protect witnesses keep secretpolice methods of investigation of crime or to
safeguard an important public interest etc)
which must be weighed against the rightsof the defence
Disclosure of evidence
bull [Some] measures restricting therights of the defence must be strictlynecessary
bull [and] must be sufficientlycounterbalanced by the proceduresfollowed by the judicial authorities
(Jasper v the United Kingdom [GC] no 2705295 sect 5216 February 2000)
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Mantovanelli v Franceprinciples
bull 33 [] one of the elements of a fair hearing under Art 6-1 is theright to adversarial proceedings
bull each party must in principle have the opportunity not only to makeknown any evidence but also to have knowledge of and comment onall evidence adduced with a view to influencing the courtrsquos decision(Nideroumlst-Huber v Switzerland judgment 18021997 sect 24)
bull where an expert has been appointed by a court the parties must in allinstances be able to attend the interviews held by him or to be shownthe documents he has taken into account
bull What is essential is that the parties should be able toparticipate properly in the proceedings before the tribunal(see mutatis mutandis the Kerojaumlrvi v Finland judgment of 19 July1995 sect 42)
bull 34 [] The Court has to ascertain whether the proceedingsconsidered as a whole including the way in which the evidence wastaken were fair under Art 6-1 (see mutatis mutandis the Schenk vSwitzerland judgment 120788 sect 46)
This presentation focuses on such aspectsunder Art 6
bull Fairness of the proceedings as whole
bull Duties of national courts in admitting evidence
bull Disclosure of evidence
bull Admission of sole andor decisive evidence
bull Admission of evidence obtained by the police [active]incitement to commit a crime
bull Admission of secret evidence
bull Admission of evidence obtained in violation of Article 3 ofthe Convention (prohibition of torture inhuman anddegrating treatment)
bull Admission of evidence obtained in violation of Article 8 ofthe Convention (respect for private and family life home andcorrespondence)
Rinkūnienė v Lithuania inadmissible (No 5577908
011209)Assessment of the proceedings as whole
bull Medical negligence casedeath of theapplicantlsquos husband
bull The applicant complained about the refusal of the domesticcourts to order a supplementary expert examination inbreach of Art 6 sect 1
bull two expert reports were contradictory a new expert opinionwas requested (the third one) into the circumstances of herhusbandrsquos death
bull The ECtHR Lithuanian courts based their conclusions on twoexpert reports and four experts were summoned to courts
bull They testified before both the first-instance and appellatecourts The Court does not find that the applicant was placedat a procedural disadvantage vis-agrave-vis the medicalinstitutions or VDS
Rinkūnienėv Lithuania inadmissible (No 5577908 1 December 2009)
bull The assessment of evidence and its probative value areprimarily a matter for the domestic authorities
bull The Court is not competent to deal with an applicationalleging that errors of fact or law have been committed bydomestic courts except where it considers that such errorsmight have involved a possible violation of the rights of theConvention (Erikson v Italy (dec) no 3790097 261099)
bull The Court cannot conclude that the Lithuanian courtsrestricted the applicantrsquos opportunities to prove her case orthat they assessed the evidence before them arbitrarily
bull Overall even if the Court of Appealrsquos silence as regards athird expert report could be regarded as a procedural flawthis aspect alone had NOT reduced the effectiveness of theexamination of the doctorsrsquo responsibility
Article 6 Evidence
bull Article 6 of the Convention does not lay downany rules on the admissibility of evidence assuch which is primarily a matter for regulationunder national law(Jalloh v Germany [GC] no 5481000 sectsect 94-96 ECHR 2006-IX)
bull The Role of the ECtHR is to decide whether theproceedings as a whole including the way inwhich the evidence was obtained were fair(assessment of an overall fairness of theproceedings)
Equality of armsadversarial proceedings
bull Equality of arms ndash equal procedural ability tostate the case
bull Adversarial proceedings ndash to have an accessand a possibility to comment at trial on theobservations filed or evidence adduced by theother party
bullBoth requirements ndash constituent partof Art 6 (fair trial)
Fair proceedingsuse of evidence
bull In determining whether the proceedings as awhole were fair the rights of the defenceshould be regarded
bull also the interests of the public and the victimsthat crime is properly prosecuted (see Gaumlfgen v
Germany [GC] no 2297805 sect 175 ECHR 2010) and
bull The applicants should have the opportunity ofchallenging the authenticity of the evidenceand of opposing its use (Schenk Khan cases)
Evidence requirement
bull the quality of the evidence must be takeninto consideration including whether thecircumstances in which it was obtainedcast doubt on its reliability or accuracy
bull where the evidence is very strong andthere is no risk of its being unreliable theneed for supporting evidence iscorrespondingly weaker (Khan sectsect 35 and 37
and Allan sect 43)
Jalloh v Germany [GC] No 548100111072006
bull Criminal proceedings - Article 6-1 Fair hearing
bull Use in evidence of a plastic bag containing drugs obtained by the
forcible administration of emetics violationbull Even if it had not been the authoritiesrsquo intention to inflict pain and
suffering on the applicant the evidence had been obtained by ameasure which breached fundamental rights of the Convention
bull Furthermore the drugs obtained by the impugned measure hadproved the decisive element in securing the applicantrsquos convictionLastly the public interest in securing the applicantrsquos convictioncould not justify using such evidence at the trial
bull Accordingly the use in evidence of the drugs obtainedby the forcible administration of emetics to theapplicant had rendered his trial as a whole unfair
Disclosure of evidence
bull The entitlement to disclosure of relevantevidence is not an absolute right
bull in any court proceedings there may becompeting interests (ie national securitythe need to protect witnesses keep secretpolice methods of investigation of crime or to
safeguard an important public interest etc)
which must be weighed against the rightsof the defence
Disclosure of evidence
bull [Some] measures restricting therights of the defence must be strictlynecessary
bull [and] must be sufficientlycounterbalanced by the proceduresfollowed by the judicial authorities
(Jasper v the United Kingdom [GC] no 2705295 sect 5216 February 2000)
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
This presentation focuses on such aspectsunder Art 6
bull Fairness of the proceedings as whole
bull Duties of national courts in admitting evidence
bull Disclosure of evidence
bull Admission of sole andor decisive evidence
bull Admission of evidence obtained by the police [active]incitement to commit a crime
bull Admission of secret evidence
bull Admission of evidence obtained in violation of Article 3 ofthe Convention (prohibition of torture inhuman anddegrating treatment)
bull Admission of evidence obtained in violation of Article 8 ofthe Convention (respect for private and family life home andcorrespondence)
Rinkūnienė v Lithuania inadmissible (No 5577908
011209)Assessment of the proceedings as whole
bull Medical negligence casedeath of theapplicantlsquos husband
bull The applicant complained about the refusal of the domesticcourts to order a supplementary expert examination inbreach of Art 6 sect 1
bull two expert reports were contradictory a new expert opinionwas requested (the third one) into the circumstances of herhusbandrsquos death
bull The ECtHR Lithuanian courts based their conclusions on twoexpert reports and four experts were summoned to courts
bull They testified before both the first-instance and appellatecourts The Court does not find that the applicant was placedat a procedural disadvantage vis-agrave-vis the medicalinstitutions or VDS
Rinkūnienėv Lithuania inadmissible (No 5577908 1 December 2009)
bull The assessment of evidence and its probative value areprimarily a matter for the domestic authorities
bull The Court is not competent to deal with an applicationalleging that errors of fact or law have been committed bydomestic courts except where it considers that such errorsmight have involved a possible violation of the rights of theConvention (Erikson v Italy (dec) no 3790097 261099)
bull The Court cannot conclude that the Lithuanian courtsrestricted the applicantrsquos opportunities to prove her case orthat they assessed the evidence before them arbitrarily
bull Overall even if the Court of Appealrsquos silence as regards athird expert report could be regarded as a procedural flawthis aspect alone had NOT reduced the effectiveness of theexamination of the doctorsrsquo responsibility
Article 6 Evidence
bull Article 6 of the Convention does not lay downany rules on the admissibility of evidence assuch which is primarily a matter for regulationunder national law(Jalloh v Germany [GC] no 5481000 sectsect 94-96 ECHR 2006-IX)
bull The Role of the ECtHR is to decide whether theproceedings as a whole including the way inwhich the evidence was obtained were fair(assessment of an overall fairness of theproceedings)
Equality of armsadversarial proceedings
bull Equality of arms ndash equal procedural ability tostate the case
bull Adversarial proceedings ndash to have an accessand a possibility to comment at trial on theobservations filed or evidence adduced by theother party
bullBoth requirements ndash constituent partof Art 6 (fair trial)
Fair proceedingsuse of evidence
bull In determining whether the proceedings as awhole were fair the rights of the defenceshould be regarded
bull also the interests of the public and the victimsthat crime is properly prosecuted (see Gaumlfgen v
Germany [GC] no 2297805 sect 175 ECHR 2010) and
bull The applicants should have the opportunity ofchallenging the authenticity of the evidenceand of opposing its use (Schenk Khan cases)
Evidence requirement
bull the quality of the evidence must be takeninto consideration including whether thecircumstances in which it was obtainedcast doubt on its reliability or accuracy
bull where the evidence is very strong andthere is no risk of its being unreliable theneed for supporting evidence iscorrespondingly weaker (Khan sectsect 35 and 37
and Allan sect 43)
Jalloh v Germany [GC] No 548100111072006
bull Criminal proceedings - Article 6-1 Fair hearing
bull Use in evidence of a plastic bag containing drugs obtained by the
forcible administration of emetics violationbull Even if it had not been the authoritiesrsquo intention to inflict pain and
suffering on the applicant the evidence had been obtained by ameasure which breached fundamental rights of the Convention
bull Furthermore the drugs obtained by the impugned measure hadproved the decisive element in securing the applicantrsquos convictionLastly the public interest in securing the applicantrsquos convictioncould not justify using such evidence at the trial
bull Accordingly the use in evidence of the drugs obtainedby the forcible administration of emetics to theapplicant had rendered his trial as a whole unfair
Disclosure of evidence
bull The entitlement to disclosure of relevantevidence is not an absolute right
bull in any court proceedings there may becompeting interests (ie national securitythe need to protect witnesses keep secretpolice methods of investigation of crime or to
safeguard an important public interest etc)
which must be weighed against the rightsof the defence
Disclosure of evidence
bull [Some] measures restricting therights of the defence must be strictlynecessary
bull [and] must be sufficientlycounterbalanced by the proceduresfollowed by the judicial authorities
(Jasper v the United Kingdom [GC] no 2705295 sect 5216 February 2000)
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Rinkūnienė v Lithuania inadmissible (No 5577908
011209)Assessment of the proceedings as whole
bull Medical negligence casedeath of theapplicantlsquos husband
bull The applicant complained about the refusal of the domesticcourts to order a supplementary expert examination inbreach of Art 6 sect 1
bull two expert reports were contradictory a new expert opinionwas requested (the third one) into the circumstances of herhusbandrsquos death
bull The ECtHR Lithuanian courts based their conclusions on twoexpert reports and four experts were summoned to courts
bull They testified before both the first-instance and appellatecourts The Court does not find that the applicant was placedat a procedural disadvantage vis-agrave-vis the medicalinstitutions or VDS
Rinkūnienėv Lithuania inadmissible (No 5577908 1 December 2009)
bull The assessment of evidence and its probative value areprimarily a matter for the domestic authorities
bull The Court is not competent to deal with an applicationalleging that errors of fact or law have been committed bydomestic courts except where it considers that such errorsmight have involved a possible violation of the rights of theConvention (Erikson v Italy (dec) no 3790097 261099)
bull The Court cannot conclude that the Lithuanian courtsrestricted the applicantrsquos opportunities to prove her case orthat they assessed the evidence before them arbitrarily
bull Overall even if the Court of Appealrsquos silence as regards athird expert report could be regarded as a procedural flawthis aspect alone had NOT reduced the effectiveness of theexamination of the doctorsrsquo responsibility
Article 6 Evidence
bull Article 6 of the Convention does not lay downany rules on the admissibility of evidence assuch which is primarily a matter for regulationunder national law(Jalloh v Germany [GC] no 5481000 sectsect 94-96 ECHR 2006-IX)
bull The Role of the ECtHR is to decide whether theproceedings as a whole including the way inwhich the evidence was obtained were fair(assessment of an overall fairness of theproceedings)
Equality of armsadversarial proceedings
bull Equality of arms ndash equal procedural ability tostate the case
bull Adversarial proceedings ndash to have an accessand a possibility to comment at trial on theobservations filed or evidence adduced by theother party
bullBoth requirements ndash constituent partof Art 6 (fair trial)
Fair proceedingsuse of evidence
bull In determining whether the proceedings as awhole were fair the rights of the defenceshould be regarded
bull also the interests of the public and the victimsthat crime is properly prosecuted (see Gaumlfgen v
Germany [GC] no 2297805 sect 175 ECHR 2010) and
bull The applicants should have the opportunity ofchallenging the authenticity of the evidenceand of opposing its use (Schenk Khan cases)
Evidence requirement
bull the quality of the evidence must be takeninto consideration including whether thecircumstances in which it was obtainedcast doubt on its reliability or accuracy
bull where the evidence is very strong andthere is no risk of its being unreliable theneed for supporting evidence iscorrespondingly weaker (Khan sectsect 35 and 37
and Allan sect 43)
Jalloh v Germany [GC] No 548100111072006
bull Criminal proceedings - Article 6-1 Fair hearing
bull Use in evidence of a plastic bag containing drugs obtained by the
forcible administration of emetics violationbull Even if it had not been the authoritiesrsquo intention to inflict pain and
suffering on the applicant the evidence had been obtained by ameasure which breached fundamental rights of the Convention
bull Furthermore the drugs obtained by the impugned measure hadproved the decisive element in securing the applicantrsquos convictionLastly the public interest in securing the applicantrsquos convictioncould not justify using such evidence at the trial
bull Accordingly the use in evidence of the drugs obtainedby the forcible administration of emetics to theapplicant had rendered his trial as a whole unfair
Disclosure of evidence
bull The entitlement to disclosure of relevantevidence is not an absolute right
bull in any court proceedings there may becompeting interests (ie national securitythe need to protect witnesses keep secretpolice methods of investigation of crime or to
safeguard an important public interest etc)
which must be weighed against the rightsof the defence
Disclosure of evidence
bull [Some] measures restricting therights of the defence must be strictlynecessary
bull [and] must be sufficientlycounterbalanced by the proceduresfollowed by the judicial authorities
(Jasper v the United Kingdom [GC] no 2705295 sect 5216 February 2000)
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Rinkūnienėv Lithuania inadmissible (No 5577908 1 December 2009)
bull The assessment of evidence and its probative value areprimarily a matter for the domestic authorities
bull The Court is not competent to deal with an applicationalleging that errors of fact or law have been committed bydomestic courts except where it considers that such errorsmight have involved a possible violation of the rights of theConvention (Erikson v Italy (dec) no 3790097 261099)
bull The Court cannot conclude that the Lithuanian courtsrestricted the applicantrsquos opportunities to prove her case orthat they assessed the evidence before them arbitrarily
bull Overall even if the Court of Appealrsquos silence as regards athird expert report could be regarded as a procedural flawthis aspect alone had NOT reduced the effectiveness of theexamination of the doctorsrsquo responsibility
Article 6 Evidence
bull Article 6 of the Convention does not lay downany rules on the admissibility of evidence assuch which is primarily a matter for regulationunder national law(Jalloh v Germany [GC] no 5481000 sectsect 94-96 ECHR 2006-IX)
bull The Role of the ECtHR is to decide whether theproceedings as a whole including the way inwhich the evidence was obtained were fair(assessment of an overall fairness of theproceedings)
Equality of armsadversarial proceedings
bull Equality of arms ndash equal procedural ability tostate the case
bull Adversarial proceedings ndash to have an accessand a possibility to comment at trial on theobservations filed or evidence adduced by theother party
bullBoth requirements ndash constituent partof Art 6 (fair trial)
Fair proceedingsuse of evidence
bull In determining whether the proceedings as awhole were fair the rights of the defenceshould be regarded
bull also the interests of the public and the victimsthat crime is properly prosecuted (see Gaumlfgen v
Germany [GC] no 2297805 sect 175 ECHR 2010) and
bull The applicants should have the opportunity ofchallenging the authenticity of the evidenceand of opposing its use (Schenk Khan cases)
Evidence requirement
bull the quality of the evidence must be takeninto consideration including whether thecircumstances in which it was obtainedcast doubt on its reliability or accuracy
bull where the evidence is very strong andthere is no risk of its being unreliable theneed for supporting evidence iscorrespondingly weaker (Khan sectsect 35 and 37
and Allan sect 43)
Jalloh v Germany [GC] No 548100111072006
bull Criminal proceedings - Article 6-1 Fair hearing
bull Use in evidence of a plastic bag containing drugs obtained by the
forcible administration of emetics violationbull Even if it had not been the authoritiesrsquo intention to inflict pain and
suffering on the applicant the evidence had been obtained by ameasure which breached fundamental rights of the Convention
bull Furthermore the drugs obtained by the impugned measure hadproved the decisive element in securing the applicantrsquos convictionLastly the public interest in securing the applicantrsquos convictioncould not justify using such evidence at the trial
bull Accordingly the use in evidence of the drugs obtainedby the forcible administration of emetics to theapplicant had rendered his trial as a whole unfair
Disclosure of evidence
bull The entitlement to disclosure of relevantevidence is not an absolute right
bull in any court proceedings there may becompeting interests (ie national securitythe need to protect witnesses keep secretpolice methods of investigation of crime or to
safeguard an important public interest etc)
which must be weighed against the rightsof the defence
Disclosure of evidence
bull [Some] measures restricting therights of the defence must be strictlynecessary
bull [and] must be sufficientlycounterbalanced by the proceduresfollowed by the judicial authorities
(Jasper v the United Kingdom [GC] no 2705295 sect 5216 February 2000)
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Article 6 Evidence
bull Article 6 of the Convention does not lay downany rules on the admissibility of evidence assuch which is primarily a matter for regulationunder national law(Jalloh v Germany [GC] no 5481000 sectsect 94-96 ECHR 2006-IX)
bull The Role of the ECtHR is to decide whether theproceedings as a whole including the way inwhich the evidence was obtained were fair(assessment of an overall fairness of theproceedings)
Equality of armsadversarial proceedings
bull Equality of arms ndash equal procedural ability tostate the case
bull Adversarial proceedings ndash to have an accessand a possibility to comment at trial on theobservations filed or evidence adduced by theother party
bullBoth requirements ndash constituent partof Art 6 (fair trial)
Fair proceedingsuse of evidence
bull In determining whether the proceedings as awhole were fair the rights of the defenceshould be regarded
bull also the interests of the public and the victimsthat crime is properly prosecuted (see Gaumlfgen v
Germany [GC] no 2297805 sect 175 ECHR 2010) and
bull The applicants should have the opportunity ofchallenging the authenticity of the evidenceand of opposing its use (Schenk Khan cases)
Evidence requirement
bull the quality of the evidence must be takeninto consideration including whether thecircumstances in which it was obtainedcast doubt on its reliability or accuracy
bull where the evidence is very strong andthere is no risk of its being unreliable theneed for supporting evidence iscorrespondingly weaker (Khan sectsect 35 and 37
and Allan sect 43)
Jalloh v Germany [GC] No 548100111072006
bull Criminal proceedings - Article 6-1 Fair hearing
bull Use in evidence of a plastic bag containing drugs obtained by the
forcible administration of emetics violationbull Even if it had not been the authoritiesrsquo intention to inflict pain and
suffering on the applicant the evidence had been obtained by ameasure which breached fundamental rights of the Convention
bull Furthermore the drugs obtained by the impugned measure hadproved the decisive element in securing the applicantrsquos convictionLastly the public interest in securing the applicantrsquos convictioncould not justify using such evidence at the trial
bull Accordingly the use in evidence of the drugs obtainedby the forcible administration of emetics to theapplicant had rendered his trial as a whole unfair
Disclosure of evidence
bull The entitlement to disclosure of relevantevidence is not an absolute right
bull in any court proceedings there may becompeting interests (ie national securitythe need to protect witnesses keep secretpolice methods of investigation of crime or to
safeguard an important public interest etc)
which must be weighed against the rightsof the defence
Disclosure of evidence
bull [Some] measures restricting therights of the defence must be strictlynecessary
bull [and] must be sufficientlycounterbalanced by the proceduresfollowed by the judicial authorities
(Jasper v the United Kingdom [GC] no 2705295 sect 5216 February 2000)
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Equality of armsadversarial proceedings
bull Equality of arms ndash equal procedural ability tostate the case
bull Adversarial proceedings ndash to have an accessand a possibility to comment at trial on theobservations filed or evidence adduced by theother party
bullBoth requirements ndash constituent partof Art 6 (fair trial)
Fair proceedingsuse of evidence
bull In determining whether the proceedings as awhole were fair the rights of the defenceshould be regarded
bull also the interests of the public and the victimsthat crime is properly prosecuted (see Gaumlfgen v
Germany [GC] no 2297805 sect 175 ECHR 2010) and
bull The applicants should have the opportunity ofchallenging the authenticity of the evidenceand of opposing its use (Schenk Khan cases)
Evidence requirement
bull the quality of the evidence must be takeninto consideration including whether thecircumstances in which it was obtainedcast doubt on its reliability or accuracy
bull where the evidence is very strong andthere is no risk of its being unreliable theneed for supporting evidence iscorrespondingly weaker (Khan sectsect 35 and 37
and Allan sect 43)
Jalloh v Germany [GC] No 548100111072006
bull Criminal proceedings - Article 6-1 Fair hearing
bull Use in evidence of a plastic bag containing drugs obtained by the
forcible administration of emetics violationbull Even if it had not been the authoritiesrsquo intention to inflict pain and
suffering on the applicant the evidence had been obtained by ameasure which breached fundamental rights of the Convention
bull Furthermore the drugs obtained by the impugned measure hadproved the decisive element in securing the applicantrsquos convictionLastly the public interest in securing the applicantrsquos convictioncould not justify using such evidence at the trial
bull Accordingly the use in evidence of the drugs obtainedby the forcible administration of emetics to theapplicant had rendered his trial as a whole unfair
Disclosure of evidence
bull The entitlement to disclosure of relevantevidence is not an absolute right
bull in any court proceedings there may becompeting interests (ie national securitythe need to protect witnesses keep secretpolice methods of investigation of crime or to
safeguard an important public interest etc)
which must be weighed against the rightsof the defence
Disclosure of evidence
bull [Some] measures restricting therights of the defence must be strictlynecessary
bull [and] must be sufficientlycounterbalanced by the proceduresfollowed by the judicial authorities
(Jasper v the United Kingdom [GC] no 2705295 sect 5216 February 2000)
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Fair proceedingsuse of evidence
bull In determining whether the proceedings as awhole were fair the rights of the defenceshould be regarded
bull also the interests of the public and the victimsthat crime is properly prosecuted (see Gaumlfgen v
Germany [GC] no 2297805 sect 175 ECHR 2010) and
bull The applicants should have the opportunity ofchallenging the authenticity of the evidenceand of opposing its use (Schenk Khan cases)
Evidence requirement
bull the quality of the evidence must be takeninto consideration including whether thecircumstances in which it was obtainedcast doubt on its reliability or accuracy
bull where the evidence is very strong andthere is no risk of its being unreliable theneed for supporting evidence iscorrespondingly weaker (Khan sectsect 35 and 37
and Allan sect 43)
Jalloh v Germany [GC] No 548100111072006
bull Criminal proceedings - Article 6-1 Fair hearing
bull Use in evidence of a plastic bag containing drugs obtained by the
forcible administration of emetics violationbull Even if it had not been the authoritiesrsquo intention to inflict pain and
suffering on the applicant the evidence had been obtained by ameasure which breached fundamental rights of the Convention
bull Furthermore the drugs obtained by the impugned measure hadproved the decisive element in securing the applicantrsquos convictionLastly the public interest in securing the applicantrsquos convictioncould not justify using such evidence at the trial
bull Accordingly the use in evidence of the drugs obtainedby the forcible administration of emetics to theapplicant had rendered his trial as a whole unfair
Disclosure of evidence
bull The entitlement to disclosure of relevantevidence is not an absolute right
bull in any court proceedings there may becompeting interests (ie national securitythe need to protect witnesses keep secretpolice methods of investigation of crime or to
safeguard an important public interest etc)
which must be weighed against the rightsof the defence
Disclosure of evidence
bull [Some] measures restricting therights of the defence must be strictlynecessary
bull [and] must be sufficientlycounterbalanced by the proceduresfollowed by the judicial authorities
(Jasper v the United Kingdom [GC] no 2705295 sect 5216 February 2000)
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Evidence requirement
bull the quality of the evidence must be takeninto consideration including whether thecircumstances in which it was obtainedcast doubt on its reliability or accuracy
bull where the evidence is very strong andthere is no risk of its being unreliable theneed for supporting evidence iscorrespondingly weaker (Khan sectsect 35 and 37
and Allan sect 43)
Jalloh v Germany [GC] No 548100111072006
bull Criminal proceedings - Article 6-1 Fair hearing
bull Use in evidence of a plastic bag containing drugs obtained by the
forcible administration of emetics violationbull Even if it had not been the authoritiesrsquo intention to inflict pain and
suffering on the applicant the evidence had been obtained by ameasure which breached fundamental rights of the Convention
bull Furthermore the drugs obtained by the impugned measure hadproved the decisive element in securing the applicantrsquos convictionLastly the public interest in securing the applicantrsquos convictioncould not justify using such evidence at the trial
bull Accordingly the use in evidence of the drugs obtainedby the forcible administration of emetics to theapplicant had rendered his trial as a whole unfair
Disclosure of evidence
bull The entitlement to disclosure of relevantevidence is not an absolute right
bull in any court proceedings there may becompeting interests (ie national securitythe need to protect witnesses keep secretpolice methods of investigation of crime or to
safeguard an important public interest etc)
which must be weighed against the rightsof the defence
Disclosure of evidence
bull [Some] measures restricting therights of the defence must be strictlynecessary
bull [and] must be sufficientlycounterbalanced by the proceduresfollowed by the judicial authorities
(Jasper v the United Kingdom [GC] no 2705295 sect 5216 February 2000)
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Jalloh v Germany [GC] No 548100111072006
bull Criminal proceedings - Article 6-1 Fair hearing
bull Use in evidence of a plastic bag containing drugs obtained by the
forcible administration of emetics violationbull Even if it had not been the authoritiesrsquo intention to inflict pain and
suffering on the applicant the evidence had been obtained by ameasure which breached fundamental rights of the Convention
bull Furthermore the drugs obtained by the impugned measure hadproved the decisive element in securing the applicantrsquos convictionLastly the public interest in securing the applicantrsquos convictioncould not justify using such evidence at the trial
bull Accordingly the use in evidence of the drugs obtainedby the forcible administration of emetics to theapplicant had rendered his trial as a whole unfair
Disclosure of evidence
bull The entitlement to disclosure of relevantevidence is not an absolute right
bull in any court proceedings there may becompeting interests (ie national securitythe need to protect witnesses keep secretpolice methods of investigation of crime or to
safeguard an important public interest etc)
which must be weighed against the rightsof the defence
Disclosure of evidence
bull [Some] measures restricting therights of the defence must be strictlynecessary
bull [and] must be sufficientlycounterbalanced by the proceduresfollowed by the judicial authorities
(Jasper v the United Kingdom [GC] no 2705295 sect 5216 February 2000)
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Disclosure of evidence
bull The entitlement to disclosure of relevantevidence is not an absolute right
bull in any court proceedings there may becompeting interests (ie national securitythe need to protect witnesses keep secretpolice methods of investigation of crime or to
safeguard an important public interest etc)
which must be weighed against the rightsof the defence
Disclosure of evidence
bull [Some] measures restricting therights of the defence must be strictlynecessary
bull [and] must be sufficientlycounterbalanced by the proceduresfollowed by the judicial authorities
(Jasper v the United Kingdom [GC] no 2705295 sect 5216 February 2000)
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Disclosure of evidence
bull [Some] measures restricting therights of the defence must be strictlynecessary
bull [and] must be sufficientlycounterbalanced by the proceduresfollowed by the judicial authorities
(Jasper v the United Kingdom [GC] no 2705295 sect 5216 February 2000)
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Case Pocius v Lithuania (No 3560104 06072010)(OPPOSITE conclusion in the recent case Regner v CzechRepublic2017)
bull ldquoCivil rightrdquo aspect under Article 6 of the Convention VIOLATION of Art 6 sect 1
bull The decision-making procedure did notcomply with the requirements ofadversarial proceedings or equality ofarms and did not incorporate adequatesafeguards to protect the applicant [hellip]
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Case Pocius v Lithuania
bullThe applicantrsquos name had beenlisted in the operational recordsfile (without the applicantlsquosknowledge)
bullthe police urged him to hand inhis firearms as his licence to keepfirearms was revoked
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Case Pocius v Lithuania
bull Complaints
bull the restriction on his having access to theoperational records file had not beenproportionate
bull domestic courts had based their decisions onclassified information which had not beendisclosed to the applicant
bull Instead of [a real] evidence the applicant hadbeen presented with mere assumptions on hisdanger to the national security []
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Case Pocius v Lithuaniaadmission of evidence
bull The content of the operational file was neverdisclosed to the applicant
bull Lithuanian judges did examine behind closeddoors the operational records file and relied onit in their decisions
bull the applicant had NO possibility to challengethis evidence or to respond to it
bull unlike the police who had effectively exercisedsuch rights
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Case Pocius v Lithuania
bull 53 [] where evidence has been withheldfrom the defence it is not the role of theEuropean Court to decide whether or not suchnon-disclosure was strictly necessary since as ageneral rule it is for the national courts toassess the evidence before them
bull BUT the decision-making procedure should ensure theadversarial proceedings and equality of arms andincorporate adequate safeguards to protect theinterests of the accused
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Luca v Italy case (no 3335496 sect 40 2001-II)- balancingof fair trial with the failure to examine key witness [attrial]
bull The applicant complained that the criminalproceedings against him (possession of cocaine)had been unfair [] [as] he had been convictedon the basis of statements made to the publicprosecutor without being given an opportunityto examine the maker of the statements N orto have him examined at trial
bull The main evidence was the statements whichN had made to the public prosecutor
bull Article 6 sectsect 1 and 3 (d) of the Conventioninvolved
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Luca casecorrect or false statement
bull 22 The Court of Cassation observed that Article 6 sect 3 (d) ofthe Convention concerned
bull ldquo the examination of witnesses who are required to tellthe truth not the examination of the accused who areentitled to defend themselves by remaining silent oreven by lyingrdquo
bull Further since all States that were party to theConvention had an obligation by relevant domesticlegislation to regulate the examination of witnesses itwas ldquoobvious that when a witness refused to giveevidence statements made to the public prosecutor had to be produced for the courtrsquos filerdquo
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Luca v Italy Violation of Art 6 sectsect 1 and 3 (d)
bull if the defendant has been given an adequate andproper opportunity to challenge the depositions madeat investigation stage [] their admission in evidencewill not in itself contravene Art 6 sectsect 1 and 3 (d)
bull where a conviction is based solely or to adecisive degree on depositions that have beenmade by a person whom the accused has hadno opportunity to examine or to haveexamined whether during the investigation orat the trial the rights of the defence arerestricted in violation of Art 6
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Ramanauskas v Lithuania [GC] incitement to commit acrime (No 7442001 judgment of 05022008)
bull Article 6-1 Fair hearingbull Conviction of the offence of bribery incited by the police under the
Criminal Conduct Simulation Model VIOLATION of Article 6-1bull Factsbull The applicant worked as a prosecutor He submitted that he had been
approached through his acquaintance by a person previously unknown to himwho was in fact an officer from a special anti-corruption police unit
bull The officer offered the applicant a bribe of USD 3000 in return for a promise toobtain a third partyrsquos acquittal
bull The applicant had initially refused but later agreed []bull In January 1999 the Deputy Prosecutor General authorised him to simulate
criminal acts of bribery Shortly afterwards the applicant accepted the bribefrom the officer
bull In August 2000 he was convicted of accepting a bribe of USD 2500 andsentenced to imprisonment
bull Lawbull The national authorities could not be exempted from responsibility for the
actions of police officers simply by arguing that although carrying out policeduties the officers were acting ldquoin a private capacityrdquo
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Ramanauskas v Lithuania [GC] ndash use by national courts ofan evidence obtained by the [active] acts of incitement tocommit a crime (in principle sole evidence)
bull The actions of the officer and the applicantrsquos acquaintance hadgone beyond the mere passive investigation of existing criminalactivity
bull there was no evidence that the applicant had committed anyoffences beforehand
bull all the meetings between the applicant and the officer had takenplace on the latterrsquos initiative
bull Throughout the proceedings the applicant had maintained that hehad been incited to commit the offence
bull The domestic authorities and courts should have undertaken athorough examination of whether the prosecuting authorities hadincited the commission of a criminal act
bull There was no indication that the offence would have beencommitted without their intervention
bull The applicantrsquos trial had been deprived of fairnessbull Conclusion violation (unanimously)bull Article 41 ndash EUR 30000 in respect of all damages
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Some bdquoNEWldquo tendencies in the caselaw of the ECtHR
bull Regner v Czech Republic [GC] No 352891119092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms -
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings
bull Article 6 applicable BUT NO violationbull Establishing of facts ndash ldquosecret prisonsrdquo cases v Lithuania (Abu
Zubaydah v Lithuania no 4645411 31052018) andRomania (Al Nashiri v Romania No 3323412 31052018)
bull ECtHR ndash was clearly ldquoestablishingrdquo facts concerning thepresence of secret prisons in the two mentioned countries
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Al Nashiri v Romania Abu Zubaydah vLithuania
bull Al Nashiri v Romania - 3323412 Judgment 3152018 [Section I]
bull Article 3 - Inhuman treatment Extradition
bull Inhuman treatment following applicantsrsquo extraordinary renditionto CIA violations
bull [This summary also covers the judgment in the case of AbuZubaydah v Lithuania 4645411 31 May 2018]
bull Establishment of the facts and jurisdiction The Court found itestablished conclusively and beyond reasonable doubtthat Lithuania and Romania had hosted on theirterritory a CIA Detention Site
bull that the applicants had been secretly detained there for more thana year and that the authorities of the respondent States knew ofthe nature and purposes of the CIArsquos activities in their countries
bull - within the ldquojurisdictionrdquo of Lithuania and Romania under Art 1 ofthe ECHR
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Regner v Czech Republic [GC] No 3528911 19092017
bull Article 6-1 Fair trialAdversarial trialEquality of arms (Art 6 applicable)
bull Lack of access to classified information constituting decisiveevidence in judicial-review proceedings NO VIOLATION ()
bull Factsbull The National Security Authority decided to revoke the security clearance
that had been issued to the applicant enabling him to hold the post ofdeputy to the first Vice-Minister of Defence on the grounds that he poseda risk to national security
bull The decision did not however indicate which confidential information itwas based on as this was classified ldquorestrictedrdquo and
bull could not therefore legally be disclosed to the applicantbull The applicant and his lawyer were not permitted to consult the documents in the case
file [All] subsequent appeals by the applicant were unsuccessful
bull the applicant complained that the administrative proceedings hadbeen unfair because he had been unable to have sight of decisiveevidence classified as confidential information which had beenmade available to the courts by the defendant
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Regner v Czech Republic [GC2017]
bull The proceedings to revoke the security clearance had beenrestricted in two ways with regard to the rules of a fair trial
bull - the classified documents and information had not beenavailable either to him or to his lawyer and
bull - in so far as the decision revoking security clearance hadbeen based on those documents the grounds for thedecision had not been disclosed to him
bull Domestic courts had unlimited access to all the classifieddocuments the applicant who had been heard by the judgesand had also been able to make his submissions in writing
bull The Supreme Administrative Court - that disclosure of theclassified documents could have had the effect of disclosingthe intelligence servicersquos working methods or leading toattempts to influence possible witnesses
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Regner v Czech Republic
bull Accordingly there was nothing to suggest that theclassification of the documents had been decided arbitrarilyor for a purpose other than the legitimate interest as [hellip] theapplicant had been prosecuted for participation in organisedcrime aiding and abetting abuse of public power andillegally influencing public procurement procedures [hellip]
bull It was understandable that the authorities considered itnecessary to take rapid action
bull Nonetheless it would have been desirable ndash for the nationalauthorities or at least the Supreme Administrative Court tohave explained if only summarily the extent of thereview they had carried out and the accusations againstthe applicant
bull Conclusion NO violation (ten votes to seven) of theapplicantrsquos right to a fair trial
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
bull Where a hearsay statement is the sole or decisiveevidence its admission as evidence will notautomatically result in a breach of Art 6 sect 1
bull in such cases the European Court must subject theproceedings to the most searching scrutiny
bull proportionality and necessity test should beperformed
bull sufficient counterbalancing factors including theexistence of strong procedural safeguards shouldbe granted to the defence
Conclusion on the sole or decisive evidence (Regner casendashdifferent position)
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Older case - Perry v the United Kingdom (dec) 6373700 ECtHR 26 September 2002
bull Videotaping for identification purposes
bull The applicant had covertly been videotaped by the police foridentification purposes in violation of domestic procedure
bull The applicant complained
bull - of a violation of Art 6 resulting from the use of theevidence obtained by covert videotaping
bull the domestic courts failed to protect the applicantrsquos rights byNOT excluding such unlawfully-obtained evidence from trial
bull - of a violation of Article 8 of the ECHR
bull The tape along with other evidence was used for convictionof robbery (NOT the SOLE evidence)
bull Inadmissibility Decision (partially)
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Perry v the United Kingdom
bull Adequate Safeguards put in placeECtHRbull the applicantrsquos counsel challenged the admissibility of the video
tapebull Defence was able to present arguments to exclude the evidence
as unreliable unfair or obtained in an oppressive mannerbull the second judge admitted the evidence and the applicant
remained entitled to challenge it before the jurybull the judgersquos approach was reviewed on appeal by the Court of
Appeal
bull At each step of the procedure the applicant hadtherefore been given an opportunity to challenge thereliability and quality of the identification evidencebased on the videotape
bull The trial and appeal satisfied the requirements of Article 6 sect 1
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Al-Khawaja case (GCndash15 to 2 Votes) NO VIOLATION
bull ECtHR ndash complaints about conviction based onthe sole or decisive evidence - conviction of MrAl-Khawaja on two counts of indecent assaulton two female patients while they wereallegedly under hypnosis
bull The applicant was a consultant physician in thefield of rehabilitative medicine he wassentenced to 12 and 15 monthsrsquo imprisonment
bull The appeal centred on the pre-trial ruling toadmit STrsquos statement as evidence
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Al-Khawaja case
bull The Court of Appeal - the first applicantrsquos rightto a fair trial had not been infringed
bull The witness ST could not be examinedbecause she had died
bull She was the only witness whose evidence wentdirectly to the commission of an indecentassault on her by the appellant
bull If her statement had been excluded theprosecution would have had to abandon thefirst count
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Al-Khawaja case
bull Legal problem - [only one] decisive evidencewhich was admitted no cross-examination attrial
bull BUT - procedural safequards offered at the trialCOMPENSATED difficulties caused to thedefence
bull the statement of ST was recorded by the policein a proper form
bull there were strong similarities between STrsquosdescription of the alleged assault and that ofthe other complainant VU
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Tahery case - Violation of Art 6 (GC ndashunan)
Tahery was convicted principally of wounding with intent to causegrievous bodily harm (3 stab wounds) (10 years imprisonment)
When witnesses were questioned at the scene no one claimed tohave seen Mr Tahery stab S
Two days later however the witness T made a statement to thepolice that he had seen Mr Tahery stab S
This was a decisive evidence for Taherylsquos conviction
Legal problem ndash the same as in Al-Khawaja case ndash admission of Tstatements given to the prosecution
Witness T was NOT questioned at trialNo cross-examination at trial
The judge had supported the prosecutionlsquos application to read Trsquosstatement at the trial as T was too fearful to attend trial before thejury []
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Position of a National Judge
bull 34 In ruling that leave should be given for the statement tobe read to the jury the trial judge stated
bull ldquoI am satisfied in those circumstances upon the criminalstandard of proof that this witness is genuinely in fear []
bull [] any risk [that] its admission or exclusion will result inunfairness to any party to the proceedings
bull I am satisfied that there would be an unfairness caused by itsexclusion but I am equally satisfied that no unfairness wouldbe caused by its admission
bull Challenge of a statement does not always come from cross-examination
bull Challenge of a statement can be caused by evidence given inrebuttal
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Tahery caseECtHR
bull 165 [] the decisive nature of Trsquos statement in the absence of
any strong corroborative evidence (the only witness who hadclaimed to see the stabbing)
bull [therefore] the jury was unable to conduct a fair and proper
assessment of the reliability of Trsquos evidence ()
bull Such untested evidence weighs heavily in the balanceand requires sufficient counterbalancing factors to begranted to the defence
bull 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 Trsquos statement
bull A violation of Art 6 sect 1 of read in conjunction with Art 6 sect 3 (d)
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Conclusions as regards the admission of evidence
bull the admissibility of evidence as such is primarily amatter for regulation under national law
bull national judge should decide on the admissibility of [aparticular] evidence
bull the Role of the ECtHR is to determine whether theproceedings as a whole at domestic level were fair
bull the defendant should have an opportunity ofchallenging the authenticity of the evidence admittedand of opposing its use
bull sufficient counterbalancing factors are required tocompensate difficulties caused to the defence byadmission of an untested evidence
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Violations of Art 3 and 8 of the ECHR and the right to a fair trialndashdifferent position
bull Admission in evidence of information obtained inbreach of Art 8 (Respect for private and family life) ndash inprinciple not in conflict with Art 6
bull 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 suchproceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull the use of evidence obtained as a result of torturerenders a trial automatically unfair
bull (Harutyunyan v Armenia (no 3654903 ECHR 2007-)
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Bykov v Russia [GC]
bull The same position ndash followed in the case Bykov vRussia ([GC] No 437802 10032009)
bull Art 6 11 votes to 6 ndash NO viol (see also the DissOp)
bull Bykov complained that the covert operation of thepolice involved an unlawful intrusion into his home andthat the interception and recording of his conversationwith Mr V where he incriminated himself amountedto interference with his private life and hiscorrespondence
bull The recording of the conversation was admitted asevidence in his criminal trial for a murder crime
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Bykov v Russia
bull 97 [hellip] V was not cross-examined at the trial the failure to do sowas not imputable to the authorities who took all necessary stepsto establish his whereabouts including by seeking the assistance ofInterpol
bull The applicant was given an opportunity to question V when theywere confronted during the questioning on 10 October 2000
bull The applicants counsel expressly agreed to having Vs pre-trialtestimonies read out in open court
bull Finally Vs incriminating statements were corroborated bycircumstantial evidence in particular numerous witnesstestimonies confirming the existence of a conflict of interestsbetween the applicant and S
bull 98 In view of the above the Court accepts that the evidenceobtained from the covert operation was not the sole basis for theapplicants conviction but it was corroborated by other conclusiveevidence
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Case Gulijev v Lithuania No 1042503 16 December2008 (administrative decision-making process)
bull The Migration Office had refused to issue to the applicant a newtemporary residence permit which resulted in the expulsion order
bull Complaints of the violation of Art 8 of the Convention(procedural aspect) - Document provided by the StateSecurity Department and classified as ldquosecretrdquo hadnever been disclosed to the applicant during theadministrative proceedings
bull The decision to expel him was solely based on theallegation that he posed a ldquothreat to national securityand public orderrdquo
bull The applicant had lived in Lithuania from 1993 with SG aLithuanian citizen whom he had married in 2001 and with whomhe had two children (Lithuanian citizens) []
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Case Gulijev v Lithuania
bull Procedural violation of Art 8 (ldquofamily liferdquo )
bull Art 6 of the ECHR not applicable
bull Administrative courts of Lithuania relied upon thereport of the State Security Department which wasclassified as ldquosecretrdquo
bull BUT - the content of this report was never disclosed tothe applicant during the administrative proceedingsthus restricting his defence rights
bull The report was the sole basis for the refusal of theresidence permit and the applicantlsquos deportation order
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Case Gulijev v Lithuania
bull ECtHR paid attention to the practice of the domestic admincourts that as a rule factual data which constitutes a Statesecret may not be used as evidence in an administrative caseuntil it has been declassified [hellip]
bull However admin courts of Lithuania did not follow this clearprocedural rule
bull In the case file there were no documents allowing the Courtto conclude that the applicant posed a threat to nationalsecurity ()
bull The applicant was deported and until 2099 is prohibited fromre-entering Lithuania where his two children and wife all ofwhom were Lithuanian citizens live (an important elementfor necessity and proportionality test)
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Violation of Article 3 (prohibition of torture and
inhuman or degrating treatment) and admission of evidence
bull Violation of Article 3 is subject to different considerationsthan evidence gathered by a violation of Art 8 of the ECHR
bull the use of evidence obtained in violation of Art 3 in criminalproceedings raises in itself serious issues as to the fairness ofsuch proceedings even if the admission of such evidence wasnot decisive in securing the conviction
bull Article 3 of the Convention - an absolute right permitting noexceptions or derogations
bull in particular the use of evidence obtained as a result oftorture renders a trial automatically unfair (Harutyunyan vArmenia (no 3654903 ECHR 2007-)
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3 of the Convention Violation of Art 3
bull Factsbull In 2002 the applicant suffocated an eleven-year-old boy to
death and hid his corpsebull He sought a ransom from the boyrsquos parents and was arrested
shortly after having collected the moneybull In the police station he was questioned about the victimrsquos
whereabouts and threatened with physical pain in order tomake him reveal the boyrsquos location
bull For fear of being exposed to such treatment the applicantdisclosed where he had hid the victimrsquos body
bull In the subsequent criminal proceedings a regionalcourt decided that none of his confessions madeduring the investigation could be used as evidencesince they had been obtained under duresscontrary to Article 3 of the ECHR
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Gaumlfgen v Germany
bull At the trial the applicant again confessed to murder
bull The courtrsquos findings were based on that confession andon other evidence including evidence secured as aresult of the statements extracted from the applicantduring the investigation The applicant was ultimatelyconvicted to life imprisonment
bull The Federal Constitutional Court having nonethelessacknowledged that extracting his confession during theinvestigation constituted a prohibited method ofinterrogation both under the domestic law and theConvention
bull In 2004 the two police officers involved in threatening wereconvicted of coercion and incitement to coercion while on duty
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Gaumlfgen v Germany NO VIOL of Article 6 sect 1 and sect 3
bull ECtHRbull 187 [hellip] in the particular circumstances of the applicantrsquos case the
failure to exclude the impugned real evidence in a murder criminalcase secured following a statement extracted by means ofinhuman treatment did not have a bearing on the applicantrsquosconviction and sentence
bull [he confessed to the crime again during the trial stressing that hewas confessing freely in order to take responsibility for the crimehe had committed]
bull As the applicantrsquos defence rights have likewise beenrespected his trial as a whole must be considered tohave been fair
bull 188 No violation of Art 6 sect 1 and sect 3 of the Convention
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Violation of Article 3 impact to Art 6 ndashfairnessCONCLUSIONS
bull The suggestion that the admission of evidence obtained by anyform of ill-treatment is unacceptable under Art 6 appears alreadyin the Gocircccedilmen v Turkey case (no 7200001 17 October 2006)
bull 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 inorder to force him to regurgitate the drugs he had swallowed Theevidence ndash drugs obtained in such way were used in the criminalproceedings against the applicant) Violations of Art 3 and Art 6of the ECHR
bull Gaumlfgen v Germany [GC] Viol of Art 3 BUT NO viol of Art 6
(by 11 to 6 votes see also the Diss Op)
bull FOR DISCUSSION ndash is Gaumlfgen v Germany [GC] case in line with theCourtlsquos traditional case-law on admission of evidence or not
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
Evidence[some] new tendencies
bull Clear rule ndash admission of evidence - matter for regulationunder national lawand for a national judge to decide
bull BUT ndash some exceptions possible ndash Regner v Czech Republiccase [GC 2017] admission of the sole and also secretevidence NOT disclosed to the defence ndash NO Viol of Art 6
bull for discussions ndash is this in line with ECtHR case-law
bull bdquoSecret prisonsldquo cases - ECtHR establishes bdquofactsldquondashfor discussions - is it the Role of the ECtHR underArt 19 or NOT
bull Art 41 and 46 of the Convention (Execution ofjudgments in such casespositive obligations placedon the States)
bull
