LLB: CL Part B All cases and criterias required for the exam

VENDITELLI v. ITALY ( W 1 ) : facts of the case

Facts of Significance:

-Mr. Venditelli's flat was sealed on grounds that he had infringed the town planning regulations.
-He lodged three applications for release of property.
-Trial was set, but postponed.-He was suspended -lodged an appeal.
-Hearing in Appeal Court was adjourned twice.
-Prosecution barred due to presidential decree, further postponement.
-Length : approximately 4 years.

Mr. Venditelli's Complaint:

-Length of the proceedings against him were unreasonable.
-Violation of Article 6 (1) of the Convention.

VENDITELLI v. ITALY ( W 1 ) : criterias for determining whether the length of proceedings against an applicant have been reasonable

a) Complexity of the Case (and what wasat stake)

b) Conduct of the Applicant

c) Conduct of the Authorities

d) Courts dealing with the Case

OZTURK v. GERMANY ( W 1 ) : facts of the case

Facts of Significance:

-Mr. Ozturk is a Turkish citizen who possess a German driving license after having passed the necessary test.

-He drives his car into another car. A fine is imposed upon him by the administrative authorities.

-He is provided an interpreter in the German court, and made to pay a substantial sum for it
-DM 63.90.
-He appeals against the bill of court costs.

Complaint:

-He should have had access to a free interpreter in Court.
-Violation of Article 6 (3-e) of the Convention.
-Government says that Mr. Ozturk did not commit a criminal offence, and therefore not a subject of the Article

OZTURK v. GERMANY ( W1 ) : criterias for determining whether Article 6 is applicable ( criminal offence or not ? )

According to the Engel Criteria, an offence can be classified as 'criminal', thereby invoking the applicability of Article 6 ECHR, based on the following factors

a)Did the text defining the offense belong, according the legal system of the respondent State, to criminal law?

b)Nature of the Offence

c) Nature and Degree of Severity of the Penalty Imposed

NIEMETZ v. GERMANY ( W 2 ) : facts of the case

Facts of Significance:

-Mr. Niemetzwas a lawyer and the previous chairman of FBL.
-Insulting statements to halt criminal proceedings to reduce the influence of the Church were made by FBL, under a Klaus Wegner.
-Police questioned Niemetz on the whereabouts of Wegner.

A warrant to search his law office was issued.

Complaint:

-The search of office violated the applicant's privilege of 'private life'.
-Violation of Article 8 of the Convention.

NIEMETZ v. GERMANY ( W 2 ) : criterias for determining if there was a violation of the notion of 'private life' under Article 8 of the Convention ?

a)Was there an interference?

-Private life comprises of the right to establish and develop relationships with other human beings.

-There is no reason why 'private life' should exclude professional or business life; it is in the course of their working lifethat people have the opportunity to develop relationships with the outside world.

-Furthermore, it is difficult to always distinguish which activities are professional and which are not; especially for those practicing liberal professions.

-It would be an inequality of treatment if 'private life' did not encompass professional work for those whose professional and non-professional activities intermingle.

-With regards the word 'home' -professional activities can also be carried out in a private residence.

-Therefore, a search of the applicant's office was an interference.

b)Was the interference in 'accordance with law'?

c) Did the interference pursue a legitimate aim?

-Yes, it pursued two legitimate aims.

-Prevention of crime and protection of rights of others i.e. the honour of Judge Miosga.

d)Was the interference 'necessary ina democratic society'?

-No, the need to search the applicant's office was not proportional to the aforementioned legitimate aim.

-It was a minor offense; the search impinged on professional secrecy to prevent a minor offense.

-Moreover, where a lawyer is involved, encroachment on professional secrecy may have repercussions to his reputation

LETTELIER v. FRANCE ( W2 ) : facts of the case

Facts of Significance:

-The applicant was alleged to have paid two men to kill her second husband.

-She claimed to only having seen the murder weapon, and even though wanting to get rid of him, did not pay for his killing.

-She also claimed that he paid one man so that he could buy a motor car; he was poor.

-She was charged as an accessory to murder.

-The applicant was arrested and re-arrested; filed several applications for release.

Complaint:

-The applicant complained of the length of her detention on remand and not being promptly brought before a judge.

-Violation of Article 5 (3) and 5 (4) of the Convention.

LETTELIER v. FRANCE ( W 2 ) : criterias for determining if a certain length of detention on remand constitute a violation of Article 5 (3) of the Convention?

a) Persistence of reasonable suspicion that the person arrested committed a crime-

This is valid but can be applied only for a certain period of time, after which the Court must ascertain the need for continued deprivation of liberty.

b) Risk of pressure upon the witness

-This risk decreased with the passing time; it was only present at the beginning.

c)Danger of absconding

-It was presumed that the applicant would evade trial because of the severity of potential sentence.

-However, the danger of absconding cannot be gauged solely on this basis. It must be assessed on other substantial factors which concretely indicate this danger.

d)Inadequacy of Court supervision

-Since the only concern was thedanger of absconding, there could have been other measures to take care of the matter i.e. security and court supervision.

-However, this was not established in this case.

e) Preservation of public order

-Certain offenses may give rise to social disturbance and call for pre-trial detention.

-However, this is relevant and sufficient only with evidence to prove that the defendant is a threat to public order.

-The detention in this case, was therefore, on an abstract presumption and the aforementioned condition forpre-trial detention was not met.

LETTELIER v. FRANCE ( W 2 ) : criterias for determining if a certain length of detention on remand constitute a violation of Article 5 (4) of the Convention?

ISSUE 2:

Did the applicant's 2-year 9-month detention on remand constitute a violation of Article 5 (4) of the Convention?

RULE:Article 5 (4) ECHR, Lettelier V. France

APPLICATION/ANALYSIS:
-The applicant retained the right to submit further applications at any time.
-Although the second application was time consuming, all other six applications were dealt with within 8-20 days.

CONCLUSION: Following on from the above, there has been no breach of Article 5 (4) of the Convention.

KHAN v. UNITED KINGDOM ( W2 ) : facts of the case

Facts of Significance:

-Applicant searched at Manchester airport for heroin; not found.
-Applicant goes to another suspect's house and admits to possession of heroin; both not aware of the listening devices in the suspect's home.

Complaint:

-Evidence obtained by the listening device should have been inadmissible.
-Violation of Article 8 and Article 6 (1) of the Convention.

KHAN v. UNITED KINGDOM ( W2 ) : criterias for determining if the admissible statements sought by covert listening devices constitute a violation of Article 8 of the Convention?

a)Was there an interference?

Yes -setting up of listening devices as a means of surveillance by police falls under the ambit of interference.

b)Was the interference in accordance with law?

-This requires compliance with domestic law and the quality of law i.e. compatibility with the rule of law (sufficiently clear?)

-In this case, there existed no statutory system to regulate the use of covert listening devices.

-The Home Office Guidelines were not legally binding or publicly accessible at the time.

c)Was the interference necessary in a democratic society?

The Court is not required to determine this due to the findings in b).

KHAN v. UNITED KINGDOM ( W2 ) : criterias for determining if the admissible statements sought by covert listening devices constitute a violation of 'fair trial' under Article 6 (1) of the Convention?

a) Had the rightsof defense been violated?

No; the applicant was given the opportunity to challenge the authenticity of the recording and its use as well as examining P. and the police officer who made the recordings.

b) Weight of the Evidence

This was not the only evidence that led to Khan's conviction.

However, it was still a strong and reliable source.

c) Voluntary Nature of Evidence

Khan had made the statements voluntarily. There was no entrapment or inducement.

d) Assessment of Fairness

The fairness of admissibilityof evidence was evaluate at each stage of court proceedings. No court found it to contribute to any substantive unfairness of the trial.

BROGAN AND OTHERS v. UNITED KINGDOM ( W2 ) : relevant facts of the case

Facts of Significance:

-Brogan and others were arrested at their homes, questioned on a terrorism centered attacks against Northern Ireland.

-Applicants in detention for five days, not brought before a judge.

Complaint:

-Complained of not being brought promptly before a judge.

-Violation of Article 5 (1) and 5 (3) of the Convention.

BROGAN AND OTHERS v. UNITED KINGDOM ( W2 ) : criterias for determining if there was a violation of Article 5 (1) of the Convention?

a)Was the arrest lawful?

Yes.

b)Did the police evidently act in bad faith?

-No.

-The evidence against them may have been unobtainable. In their case, it may have been difficult to procure without endangering the lives of others, given the nature of offense.

-There is no reason to believe that the police acted in bad faith or that the detention was not meant to further conduct investigations on grounds for arrest.

-It is therefore assumed that if it would have been possible the police would've instituted charges and brought them before a competent legal authority.

BROGAN AND OTHERS v. UNITED KINGDOM ( W2 ) : criterias for determining if there was a violation of Article 5 (3) of the Convention?

-If the arrested person is not released promptly, he must promptly be brought before a judge/judicial officer.

-The scope for flexibility in interpreting and applying the notion of "promptness" is very limited.

-Even the shortest of the four periods of detention, namely the four days and six hours spent in police custody by Mr McFadden, falls outside the strict constraints as to time permitted by Art. 5 (3) ECHR.

ALLAN v. UNITED KINGDOM ( W3 ) : facts of the case

-Applicant is detained, police install bugs in his cell with audio and video technology.

-H., a police informant is placed inside his cell; all their conversations recorded.

-Recordings used in trial; applicant admits to presence during murder, but this is only based on H.'s word and not the recordings.

-Applicant challenges the admissibility of evidence.Complaint:

-Use of covert video and audio recordings as evidence.

-Alleged violation of Article 8 and Article 6 (1) of the Convention

ALLAN v. UNITED KINGDOM ( W3 ) : Did the installation of covert audio and video recording technology constitute a violation of Article 8 of the Convention?

-Audio recordings fall within the scope of Article 8 under respect for 'private life', and amount to an interference.

-This interference by a public authority is justified only when is necessary in a democratic society (national security, public health or morals, public safety, economic well-being of the country, protection of rights and freedoms of others), and in accordance with the law (compliance with domestic law and the rule of law i.e. foreseeable and accessible).

-The Government accepts that placing audio and video recording devices in the prisoner's cell and visiting area was a violation of Article 8 (1).

-The measures were not used in "accordance with law", as prescribed under Article 8 (2)

ALLAN v. UNITED KINGDOM ( W3 ) : Did the use of covert video and audio recordings constitute a violation of 'fair trial' under Article 6 (1) of the Convention?

-This requires a qualitative assessment of the circumstances of every individual case.

-Violation is dependent on the relationship between the informer and the State, and the informer and the accused; the right to silent is infringed when the informer acts as an agent of the State and causes the accused to make the statement.

-An informer is regarded as an agent of State depending on whether the exchange between the accused and the informer would have taken place, in the form and manner it did, but for the intervention of State authorities.

-Whether the evidence in question was elicited by the informer would depend upon whether the exchange between informer and accused was the 'functional equivalent' of an interrogation.-In this case, the police had coached H. and instructed him to push for what he could. This was the functional equivalent of an interrogation.-After the applicant had availed himself of the right to silence, the police placed H. in his cell for the purpose of eliciting information. His statements, which were not spontaneous and unprompted, were an infringement of the accused's will.

-There was no special relationship between H. and the applicant.-Moreover, the applicant was subject to many psychological pressures -suspect for murder, police interrogations, etc.


Therefore, there was an infringement of the applicant's right to remain silent and right against self-incrimination, rendering the trial unfair

SAUNDERS v. UNITED KINGDOM ( W3 ) : facts of the case

Facts of Significance:

-Applicant's company known to commit unlawful share-support operations.

Complaint:

-He had been denied a fair trial wherein statements were taken from him under compulsion i.e. self-incrimination.

SAUNDERS v. UNITED KINGDOM ( W3) : Was there a violation of Article 6 (2) of the Convention?

a) Was the applicant under compulsion to give evidence?

-Yes, the applicant was subject to legal compulsion.

-Some of the applicant's statements were incriminating in nature in the sense that they contained admissions to knowledge of information which tended to incriminate him.

a) Were the statements in testimony of the applicant used incriminatingly in Court by the prosecution?

-Yes, the statements were read to the jury for a three-day period despite the applicant's objections.

-Such an extensive use points to the fact that the prosecution significantly needed these statements to establish the applicant's dishonesty.

-They were used to cast doubts on the applicant's version of events, and establish the applicant's knowledge of payments to persons involved in the share-support operations.

JALLOH v. GERMANY ( W3) : facts of the case

Facts of Significance:

-The applicant was observed takinga tiny plastic bag (assumed to be drugs) out of his mouth and hand it over to another person in exchange for money.

-Applicant was taken to a hospital -questioned about medical history (disputed).

-Applicant refused to takethe medication necessary to provoke vomiting -held down and immobilised by four police officers -forcibly administered salt solution and forced syrup through a tube introduced into his stomach through the nose-Applicant declared fit for detention after 1.5 hours.

-In cell, stated in broken English that he was too tired to make a statement -remanded in custody.

-Was only able to drink liquids + nose bled + continuous pain in the upper region stomach

Complaint:

-Forcibly obtaining evidence from Jalloh's body amounts to inhuman and degrading treatment.

-Alleged violation of Art. 3 of the Convention.

JALLOH v. GERMANY ( W3 ) : Did the forceful obtainment of evidence from Jalloh's body constitute a violation of Article 3 of the Convention?

a)Was the forcible medical intervention necessary to obtain evidence?
b)Health risks attendant on the forced medical intervention
c)Manner in which the emetics were administered
d)Degree of medical supervision available
e)Effects of the impugned measure on the suspect's health

JALLOH v. GERMANY ( W3) : Did the use of evidence obtained by forced administration of emetics violate the applicant's right to a fair trial under Article 6 of the Convention?

a) Were the rights of the defendant protected?

-Yes.
-The applicant was given the opportunity, which he took, of challenging the use of the drugs obtained by the impugned measure.

b) Did the use of evidence render the trial unfair?

i.Nature and degree of compulsionoForcing the applicant to regurgitate the drugs significantly interfered with his physical and mental integrity.

oThe applicant's treatmentwas already found to be inhuman and degrading in violation of Article 3.

ii. Weight of public interest to the impugned measure targeted a street dealer who was offering drugs for sale on a comparatively small scale; he was given a six-month suspended prison sentence and probation.

o Therefore, the public interest in securing the applicant's conviction does not justify recourse to such a grave interference with his physical and mental integrity.

iii. Existence of relevant safeguards

o Domestic law did provide for safeguards against arbitrary or improper use of the measure; the applicant, relying on his right to remain silent, refused to submit to a prior medical examination.oHe could only communicate in broken English, which meant that he was subjected to the procedure without a full examination of his physical aptitude to withstand it

.iv. Use to which evidence obtained was put

o Drugs obtained following the administration of the emetics were the decisive evidence in his conviction for drug trafficking.

o The applicant was given and took the opportunity to oppose the use at his trial of this evidence.

o However, any possible discretion the national courts may have had to exclude the evidence could not come intoplay, as they considered the impugned treatment to be authorised by national law.

GAFGEN v. GERMANY ( W3) : facts of the case

Facts of Significance:

-The applicant lured J., aged 11,into his flat in Frankfurt am Main by pretending that the child's sister had left a jacket there. He then killed the boy by suffocating him

.-The applicant deposited a ransom note at J.'s parents'place of residence stating that J. had been kidnapped and demanded onemillion euros.

-The applicant then drove to a pond -hid J.'s corpse under a jetty.

-From when the applicant picked up the ransom, he was under police surveillance.

-Arrested with the police pinning him face down on the ground-examined by a doctor on account of shock and skin lesions.

-Applicant threatened with subjection to considerable pain at the hands of a person specially trained for such purposes if he did not disclose the child's whereabouts+ lock him in a cell with two huge black men who would sexually abuse him

-Applicant hit him several times on the chest with his hand + his head hit the wall.

-Out of fear,the applicant disclosed the whereabouts of J.'s bodyafter approximatelyten minutes.

Complaint:

-Physical force + threat to inflict a considerable amount of pain →applicant gave incriminating statementout of fear

-Alleged violation of Art. 3 of the Convention.

GAFGEN v. GERMANY ( W3 ) : Did the actions of authorities to obtain a confession from the applicant constitute torture, in violation of Article 3 of the Convention?

a) Duration of impugned conduct
b) Physical and mental effects
c) Spontaneous act?
d) Purpose of threats
e) Context of threats

GAFGEN v. GERMANY ( W3) : Did the use of aforementioned evidence violate the applicant's right to a fair trial under Article 6 of the Convention?

There must be a causal link between theapplicant's interrogation in breach of Article 3 and the real evidence secured by the authorities.


-An issue arises under Article 6 in respect of evidence obtained as a result of methods in violation of Article 3 only if such evidence was not excluded from use at theapplicant'scriminal trial →which was not the case here.

-The findings decisive for the applicant's conviction for murder and kidnapping with extortion -exclusively on the new, full(second) confessionmade by the applicant at the trial.

-The impugned real evidencewas notnecessary,andwasnot used to prove him guilty or to determine his sentence = break in the causal chain

-Privilege against self-incriminationwas complied within the proceedings against the applicant (second confession)

SALDUZ v. TURKEY ( W3 ) : facts of the case

Facts of Significance:

-The applicant was taken into custody on suspicion of having participated in an unlawful demonstration in support of an illegal organization.

-Mr. Salduz admitted his involvement and gave names of other persons.

-Also accused of hanging an illegal banner from a bridge.

-Later claims that his statements had been extracted under duress; he was beaten up and insulted.

-He claimed he was visiting a friend at the time of protest.

Complaint:

-He complains of the denial of access to a lawyer while in custody.

-Violation of Article 6 (3) of the Convention

SALDUZ v. TURKEY ( W3 ) : Did the denial of access to a lawyer while in police custody constitute a violation of Article 6 (3) of the Convention?

-The right of everyone to be effectively defended by a lawyer is a fundamental feature of a 'practical and effective' fair trial and a fundamental safeguard against ill-treatment.

-An accused often finds himself in a vulnerable position at the investigation stage of proceedings. This is amplified by the increasing complexity of the case. Therefore, this vulnerability can only be compensated for by the provision of a lawyer who ensures that the accused does not incriminate himself.

-The prosecution must find the accused guilty without methods of coercion against the will of the accused.

-It is the heaviest penalties that require the respect of fair trial to be ensured with the highest degree in a democratic society.

-In this case, the applicant was not provided a lawyer when he made his statements to the police, public prosecutor and investigating judge.

-No justification for this was provided by the authorities on a systematic basis under relevant legal provisions.

-Moreover, his statement to the police had been usedas main evidence for his conviction, despite his later denial of its accuracy.

-Specific importance should have been given with regards to the applicant's need for a lawyer considering his age -he was a minor.

-Therefore, there was an irretrievable damage to his defense rights.

DE SALVADOR TORRES v. SPAIN ( W4 ) : facts of the case

Facts of Significance:

-Criminal proceedings against Mr. De Salvador Torres for embezzlement of public funds.

-Changed to simple embezzlement.

-Finally, embezzlement of public funds by the Supreme Court again.

Complaint:

-He complained that he had not been sufficiently informed of the nature of charges against him.

-Violation of 6 (3) of the Convention.

DE SALVADOR TORRES v. SPAIN ( W4) : Was there a violation of Article 6 (3) of the Convention?

-In Spanish law, the offence of embezzlement of funds requires that the offender be a civil servant or an administrator of funds in a public institution.

-The initial investigating judge made charges for embezzlement of public funds. Moreover, the applicant himself stated that he fell within the category of those entrusted with public funds i.e. an administrator of funds in a public institution.

-So, the public nature of the applicant's position was intrinsic to his original application. He should have known this from the very outset.

-Therefore, he should have been aware of the possibility that a simple embezzlement could aggravate to embezzlement of public fund

PELISSIER AND SASSI v. FRANCE ( W4 ) : facts of the case

Facts of Significance:

-Applicants charged with criminal bankruptcy, but convicted of aiding and abetting criminal bankruptcy.

Complaint:

-Applicants charged with criminal bankruptcy, but convicted of aiding and abetting criminal bankruptcy.

-Violation of Article 6 (3)(a) of the Convention.

PELISSIER AND SASSI v. FRANCE ( W4) : Was there a violation of Article 6 (3) of the Convention?

a) Basis of Investigation?
b) Were the applicants aware?
c) Should the applicants have been aware?

KOLEV AND OTHERS ( W5 )

✓Within two years of criminal investigations: sufficient evidence?formulation accusation ➞inspection of case file ➞investigations concluded ➞preparation of the trial (= formulation final indictment / right to information) ➞trial

✓After two years of criminal investigations: insufficient evidence or other reasons.

Defense may request the court to order the prosecutor to end the investigations within three months (i.e. ending investigations + dismiss the case or sending the case for trial)oif not on time, the court must end the proceedingsoif case sent for trial: in case of procedural errors, the case goes back to prosecution to restore the error. New error or not on time? Case closed!


•Defence rights must always be respected to a minimum, meaning that reasonable time must also be respected, however criminal punishments can still be left unfinished

•If you are informed before the trial on the merits start, that is sufficient time to prepare for your defence

•Principle of immutability -court must inform the victim in time to prepare for a new defence: the opportunity to view new evidence and prepare

DE CUBBER v. BELGIUM ( W5 ) : facts of the case

Facts of Significance:
-Mr. Cubber issued arrest warrant for forgery.

-Mr. Pilate, his investigating judge (who had also dealt with his cases before), also becomes a judge in a trial court.

-Mr. Cubber is sentenced to a 5 year imprisonment.

Complaint:

-Mr. Pilate's role as an investigative judge and judge at trial had affected the impartiality of the tribunal.

-Violation of Article 6 (1) of the Convention.

DE CUBBER v. BELGIUM ( W5 ) : criteria to establish whether Mr. Pilate's role as an investigative judge and judge at trial affect the impartiality of the tribunal, thereby violating Article 6 (1) of the Convention?

a) Subjective Approach

-This approach requires ascertaining the personal conviction of a judge in a given case i.e. his impartial state of mind; he is presumed to be impartial until there is proof to show otherwise.

-In this case, there is nothing to indicate that Mr. Pilate had displayed any hostility or ill-will towards Mr. De Cubber.

b) Objective Approach

-The approach requires that justice must not only be done, it must be seen to be done.

-It takes into account appearances, hierarchical or other links between the judge and others involved in the case, extent and nature of decisions, and an examination of functions exercised and internal organization of the judiciary.

-The applicant must be offered a guarantee that there is no legitimate doubt in the above factors.

-In this case, there appears to be a weak distinction between the public prosecutor's department and investigative judges.

-The investigative judge yields a wide range of powers -he can take any steps which are not forbidden by law or incompatible with the standing of his office.

-The preparatory investigation is conducted in secret, in the absence of both parties. The accused may be of unease to see the judge who arrested and interrogated him, also deciding on his sentence.

-The judge in question would also be thorough with the documents before-hand; he would have a crucial role to play over his colleagues. His pre-formed opinion may contaminate the verdict.

-Lastly, in Belgium, it is not allowed for an investigative judge to sit in assize or appeal court proceedings.

-The criminal court is required to review the lawfulness of the measures undertaken by the investigative judge

-the trial judge being involved in his own review seems unfit

SALDUZ v. TURKEY : facts of the case ( W3)

Facts of Significance:

-The applicant was taken into custody on suspicion of having participated in an unlawful demonstration in support of an illegal organization.

-Mr. Salduz admitted his involvement and gave names of other persons.

-Also accused of hangingan illegal banner from a bridge.

-Later claims that his statements had been extracted under duress; he was beaten up and insulted.

-He claimed he was visiting a friend at the time of protest.

Complaint:

-He complains of the denial of access to a lawyer while in custody

-Violation of Article 6 (3) of the Convention

SALDUZ v. TURKEY (W3) : Criterias on whether the denial of access to a lawyer while in police custody constitute a violation of Article 6 (3) of the Convention?

-The right of everyone to be effectively defended by a lawyer is a fundamental feature of a 'practical and effective' fair trial and a fundamental safeguard against ill-treatment.

-An accused often finds himself in a vulnerable position at the investigation stage of proceedings. This is amplified by the increasing complexity of the case. Therefore, this vulnerability can only be compensated for by the provision of a lawyer who ensures that the accused does not incriminate himself.

-The prosecution must find the accused guilty without methods of coercion against the will of the accused.

-It is the heaviest penalties that require the respect of fair trial to be ensured with the highest degree in a democraticsociety.

-In this case, the applicant was not provided a lawyer when he made his statements to the police, public prosecutor and investigating judge.

-No justification for this was provided by the authorities on a systematic basis under relevant legal provisions.

-Moreover, his statement to the police had been used as main evidence for his conviction, despite his later denial of its accuracy.

-Specific importance should have been given with regards to the applicant's need for a lawyer considering his age -he was a minor.-Therefore, there was an irretrievable damage to his defense rights.

VAN MECHELAN AND OTHERS v. NETHERLANDS (W6) : facts of the case

Facts of Significance:

-Van Mechelan and his accomplices commit several robberies.

-They rob the post office and escape in cars; all of which are identified.

-They also harm police officers by open firing; charged with attempted manslaughter, and robbery with threat of violence.

-All witnesses (except one) were anonymous; reason →their occupation as a police officer and protection of family.

Complaint:

-There conviction had decisively been based on anonymous witness testimonies by police officers.

-Violation of Article 6 (1) and 6 (3)(d) of the Convention

VAN MECHELAN AND OTHERS v. NETHERLANDS (W6) : Did the conviction of applicants decisively based on anonymous witness testimonies constitute a violation of Article 6 of the Convention?

a)Was the anonymity justified?

-Although their position deserves protection, police officers owe a duty of obedience to the state and have links with the prosecution; they should resort to anonymity only in exceptional cases.

-Moreover, it is the nature of their duty that they may, as arresting officers, be involved as part of evidence under open court.

-Furthermore, there is no proof that the applicant's posed any threat to the families of the witnesses. One witness was civilian and non-anonymous, he was never threatened.

b) Were there sufficient counter balancing procedures in place with regards the handicaps faced by the defence due to anonymity?

-Police officers were in a separate room with the investigating judge. All communication with defense was via sound.

-The defense was unable to observe their behavior under direct questioning and discern their reliability.

-Anonymity was an extreme measure; less-far reaching measures could have been applied, considering point

-While the investigating judge had vouched for the liability of the witness, this cannot be treated as a substitute for the possibility of the defense to question and measure reliability.

c) Was the conviction solely or decisively based on the testimonies of the anonymous witnesses?

-Yes, decisively

SCHATSCHASHWILI v. GERMANY ( W6 ) : facts of the case

Facts of Significance:

-Applicant and accomplice committed two robberies.

-Witnesses of the second robbery (whom the applicant threatened to kill) gave statements during investigation.

-They later left to Lithuania, refusing to be part of the trial for medical reasonsand fear of life.

Complaint:

-Neither the applicant nor his lawyer had been granted an opportunity, at any stage of criminal proceeding, to examine witnesses O. and P.

-Violation of Article 6 (1), 6 (3-d) of the Convention.

SCHATSCHASHWILI v. GERMANY (W6) : Did the defense's inability to examine witnesses O. and P. at any stage of proceeding constitute a violation of Article 6 (1)and 6 (3-d) of the Convention ?

a)Whether there was a good reason for the non-attendance of the witness, and, for the admission of the absent witness' untested statements as evidence?

-The Regional Court did everything in its power to ensure the presence of the witnesses O. and P.

-It contacted the witnesses individually and offered them different options to testify at the trial; the witnesses declined.

-It re-coursed to internationallegal assistance and requested that they be summoned before a Latvian Court so that the Regional Court could examine them via video link; the hearing was cancelled due to apparent medical reasons.

-Further suggested the Latvian Court to examine the witnesses' health by a public medical officer; no response received.

-Therefore, the witnesses' absence was not imputable to the domestic courts; there was a good reason for their non-attendance.

b) Was the evidence of the absent witness the sole and decisive basis for the defendant's conviction?

-There was further available evidence, but that was mere hearsay and circumstantial evidence.

-O. and P. were the only eye witnesses, making them 'decisive' in the defendant's conviction.

c)Were there sufficient counter-balancing factors, including strong procedural safeguards, to compensate the handicapscaused to the defense (as to ensure that the trial as a whole was fair)?

i. Trial Court's approach to untested evidence-The Regional Court addressed the evidence with extreme caution.

-It was well aware of the reduced evidentiary value of the absent witnesses' statements.

-Therefore, their credibility was assessed with due care.

ii.Availability and strength of further evidence

-Other evidence →hearsay, circumstantial.

-The applicant had the opportunity to narrate his own version of the events and to examine the credibility of the additional evidence.

iii.Procedural measures aimed at compensating for the lack of opportunity to directly cross-examine the witness at the trial?

-The prosecuting authorities should have, in the initial presence of the witnesses, appointed a lawyer for the applicant.

-The lawyer would have been present at the witness hearing before the investigative judge.

-They took the foreseeable risk that the witnesses would be absent at the trial.

-This was not justified substantially.

iv.Assessment of the trial's overall fairness

-Although the trial court made a careful assessment of evidence and the defense was given ample opportunity to examine the additional evidence, the counterbalancing measures for the defendant's inability to examine the decisive witnesses were not in place.

-Therefore, the trial as a whole was unfair

NATSVLISHVILI AND TOGONIDZE v. GERMANY (W6) : facts of the case

Complaint:

-Plea-bargaining was incorrectly established.

-Violation of Article 6 (1) of the Convention.

NATSVLISHVILI AND TOGONIDZE v. GERMANY (W6) : Did the plea bargaining violate Article 6 (1) of the Convention?

-Plea bargaining constitutes a waiver of several procedural rights, and therefore must be established with the following minimum standards;

i.In an unequivocal manner

ii.Minimum safeguards in proportion to its importance.

a)Unequivocalness of the manner in which it was applied

-It was a conscious and voluntary decision.

-The applicant was aware of the legal consequences of his decision. He himself asked the prosecuting authority to arrange for it.

-He was represented by qualified lawyers who advised him.

-Therefore, it was unequivocally requested and in no way imposed by prosecution by duress or false promises.

b)Minimum safeguards i.e. the content of the bargain and the fairness with which it was arranged was put under judicial review

-It was written.

-Therefore, the exact terms of the agreement, as well as preceding negotiations, were sufficiently clear for judicial review.

-The plea bargain was examined and approved in a public hearing -enhancing the quality of judicial review.

KREMZOW v. AUSTRIA ( W7) : facts of the case

Facts of Significance:

-Applicant a retired lawyer; now a consultant for practicing lawyers.-Admits to killing Mr. P. (whom he allegedly defrauded due to financial difficulties -feared that his offences would be discovered)

-Later claimed that he confessed due to a psychotic aberration and Mr. P committed suicide.

-Filed a plea of nullity that he had not been able to defend himself; trial was unfair.

-Furtherappeal against sentence in Supreme Court also held without his presence.

Complaint:

-Unable to defend himself; trial was unfair.-Violation of 6 (1) →6 (3)(b) of the Convention.

-Violation of 6 (1) →6 (3)(c) of the Convention

KREMZOW v. AUSTRIA (W7) : Did non-receipt of the Attorney General's position paper constitute a violation of Article 6 (1) →Article 6 (3)(b) of the Convention?

-The defence must have adequate time and facilities to formulate a response to the corquis.

-In this case the counsel received the corquis three weeks before the date fixed for the corquis. This was sufficient opportunity for the defense to formulate a reply.

-Although the applicant has been disadvantaged in the preparation of his defence, he nevertheless had 'adequate time and facilities' to formulate his response to the corquis.

KREMZOW v. AUSTRIA (W7) : Did inability to inspect the file in person constitute a breach of Article 6 (1) →Article 6 (3)(b) of the Convention?

Restriction of the right to inspect the court file to an accused's lawyer is not incompatible with the rights to the defence under Article 6.

KREMZOW v. AUSTRIA (W7) : The Supreme Court notified the applicant of the rejection of his request to attend the plea of nullity proceedings on the dayof the proceedings. Did this constitute a violation of Article 6 (1) →Article 6 (3)(b) of the Convention?

There is no proof or indication that this notification unduly hampered the defense in preparing for the case.

KREMZOW v. AUSTRIA (W7) : Did the applicant's non-attendance at the plea of nullity proceedings constitute a violation of Article 6 (1) →Article 6 (3)(c) of the Convention?

The need for presence of an applicant is dependent upon, unfulfillment of which will lead to a violation of Article 6 (1) →Article 6 (3)(c) of the Convention

a) Special features of the proceedings involved (questions of law or questions of fact)

-Nullity proceedings are primarily concerned with questions of law that arise with regards to the conduct of the trial and other matters.

-Therefore, it was sufficient for the applicant's legal counsel to be present.

b) The manner in which the defendant's interests were protected and presented before the court

-The applicant was adequately legally represented, his interests protected and presented before the court.

-Therefore, his presence was not required.

c)Importance of the proceedings to the applicant

-From points a) and b), as these proceedings merely discussed points of law instead of questions of fact, they were not significant to the applicant

KREMZOW v. AUSTRIA (W7) : Did the applicant's non-attendance at the appeal against sentence proceedings constitute a violation of Article 6 (1) →Article 6 (3)(c) of the Convention?

The need for presence of an applicant is dependent upon the following, unfulfillment of which will lead to a violation of Article 6 (1) →Article 6 (3)(c) of the Convention;

a) Special features of the proceedings involved (questions of law or questions of fact)

-The proceedings discussed increase in the applicant's sentence, his admittance to a special institution or a normal prison, and a discussion on the 'motive' for his offense.-These are questions of fact. Therefore, the applicant should have been present along with his legal counsel.

b) The manner in which the defendant's interests were protected and presented before the court

The applicant was adequately legally represented, his interests protected and presented before the court.

c)Importance of the proceedings to the applicant

-These proceedings were of crucial importance to the applicant as they discussed his character, state of mind, and motive.

-The outcome of these proceedings could be of major detriment tohim i.e. there was a lot at stake.

-That he was not provided an opportunity to participate together with his counsel affected the fairness of the proceedings.

-It is the positive duty of the State to ensure this opportunity in such a case

TAXQUET v. BELGIUM (W7) : facts of the case

Facts of Significance:

-Taxquet, along with seven co-defendants, was charged with pre-meditated murder.

-An anonymous witness tipped off the police with regards his specific involvement.

-The jury was asked thirty-two questions; four applied to the applicant, all answered yes.

-Taxquet accused for premeditated murder.

Complaint:

-The verdict did not contain any reasoning for Taxquet's conviction; he complained of arbitrary justice.

-Violation of Article 6 (1) of the Convention.

TAXQUET v. BELGIUM ( W7) : Did the lack of reasoning for a guilty verdict by a lay jury constitute a violation of Article 6 (1) of the Convention?

-The accused and the public must understand the verdict; this is a vital safeguard against arbitrariness. Reasoned decisions demonstrate that parties have been heard, oblige judges to create objective arguments, and preserve the rights of the defense.

-Simply the absence of a reasoned verdict by the jury does not constitute a breach.

-Since jurors are not required (or permitted) to give reasons for their personal convictions, adequate safeguards must be present in order to avoid arbitrariness and enable the accused to understand the conviction against him.

-Procedural safeguards may include -directions or guidance provided by the presiding judge to the jurors on legal issues arising/evidence in play, precise and unequivocal questions put to the jury, forming a framework on which the verdict is based, sufficiently compensating for the fact that the jury provided no reasons.

-In this case, neither the indictment nor the questions posed to the jury contained sufficient information as to the applicant's involvement.

-The indictment must indicate the nature of offense forming the basis of the charge, and the circumstances which may cause the sentence to increase or reduce. Although this indictment listed the offenses, it did not indicate which items the prosecution could use against him.

-The questions to the jury were poorly worded and applicable to all defendants equally; no precise justification for the applicant's guilty verdict was provided. Moreover, only a select 4 questions out of 32 applied to the applicant.


-Therefore, sufficient safeguards enabling the applicant to understand why he was found guilty were not provided

COLOZZA v. ITALY (W5): facts of the case

Facts of Significance:

-Mr. Colozza committed various alleged offences -including fraud.-Could not be questioned or contacted about proceedings because of address change.

-Searched at a 10-year-old address as well.

-Eventually regarded as a 'latitante' -person willfully evading the execution of a warrant issued by a court.

-Mr. Colozza sentenced to a six year imprisonment + fine.

-Public Prosecutor's office located him, arrested him.

-He raised a 'procedural objection' and a late appeal. He had been wrongly declared latitante, therefore the judgement was null and void.-His landlord had given him a notice to quit; he lived in a hotel before finding a new flat


Complaint:

-Mr. Colozzawas not aware of the proceedings against him and could therefore not defend himself in a practical and effective manner.

-Violation of Article 6 (1) of the Convention.

COLOZZA v. ITALY (W5) : Was the holding of the trial in absentia with the accused unaware, a violation of Article 6 (1) of the Convention?

a) Waiver by the defendant is established in an unequivocal manner (Salduz V. Turkey -willingly, knowingly, intelligently)

-The Court is not required to determine the conditions within which the accused waive exercise of his right to appear at the hearing, as it is illustrated by relevant case law.

-The right must be waved in an unequivocal manner i.e. knowingly, willingly, intelligently.

-A person who is in a situation like that of Mr. Colozza must not be left with the burden of proving that he was not seeking to evade justice or that his absence was force majeure.

b) The Courts exercise a reasonable amount of due diligence in the attempts to contact the accused

-The Italian authorities only relied on a presumption and inferred the status of'latitante' which, according to them, was enough for a waiver.

-This presumption did not have sufficient basis. The attempts to trace him were inadequate and confined to the address they knew he was no longer residing in.-Since the Rome Public Prosecutor'sOffice and Rome Police succeeded in finding and arresting him, it was possible to locate him even without a data-bank.

c) There is a possibility of re-trial

-A late appeal is an insufficient criterion for re-trial.

-When domestic law permits a trial in absentia, the person should be able to obtain a fresh determination of the merits of charge against him.

-The Court of Appeal could have determined these when the competent authorities failed to comply with the rules governing declarations that an accused is latitante. And the person accused then has to prove that he was not evading justice. But neither of the two courts paid heed to this

LALA v. NETHERLANDS (W5) : facts of the case

Facts of Significance:

-Applicant sentenced to pay a fine. Did not pay, liable to detention.
-Trial in absentia, convicted Mr. Lala of forgery for concealing income to avail social security benefits.
-Mr. Lala filed an appeal, did not appear at Court of Appeal.
-Reason by counsel -still liable to a fine, risk of immediate arrest
.-Court of Appeal convicted Mr. Lala, he filed an appeal with the Supreme Court.

Complaint:
-The Court of Appeal did not allow his counsel to speak last, as required by law.
-Counsel not allowed to conduct defense (although counsel had signaled the wish to do so by being present).
-Violation of Article 6 (1), (3) of the Convention

LALA v. NETHERLANDS (W5) : criteria for whether the disallowance of the accused's counsel to conduct defense in his absence violate Article 6 (1) and (3) of the Convention?

-Mr. Lala was charged by his counsel to conduct his defense. The counsel attended the trial at the appropriate time, fully robed, with clear intention to conduct the defense.

-In the interest of a fair and just criminal process, the accused should appear at his trail.-However, it is of greater importance for the fairness of criminal justice system the accused be adequately defended (both on first instance and appeal).

-The fact that the defendant, even after having being properly summoned, does not appear, cannot -even in the absence of a legitimate and compelling excuse -justify depriving him of his rights under Article 6 (3) ECHR to be defended by a counsel.

-Everyone has the right to be defended by counsel -its exercise should not be limited by the fulfillment of a formalistic condition.

-It is, therefore, for Courts to ensure that a trial is fair and that the counsel who attends the trial is given the adequate opportunity to conduct defense.