Fairness & Participation
Article 6.1 of the Convention
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair… hearing… by [a] tribunal …”
Article 6, read as a whole, guarantees the right of an accused to participate effectively in a criminal trial (Murtazaliyeva v. Russia [GC], 2018,.91). In general, this includes, inter alia, not only his or her right to be present, but also to hear and follow the proceedings. Such rights are implicit in the very notion of an adversarial procedure and can also be derived from the guarantees contained in sub-paragraphs (c), (d) and (e) of paragraph 3 of Article 6 (Stanford v. the United Kingdom, 1994,.26). Accordingly, poor acoustics in the courtroom and hearing difficulties could give rise to an issue under Article 6 (§ 29).
The Court also held that an accused’s effective participation in his or her criminal trial must equally include the right to compile notes in order to facilitate the conduct of the defence (Pullicino v. Malta (dec.), 2000; Moiseyev v. Russia, 2008,.214). This is true irrespective of whether or not the accused is represented by counsel. Indeed, the defence of the accused’s interests may best be served by the contribution which the accused makes to his lawyer’s conduct of the case before the accused is called to give evidence.
The dialogue between the lawyer and his client should not be impaired through divesting the latter of materials which set out his own views on the strengths and weaknesses of the evidence adduced by the prosecution. However, the Court stressed that different considerations may apply to the actual use of notes by an accused during his examination-in-chief or cross-examination. The credibility of an accused may be best tested by how he reacts in the witness box to questioning. A domestic court may therefore be justified in preventing an accused’s reliance on written recollections of events or the reading out of notes in a manner which suggests that the evidence given has been rehearsed (Pullicino v. Malta (dec.), 2000). Similarly, the Court has held that Article 6 of the Convention does not provide for an unlimited right to use any defence arguments, particularly those amounting to defamation (Miljević v. Croatia, 2020, §§ 55 and 64-66, concerning the defendant’s freedom of expression under Article 10 of the Convention).
An issue concerning lack of effective participation in the proceedings may also arise with regard to a failure of the domestic authorities to accommodate the needs of vulnerable defendants (Hasáliková v. Slovakia, 2021,.69, concerning defendants with intellectual impairments). Thus, as regards the juvenile defendants in trial proceedings, the Court has held that the criminal proceedings must be so organised as to respect the principle of the best interests of the child. It is essential that a child charged with an offence is dealt with in a manner which fully takes into account his or her age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings (V. v. the United Kingdom [GC], 1999, §§ 85- 86). The right of a juvenile defendant to effectively participate in his criminal trial requires that the authorities deal with him with due regard to his vulnerability and capacities from the first stage of his involvement in a criminal investigation and, in particular, during any questioning by the police. The authorities must take steps to reduce as far as possible the child’s feelings of intimidation and inhibition and to ensure that he has a broad understanding of the nature of the investigation and the stakes, including the significance of any potential penalty as well as his rights of defence and, in particular, his right to remain silent (Blokhin v. Russia [GC], 2016, 195).
A measure of confinement in the courtroom may also affect the fairness of a hearing by impairing an accused’s right to participate effectively in the proceedings (Svinarenko and Slyadnev v. Russia [GC], 2014,.134). The degrading treatment of a defendant during judicial proceedings caused by confinement in an overcrowded glass cabin in breach of Article 3 of the Convention would be difficult to reconcile with the notion of a fair hearing, regard being had to the importance of equality of arms, the presumption of innocence, and the confidence which the courts in a democratic society must inspire in the public, and above all in the accused (Yaroslav Belousov v. Russia, 2016,.147).
Nevertheless, security concerns in a criminal court hearing may involve, especially in a large- scale or sensitive case, the use of special arrangements, including glass cabins. However, given the importance attached to the rights of the defence, any measures restricting the defendant’s participation in the proceedings or imposing limitations on his or her relations with lawyers should only be imposed to the extent necessary, and should be proportionate to the risks in a specific case (ibid.,.150). In Yaroslav Belousov v. Russia, 2016 (§§ 151-154), the Court declared as violations of Article 6.1 the applicant’s inability to have confidential exchanges with his legal counsel during the trial due to his placement in a glass cabin, and the trial court’s failure to recognise the impact of these courtroom arrangements on the applicant’s defence rights.
Similarly, as regards the use of a video link in the proceedings, the Court has held that this form of participation in proceedings is not, as such, incompatible with the notion of a fair and public hearing. However, recourse to this measure in any given case must serve a legitimate aim and the arrangements for the giving of evidence must be compatible with the requirements of respect for due process, as laid down in Article 6. In particular, it must be ensured that the applicant is able to follow the proceedings and to be heard without technical impediments, and that effective and confidential communication with a lawyer is provided for (Marcello Viola v. Italy, 2006, §§ 63-67; Asciutto v. Italy, 2007, §§ 62-73; Sakhnovskiy v. Russia [GC], 2010,.98).
Equality of arms and adversarial proceedings
Equality of arms is an inherent feature of a fair trial. It requires that each party be given a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent (Öcalan v. Turkey [GC], 2005,.140; Foucher v. France, 1997,.34; Bulut v. Austria, 1996; Faig Mammadov v. Azerbaijan, 2017,.19). Equality of arms requires that a fair balance be struck between the parties, and applies to criminal and civil cases.
The right to an adversarial hearing means in principle the opportunity for the parties to have knowledge of and comment on all evidence adduced or observations filed with a view to influencing the court’s decision (Brandstetter v. Austria, 1991,.67). As a rule, from the perspective of the adversarial trial principle, the Court does not need to determine whether the failure to communicate the relevant document caused the applicant any prejudice: the existence of a violation is conceivable even in the absence of prejudice. Indeed, it is for the applicant to judge whether or not a document calls for a comment on his part (Bajić v. North Macedonia, 2021,.59). The right to an adversarial trial is closely related to equality of arms and indeed in some cases the Court finds a violation of Article 6 § 1 looking at the two concepts together.
There has been a considerable evolution in the Court’s case-law, notably in respect of the importance attached to appearances and to the increased sensitivity of the public to the fair administration of justice (Borgers v. Belgium, 1991,.24).
In criminal cases Article 6.1 overlaps with the specific guarantees of Article 6.3, although it is not confined to the minimum rights set out therein. Indeed, the guarantees contained in Article 6.3 are constituent elements, amongst others, of the concept of a fair trial set forth in Article 6.1 (Ibrahim and Others v. the United Kingdom [GC], 2016,.251). The Court has dealt with the issues of equality of arms and adversarial trial in a variety of situations, very often overlapping with the defence rights under Article 6.3 of the Convention.
Equality of arms
A restriction on the rights of the defence was found in Borgers v. Belgium, 1991, where the applicant was prevented from replying to submissions made by the avocat général before the Court of Cassation and had not been given a copy of the submissions beforehand. The inequality was exacerbated by the avocat général’s participation, in an advisory capacity, in the court’s deliberations. Similar circumstances have led to the finding of a violation of Article 6.1 concerning the failure to communicate the higher prosecutor’s observations on appeal to the defence (Zahirović v. Croatia, 2013, §§ 44-50).
The Court has found a violation of Article 6.1 combined with Article 6.3 in criminal proceedings where a defence lawyer was made to wait for fifteen hours before finally being given a chance to plead his case in the early hours of the morning (Makhfi v. France, 2004). Equally, the Court found a violation of the principle of equality of arms in connection with a Supreme Court ruling in a criminal case. The applicant, who had been convicted on appeal and had requested to be present, had been excluded from a preliminary hearing held in camera (Zhuk v. Ukraine, 2010,.35). The same is true for instances in which an applicant is not allowed to be present at a hearing before the appeal court while the representative of the prosecution is present (Eftimov v. the former Yugoslav Republic of Macedonia, 2015,.41).
In contrast, a complaint concerning equality of arms was declared inadmissible as being manifestly ill-founded where the applicant complained that the prosecutor had stood on a raised platform in relation to the parties. The accused had not been placed at a disadvantage regarding the defence of his interests (Diriöz v. Turkey, 2012,.25).
The failure to lay down rules of criminal procedure in legislation may breach equality of arms, since their purpose is to protect the defendant against any abuse of authority and it is therefore the defence which is the most likely to suffer from omissions and lack of clarity in such rules (Coëme and Others v. Belgium, 2000,.102).
Witnesses for the prosecution and the defence must be treated equally; however, whether a violation is found depends on whether the witness in fact enjoyed a privileged role (Bonisch v. Austria, 1985,.32; conversely, see Brandstetter v. Austria, 1991,.45). In Thiam v. France, 2018, §§ 63-68, the Court did not consider that the participation of the President of the Republic as a victim and civil party in the proceedings disturbed the principle of equality of arms although he could not be questioned as a witness in the proceedings due to a constitutional prohibition. The Court stressed that such a constitutional prohibition did not in itself contravene Article 6. It also noted, in particular, that in convicting the applicant, the national courts had not referred to any evidence against him adduced by the civil party that required them to test its credibility and reliability by hearing the President. The Court also noted that the nature of the case, the evidence available and the non-conflicting versions of the applicant and the civil party did not in any event require that the latter party be questioned. In addition, the Court had regard to the fact there was no indication in the case file that the President’s involvement had encouraged the public prosecutor’s office to act in a way that would have unduly influenced the criminal court or prevented the applicant from bringing an effective defence.
Refusal to hear any witnesses or examine evidence for the defence but examining the witnesses and evidence for the prosecution may raise an issue from the perspective of equality of arms (Borisova v. Bulgaria, 2006, §§ 47-48; Topić v. Croatia, 2013,.48). The same is true if the trial court refuses to call defence witnesses to clarify an uncertain situation which constituted the basis of charges (Kasparov and Others v. Russia, 2013, §§ 64-65). Thus, in all such instances, in determining whether the proceedings were fair, the Court may need to apply the relevant test set out in the Murtazaliyeva case, which aims to determine (1) whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation; (2) whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial; and (3) whether the domestic courts’ decision not to examine a witness undermined the overall fairness of the proceedings (Abdullayev v. Azerbaijan, 2019, §§ 59-60).3
The principle of equality of arms is also relevant in the matters related to the appointment of experts in the proceedings (Khodorkovskiy and Lebedev v. Russia (no.2), 2020,.499). The mere fact that the experts in question are employed by one of the parties does not suffice to render the proceedings unfair. The Court has explained that although this fact may give rise to apprehension as to the neutrality of the experts, such apprehension, while having a certain importance, is not decisive. What is decisive, however, is the position occupied by the experts throughout the proceedings, the manner in which they performed their functions and the way the judges assessed the expert opinion. In ascertaining the experts’ procedural position and their role in the proceedings, the Court takes into account the fact that the opinion given by any court-appointed expert is likely to carry significant weight in the court’s assessment of the issues within that expert’s competence (Shulepova v. Russia, 2008,.62; Poletan and Azirovik v. the former Yugoslav Republic of Macedonia, 2016,.94).
The Court has found that if a bill of indictment is based on the report of an expert who was appointed in the preliminary investigations by the public prosecutor, the appointment of the same person as expert by the trial court entails the risk of a breach of the principle of equality of arms, which however can be counterbalanced by specific procedural safeguards (J.M. and Others v. Austria, 2017,§ 121).
In this regard, the requirement of a fair trial does not impose on a trial court an obligation to order an expert opinion or any other investigative measure merely because a party has requested it. Where the defence insists on the court hearing a witness or taking other evidence (such as an expert report, for instance), it is for the domestic courts to decide whether it is necessary or advisable to accept that evidence for examination at the trial. The domestic court is free, subject to compliance with the terms of the Convention, to refuse to call witnesses proposed by the defence (Huseyn and Others v. Azerbaijan, 2011,.196; Khodorkovskiy and Lebedev v. Russia, 2013, §§ 718 and 721; Poletan and Azirovik v. the former Yugoslav Republic of Macedonia, 2016,.95).
Similarly, under Article 6 it is normally not the Court’s role to determine whether a particular expert report available to the domestic judge was reliable or not. The domestic judge normally has wide discretion in choosing amongst conflicting expert opinions and picking one which he or she deems consistent and credible. However, the rules on admissibility of evidence must not deprive the defence of the opportunity to challenge the findings of an expert effectively, in particular by introducing or obtaining alternative opinions and reports. In certain circumstances, the refusal to allow an alternative expert examination of material evidence may be regarded as a breach of Article 6.1 (Stoimenov v. the former Yugoslav Republic of Macedonia, 2007,.38; Matytsina v. Russia, 2014,§ 169) as it may be hard to challenge a report by an expert without the assistance of another expert in the relevant field (Khodorkovskiy and Lebedev v. Russia, 2013,.187). Moreover, a failure of the prosecution to disclose the technical details on which an expert report is based may impede the possibility for the defence to challenge the expert report and thus raise an issue of equality of arms under Article 6.1 (Kartoyev and Others v. Russia, 2021, §§ 71-73).
Equality of arms may also be breached when the accused has limited access to his case file or other documents on public-interest grounds (Matyjek v. Poland, 2007,.65; Moiseyev v. Russia, 2008,
The Court has found that unrestricted access to the case file and unrestricted use of any notes, including, if necessary, the possibility of obtaining copies of relevant documents, are important guarantees of a fair trial. The failure to afford such access has weighed in favour of finding that the principle of equality of arms had been breached (Beraru v. Romania, 2014,.70). In this context, importance is attached to appearances as well as to the increased sensitivity to the fair administration of justice. Respect for the rights of the defence requires that limitations on access by an accused or his lawyer to the court file must not prevent the evidence from being made available to the accused before the trial and the accused from being given an opportunity to comment on it through his lawyer in oral submissions (Öcalan v. Turkey [GC], 2005,.140). In some instances, however, an accused may be expected to give specific reasons for his request to access a particular document in the file (Matanović v. Croatia, 2017,§ 177).
Non-disclosure of evidence to the defence may breach equality of arms as well as the right to an adversarial hearing (Kuopila v. Finland, 2000,.38, where the defence was not given an opportunity to comment on a supplementary police report).
Adversarial Hearing (disclosure of evidence)
As a rule, Article 6.1 requires that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused (Rowe and Davis v. the United Kingdom [GC], 2000,.60). In this context, the relevant considerations can also be drawn from Article 6.3 (b), which guarantees to the applicant “adequate time and facilities for the preparation of his defence” (Leas v. Estonia, 2012,.80).4
An issue with regard to access to evidence may arise under Article 6 insofar as the evidence at issue is relevant for the applicant’s case, specifically if it had an important bearing on the charges held against the applicant. This is the case if the evidence was used and relied upon for the determination of the applicant’s guilt or it contained such particulars which could have enabled the applicant to exonerate oneself or have the sentence reduced. The relevant evidence in this context is not only evidence directly relevant to the facts of the case, but also other evidence that might relate to the admissibility, reliability and completeness of the former (Rowe and Davis v. the United Kingdom [GC], 2000,.66; Mirilashvili v. Russia, 2008,.200; Leas v. Estonia, 2012,.81; Matanović v. Croatia, 2017,§ 161).
The accused may, however, be expected to give specific reasons for his or her request for access to evidence, and the domestic courts are entitled to examine the validity of these reasons (C.G.P. v. the Netherlands, Commission decision of 15 January 1997; Janatuinen v. Finland, 2009,.45; Leas
v. Estonia, 2012,.81; Matanović v. Croatia, 2017.157). In any case, in systems where the prosecuting authorities are obliged by law to take into consideration both the facts for and against the suspect, a procedure whereby the prosecuting authorities themselves attempt to assess what may or may not be relevant to the case, without any further procedural safeguards for the rights of the defence, cannot comply with the requirements of Article 6.1 (Natunen v. Finland, 2009, §§ 47-49; Matanović v. Croatia, 2017, §§ 158, 181-182).
However, the entitlement to disclosure of relevant evidence is not an absolute right. In criminal proceedings there may be competing interests, such as national security or the need to protect witnesses who are at risk of reprisals or to keep secret the methods used by the police to investigate crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of anotherindividual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6.1 (Van Mechelen and Others v. the Netherlands, 1997,.58; Paci v. Belgium, 2018,.85). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (Rowe and Davis v. the United Kingdom [GC], 2000,.61; Doorson v. the Netherlands, 1996,.72)
In many cases where the evidence in question has never been revealed, it would not be possible for the Court to attempt to weigh the relevant interest involved against that of the accused without having sight of the material. It must therefore scrutinise the decision-making procedure to ensure that, as far as possible, it complied with the requirements to provide adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused (Dowsett v. the United Kingdom, 2003, §§ 42-43; Leas v. Estonia, 2012,.78).
In making its assessment of the relevant procedural guarantees, the Court must also have regard to the importance of the undisclosed material and its use in the trial (Jasper v. the United Kingdom [GC], 2000, §§ 54-55; M v. the Netherlands, 2017,.69, where the non-disclosed information could not have been in itself of any assistance to the defence). It must in particular satisfy itself that the domestic procedure allowed that the impact of the relevant material on the safety of the conviction be considered in the light of detailed and informed argument from the defence (Rowe and Davis v. the United Kingdom [GC], 2000,.66).
For instance, in Rowe and Davis v. the United Kingdom [GC], 2000, the Court found a violation of Article 6.1 on account of the prosecution’s failure to lay the evidence in question before the trial judge and to permit him to rule on the question of disclosure, thereby depriving the applicants of a fair trial. However, in Jasper v. the United Kingdom [GC], 2000 (§ 58), the Court found no violation of Article 6.1, relying on the fact that the material which was not disclosed formed no part of the prosecution case whatsoever, and was never put to the jury. In Edwards and Lewis v. the United Kingdom [GC], 2004, the applicants were denied access to the evidence, and hence it was not possible for their representatives to argue the case on entrapment in full before the judge. The Court accordingly found a violation of Article 6.1 because the procedure employed to determine the issues of disclosure of evidence and entrapment did not comply with the requirements to provide adversarial proceedings and equality of arms, nor did it incorporate adequate safeguards to protect the interests of the accused.
In the context of disclosure of evidence, complex issues may arise concerning the disclosure of electronic data, which may constitute a certain mass of information in hands of the prosecution. In such a case, an important safeguard in the sifting process is to ensure that the defence is provided with an opportunity to be involved in the laying-down of the criteria for determining what might be relevant for disclosure (Sigurður Einarsson and Others v. Iceland, 2019,.90; see also Rook v. Germany, §§ 67 and 72). Moreover, as regards identified or tagged data, any refusal to allow the defence to have further searches of such data carried out in principle raises an issue with regard to the provision of adequate facilities for the preparation of the defence (Sigurður Einarsson and Others v. Iceland, 2019,.91).
A breach of the right to an adversarial trial has also been found where the parties had not received the reporting judge’s report before the hearing, whereas the advocate-general had, nor had they had an opportunity to reply to the advocate-general’s submissions (Reinhardt and Slimane-Kaïd v. France, 1998, §§ 105-106).
Reasoning of judicial decisions
According to established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based (Moreira Ferreira v. Portugal (no. 2) [GC], 2017,.84; Papon v. France (dec.), 2001).
Reasoned decisions serve the purpose of demonstrating to the parties that they have been heard, thereby contributing to a more willing acceptance of the decision on their part. In addition, they oblige judges to base their reasoning on objective arguments, and also preserve the rights of the defence. National courts should indicate with sufficient clarity the grounds on which they base their decision. The reasoned decision is important so as to allow an applicant to usefully exercise any available right of appeal (Hadjianastassiou v. Greece, 1992). However, the extent of the duty to give reasons varies according to the nature of the decision and must be determined in the light of the circumstances of the case (Ruiz Torija v. Spain, 1994,.29).
Thus, for instance, in the context of the dismissal of a criminal appeal, consequent on a tie vote which existed as a possibility in the domestic order, the Court stressed that a tied vote did not constitute per se a violation of Article 6. In each case it was necessary to examine whether, in the particular circumstances of the case, the judgments resulting in the dismissal of the applicant’s appeal were reasoned enough to allow the applicant to understand why the dismissal was the result of the operation of the relevant domestic law, and whether that decision was clear enough as to its conclusion and outcome (Loizides v. Cyprus,.43, where the Court found no violation of Article 6.1).
While courts are not obliged to give a detailed answer to every argument raised (Van de Hurk v. the Netherlands, 1994,.61), it must be clear from the decision that the essential issues of the case have been addressed (Boldea v. Romania, 2007,.30; Lobzhanidze and Peradze v. Georgia, 2020,.66) and that a specific and explicit reply has been given to the arguments which are decisive for the outcome of the case (Moreira Ferreira v. Portugal (no. 2) [GC], 2017,.84; S.C. IMH Suceava S.R.L.
v. Romania, 2013,.40, concerning contradictions in the assessment of evidence; Karimov and Others
v. Azerbaijan, 2021,.29, concerning the allegations of imprisonment for debt).
Moreover, in cases relating to interference with rights secured under the Convention, the Court seeks to establish whether the reasons provided for decisions given by the domestic courts are automatic or stereotypical (Moreira Ferreira v. Portugal (no. 2) [GC], 2017,.84). In sum, an issue with regard to a lack of reasoning of judicial decisions under Article 6.1 of the Convention will normally arise when the domestic courts ignored a specific, pertinent and important point raised by the applicant (Nechiporuk and Yonkalo v. Ukraine, 2011,.280; see, in this context, Rostomashvili v. Georgia, 2018,.59; Zhang v. Ukraine, 2018,.73).
With regard to the manner in which the domestic judicial decisions are reasoned, a distinct issue arises when such decisions can be qualified as arbitrary to the point of prejudicing the fairness of proceedings. However, this will be the case only if no reasons are provided for a decision or if the reasons given are based on a manifest factual or legal error committed by the domestic court, resulting in a “denial of justice” (Moreira Ferreira v. Portugal (no. 2) [GC], 2017,.85; Navalnyy and Ofitserov
v. Russia, 2016,.119, concerning a politically motivated prosecution and conviction; Navalnyy
v. Russia [GC], 2018,.83; Paixão Moreira Sá Fernandes v. Portugal, 2020,.72; and Spasov v. Romania,* 2022, concerning a conviction based on domestic-law provisions that were manifestly contrary to directly applicable EU Regulations taking precedence).
Reasons for decisions given by juries
The Court has noted that several Council of Europe member States have a lay jury system, which is guided by the legitimate desire to involve citizens in the administration of justice, particularly in relation to the most serious offences. However, there is no right under Article 6.1 of the Convention to a jury trial (Twomey, Cameron and Guthrie v. the United Kingdom (dec.), 2013,.30). Juries in criminal cases rarely give reasoned verdicts and the relevance of this to fairness has been touched upon in a number of cases, first by the Commission and latterly by the Court.
The Convention does not require jurors to give reasons for their decision and Article 6 does not preclude a defendant from being tried by a lay jury even where reasons are not given for the verdict (Saric v. Denmark (dec.), 1999). Nevertheless, for the requirements of a fair trial to be satisfied, theaccused, and indeed the public, must be able to understand the verdict that has been given; this is a vital safeguard against arbitrariness (Taxquet v. Belgium [GC], 2010,.92; Legillon v. France, 2013,
In the case of assize courts sitting with a lay jury, any special procedural features must be accommodated, seeing that the jurors are usually not required – or not permitted – to give reasons for their personal convictions. In these circumstances, Article 6 requires an assessment of whether sufficient safeguards were in place to avoid any risk of arbitrariness and to enable the accused to understand the reasons for his conviction (Lhermitte v. Belgium [GC], 2016,.68). Such procedural safeguards may include, for example, directions or guidance provided by the presiding judge to the jurors on the legal issues arising or the evidence adduced and precise, unequivocal questions put to the jury by the judge, forming a framework on which the verdict is based or sufficiently offsetting the fact that no reasons are given for the jury’s answers (R. v. Belgium, Commission decision of 30 March 1992; Zarouali v. Belgium, Commission decision of 29 June 1994; Planka v. Austria, Commission decision of 15 May 1996; Papon v. France (dec.), 2001). Where an assize court refuses to put distinct questions in respect of each defendant as to the existence of aggravating circumstances, thereby denying the jury the possibility of determining the applicant’s individual criminal responsibility the Court has found a violation of Article 6.1 (Goktepe v. Belgium, 2005,.28).
In Bellerín Lagares v. Spain (dec.), 2003, the Court observed that the impugned judgment – to which a record of the jury’s deliberations had been attached – contained a list of the facts which the jury had held to be established in finding the applicant guilty, a legal analysis of those facts and, for sentencing purposes, a reference to the circumstances found to have had an influence on the applicant’s degree of responsibility in the case at hand. It therefore found that the judgment in question had contained sufficient reasons for the purposes of Article 6.1 of the Convention. In Matis
v. France (dec.), 2015, the Court held that a document that gave reasons for the judgment (feuille de motivation) by setting out the main charges which were debated during the proceedings, developed during the deliberations and ultimately formed the basis for the finding of guilt satisfied the requirements of sufficient reasoning.
Regard must be had to any avenues of appeal open to the accused (Taxquet v. Belgium [GC], 2010,.92). In this case only four questions were put as regards the applicant; they were worded in identical terms to the questions concerning the other co-accused and did not allow him to determine the factual or legal basis on which he was convicted. Thus, his inability to understand why he was found guilty led to an unfair trial (ibid.,.100).
In Judge v. the United Kingdom (dec.), 2011, the Court found that the framework surrounding a Scottish jury’s unreasoned verdict was sufficient for the accused to understand his verdict. Moreover, the Court was also satisfied that the appeal rights available under Scots law would have been sufficient to remedy any improper verdict by the jury. Under the applicable legislation, the Appeal Court enjoyed wide powers of review and was empowered to quash any conviction which amounts to a miscarriage of justice.
By contrast, in Rusishvili v. Georgia, §§ 76-80, the Court found that, in one of the first cases following a cardinal reform of the criminal procedure introducing jury trials in the domestic order, the appellate court needed to address the specific procedural complaints raised by the applicant and could not reject his appeal on points of law without providing any reasons. In this connection, the Court stressed that, having regard to the lack of reasons in jury verdicts, the role that an appellate court plays was crucial, as it was up to it to examine whether the various procedural safeguards functioned effectively and properly and whether a presiding judge’s handling of a jury trial resulted in unfairness.
In Lhermitte v. Belgium [GC], 2016 (§§ 75-85), the Court noted the following factors on the basis of which it found no violation of Article 6.1: procedural safeguards put in place during the trial (in particular, the applicant’s effective participation in the examination of evidence and the fact that the questions put by the president to the jury had been read out and the parties had been given a copy),the combined impact of the facts set out in the indictment and the nature of the questions put to the jury, the proper presentation of the sentencing judgment, and the limited impact of the expert opinions which had been at odds with the jury’s findings.
Similarly, in Ramda v. France, 2017 (§§ 59-71), concerning the reasoning of a judgment delivered by a special anti-terrorist assize court, the Court found no violation of Article 6.1 in light of the combined examination of the three carefully reasoned committal orders, the arguments heard both at first instance and on appeal, as well as the many detailed questions put to the Assize Court, which allowed the applicant to understand the guilty verdict against him.
Reasons for decisions given by superior courts
In dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s decision (García Ruiz v. Spain [GC], 1999,.26; Stepanyan v. Armenia, 2009,.35). With regard to the decision of an appellate court on whether to grant leave to appeal, the Court has held that Article 6.1 cannot be interpreted as requiring that the rejection of such leave be subject itself to a requirement to give detailed reasons (Sawoniuk v. the United Kingdom (dec.), 2001).
Nevertheless, when an issue arises as to the lack of any factual and/or legal basis of the lower court’s decision, it is important that the higher court gives proper reasons of its own (Tatishvili v. Russia, 2007,.62, concerning the civil limb). Moreover, in case of an explicit objection to the admissibility of evidence, the higher court cannot rely on that evidence without providing a response to such an argument (Shabelnik v. Ukraine (no. 2), 2017, §§ 50-55, concerning the reliance on an accused’s statements made in the context of a psychiatric examination).
In Baydar v. the Netherlands, 2018 (§§ 45-53), in the context of a decision by the domestic superior court refusing to refer a question to the Court of Justice of the European Union (CJEU) for a preliminary ruling (the relevant principles set out in the context of the civil limb in Dhahbi v. Italy, 2014,.31), the Court had regard to the principle according to which courts of cassation comply with their obligation to provide sufficient reasoning when they base themselves on a specific legal provision, without further reasoning, in dismissing cassation appeals which do not have any prospects of success (Talmane v. Latvia, 2016,.29). It held that this case-law was in line with the principles set out in Dhahbi v. Italy, 2014, and concluded that a reference to the relevant legal provision by the superior court, with an indication that there was no need to seek a preliminary ruling since the matter did not raise a legal issue that needed to be determined, provided for an implied acknowledgment that a referral to the CJEU could not lead to a different outcome in the case. The Court thus considered that this satisfied the requirement of a sufficient reasoning under Article 6.1.
Administration of Evidence
While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (Schenk
v. Switzerland, 1988, §§ 45-46; Moreira Ferreira v. Portugal (no. 2) [GC], 2017,.83; Heglas v. the Czech Republic, 2007,.84).
It is not, therefore, the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair (Ayetullah Ay v. Turkey, 2020, §§ 123-130). This involves an examination of the alleged unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found (Khan v. the United Kingdom, 2000,§ 34; P.G. and J.H. v. the United Kingdom, 2001,.76; Allan v. the United Kingdom, 2002,.42). Thus, for instance, the Court criticised the approach taken by the domestic courts to give decisive weight to the statements of the arresting police officers concerning the charges of rebellion against the applicant where the Government themselves recognised (in an unilateral declaration) that the circumstances of the arrest had been contrary to the prohibition of degrading treatment under Article 3 of the Convention (Boutaffala v. Belgium, §§ 87-88).
In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence have been respected. In particular, it must be examined whether the applicant was given an opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into consideration, as must the circumstances in which it was obtained and whether these circumstances cast doubt on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (Bykov v. Russia [GC], 2009,.89; Jalloh v. Germany [GC], 2006,.96). In this connection, the Court also attaches weight to whether the evidence in question was or was not decisive for the outcome of the criminal proceedings (Gäfgen v. Germany [GC], 2010,.164).
As to the examination of the nature of the alleged unlawfulness in question, the above test has been applied in cases concerning complaints that evidence obtained in breach of the defence rights has been used in the proceedings. This concerns, for instance, the use of evidence obtained through an identification parade (Laska and Lika v. Albania, 2010), an improper taking of samples from a suspect for a forensic analysis (Horvatić v. Croatia, 2013), exertion of pressure on a co-accused, including the questioning of a co-accused in the absence of a lawyer (Erkapić v. Croatia, 2013; Dominka v. Slovakia (dec.), 2018; Stephens v. Malta (no. 3), 2020, §§ 64-67; Tonkov v. Belgium, 2022, §§ 64-68); use of planted evidence against an accused (Layijov v. Azerbaijan, 2014,.64; Sakit Zahidov v. Azerbaijan, 2015, §§ 46-49; Kobiashvili v. Georgia, 2019, §§ 56-58), unfair use of other incriminating witness and material evidence against an accused (Ilgar Mammadov v. Azerbaijan (no. 2), 2017; Ayetullah Ay v. Turkey, 2020); use of self-incriminating statements in the proceedings (Belugin v. Russia, 2019,.68-80); and use of expert evidence in the proceedings (Erduran and Em Export Dış Tic A.Ş. v. Turkey, 2018, §§ 107-112; see also Avagyan v. Armenia, 2018,.41; Gülağacı v. Turkey (dec.), 2021, §§ 35-40; and Zayidov v. Azerbaijan (no. 3),* 2023,.89).
The same test has been applied in cases concerning the question whether using information allegedly obtained in violation of Article 8 as evidence rendered a trial as a whole unfair under the meaning of Article 6. This concerns, for instance, cases related to the use of evidence obtained by (unlawful) secret surveillance (Bykov v. Russia [GC], 2009, §§ 69-83; Khan v. the United Kingdom, 2000, § 34; Dragojević v. Croatia, 2015, §§ 127-135; Niţulescu v. Romania, 2015; Dragoş Ioan Rusu
v. Romania, 2017, §§ 47-50; Falzarano v. Italy (dec.), 2021, §§ 43-48; Lysyuk v. Ukraine, 2021, §§ 67- 76), and search and seizure operations (Khodorkovskiy and Lebedev v. Russia, 2013, §§ 699-705; Prade v. Germany, 2016; Tortladze v. Georgia, 2021, §§ 69, 72-76, concerning the search of the premises of an honorary consul; Budak v. Turkey, 2021, §§ 68-73 and 84-86, concerning, in particular, the importance of examining the issues relating to the absence of attesting witnesses).
However, particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. The use of such evidence, secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention, always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction (Jalloh v. Germany [GC], 2006, §§ 99 and 105; Harutyunyan v. Armenia, 2007,.63; see, by contrast, Mehmet Ali Eser v. Turkey, 2019,.41, where no statements obtained by coercion were in fact used in the applicant’s conviction).
Therefore, the use in criminal proceedings of statements obtained as a result of a violation of Article 3 – irrespective of the classification of the treatment as torture, inhuman or degrading treatment – renders the proceedings as a whole automatically unfair, in breach of Article 6 (Gäfgen v. Germany [GC], 2010,.166; Ibrahim and Others v. the United Kingdom [GC], 2016,.254; El Haski v. Belgium, 2012,.85; Cēsnieks v. Latvia, 2014, §§ 67-70). The same principles apply concerning the use in criminal proceedings of statements obtained as a result of ill-treatment by private parties (Ćwik v. Poland, 2020).
This also holds true for the use of real evidence obtained as a direct result of acts of torture (Gäfgen v. Germany [GC], 2010,.167; Jalloh v. Germany [GC], 2006,.105). The admission of such evidence obtained as a result of an act classified as inhuman treatment in breach of Article 3, but falling short of torture, will only breach Article 6 if it has been shown that the breach of Article 3 had a bearing on the outcome of the proceedings against the defendant, that is, had an impact on his or her conviction or sentence (Gäfgen v. Germany [GC], 2010,.178; El Haski v. Belgium, 2012,.85; Zličić v. Serbia, 2021,.119).
These principles apply not only where the victim of the treatment contrary to Article 3 is the actual defendant but also where third parties are concerned (El Haski v. Belgium, 2022,.85; Urazbayev v. Russia, 2019,.73). In particular, the Court has found that the use in a trial of evidence obtained by torture would amount to a flagrant denial of justice even where the person from whom the evidence had thus been extracted was a third party (Othman (Abu Qatada) v. the United Kingdom, 2012, §§ 263 and 267; Kaçiu and Kotorri v. Albania, 2013,.128; Kormev v. Bulgaria, 2017, §§ 89-90).
In this connection, it should be noted that the Court has held that the absence of an admissible Article 3 complaint does not, in principle, preclude it from taking into consideration the applicant’s allegations that the police statements had been obtained using methods of coercion or oppression and that their admission to the case file, relied upon by the trial court, therefore constituted a violation of the fair trial guarantee of Article 6 (Mehmet Duman v. Turkey, 2018,.42). Similar considerations apply where an applicant complains about the use of evidence allegedly obtained as a result of ill- treatment, which the Court could not establish on the basis of the material available to it (no substantive violation of Article 3 of the Convention). In such instances, in so far as the applicant made a prima facie case about the real evidence potentially obtained through ill‑treatment, the domestic courts have a duty to elucidate the circumstances of the case and their failure to do so may lead to a violation of Article 6 (Bokhonko v. Georgia, 2020,.96).
In Sassi and Benchellali v. France, 2021, §§ 89-102, the Court examined the applicants’ complaint about a lack of fairness of the criminal proceedings against them in France relating to the use of statements they had given to certain French authorities on a US base at Guantánamo. While the Court had previously noted allegations of ill-treatment and abuse of terrorist suspects held by the US authorities in this context, in the present case the applicants’ Article 3 complaint in respect of the French agents had been declared inadmissible. The Court, nevertheless, considered that it was required to examine, under Article 6, whether and to what extent the domestic courts had taken into consideration the applicants’ allegations of ill-treatment, even though it had allegedly been sustained outside the forum State, together with any potential impact on the fairness of the proceedings. In particular, the Court had to examine whether the domestic courts had properly addressed the objections raised by the applicants as to the reliability and evidential value of their statements and whether they had been given an effective opportunity to challenge the admissibility of those statements and to object to their use. On the facts, the Court found this to be the case. Noting also that the impugned statements had not been used as a basis either for the bringing of criminal proceedings against the applicants or for their conviction, the Court found no violation of Article 6.1 of the Convention.
An issue related to the administration of evidence in the proceedings arises also with regard to the admission of evidence provided by witnesses cooperating with the prosecution. In this connection, the Court has held that the use of statements made by witnesses in exchange for immunity or other advantages may put in question the fairness of the hearing granted to an accused and is capable of raising delicate issues since, by their very nature, such statements are open to manipulation and may be made purely in order to obtain advantages or for personal revenge. However, use of this kind of statement does not in itself suffice to render the proceedings unfair (Verhoek v. the Netherlands (dec.), 2004; Cornelis v. the Netherlands (dec.), 2004). In each case, in making its assessment, the Court will look at the proceedings as a whole, having regard to the rights of the defence but also to the interests of the public and the victims in the proper prosecution of the crime and, where necessary, to the rights of witnesses (Habran and Dalem v. Belgium, 2017,.96).
In this context, the Court will examine, in particular, whether: the defence knew the witness’s identity; the defence knew about the existence of an arrangement with the prosecution; the domestic court reviewed the arrangement; the domestic court paid attention to all possible advantages received by the witness; the arrangement was discussed at the trial; the defence had the opportunity to test the witness; the defence had the opportunity to test the members of the prosecution team involved; the domestic court was aware of the pitfalls of relying on accomplice testimony; the domestic court approached the testimony cautiously; the domestic court explained in detail why it believed the witness; untainted corroborating evidence existed; an appeal court reviewed the trial court’s findings in respect of the witness; and the issue was addressed by all the courts dealing with the various appeals (Xenofontos and Others v. Cyprus, 2022,.79).
In Adamčo v. Slovakia, 2019, §§ 56-71, concerning the conviction based to a decisive degree on statements by an accomplice arising from a plea-bargaining arrangement, the Court found a violation of Article 6 of the Convention having regard to the following considerations: the statement constituted, if not the sole, then at least the decisive evidence against the applicant; the failure by the domestic courts to examine the wider context in which the witness obtained advantages from the prosecution; the fact that the plea-bargaining agreement with the prosecution was concluded without the judicial involvement; and the domestic courts’ failure to provide the relevant reasoning concerning the applicant’s arguments.
By contrast, in Kadagishvili v. Georgia, 2020, §§ 156-157, the Court did not consider that the reliance on the statements of suspects, who had concluded plea-bargaining agreements with the prosecution, rendered the trial as a whole unfair. The Court laid emphasis on the fact that the plea- bargaining procedure had been carried out in accordance with the law and was accompanied by adequate judicial review. Moreover, the witnesses concerned gave statements to the trial court in the applicants’ case, and the latter had ample opportunity to cross-examine them. It was also important for the Court that no finding of fact in the plea-bargaining procedure was admitted in the applicants’ case without full and proper examination at the applicants’ trial.
Lastly, it should be noted that in some instances, a positive obligation may arise on the part of the authorities to investigate and collect evidence in favour of the accused. In V.C.L. and A.N. v. the United Kingdom, 2021, §§ 195-200, concerning a case of human trafficking where the victims of trafficking were prosecuted for drug-related offences (committed in relation to their trafficking), the Court stressed that evidence concerning an accused’s status as a victim of trafficking should be considered as a “fundamental aspect” of the defence which he or she should be able to secure without restriction. In this connection, the Court referred to the positive obligation on the State under Article 4 of the Convention to investigate situations of potential trafficking.5 In the case at issue, the Court considered that the lack of a proper assessment of the applicants’ status as victims of trafficking prevented the authorities from securing evidence which may have constituted a fundamental aspect of their defence.